Recognition Of The Minority Leader

Floor Speech

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Mr. DURBIN. I thank the chairman.

Madam President, the Senator from Alabama has just said to the Senate: Slow down; you are going too fast on health care reform here.

Today, across America, 14,000 Americans will lose their health insurance. Tomorrow, 14,000 Americans will lose their health insurance. Monday, the same, and every day of the week.

Are we going too fast? The first time this issue came before us was over 100 years ago. Theodore Roosevelt, a Republican, said: We need to talk about health care for all Americans. It was a cause that was repeated by Franklin Roosevelt, certainly by Harry Truman and Lyndon Johnson. For 100 years now, there have always been voices in the Senate who have said: Slow down, you are going too fast.

This year, 45,000 Americans will die because they do not have health insurance. We are the only civilized country in the world--the only Western industrialized, developed country in the world--where a person can die because they do not have health insurance. That is a fact of life.

Slow down, they say on the other side of the aisle; you are going too fast. Well, we are here on a Saturday. It is a rare occurrence for the Senate to meet on Saturday, but I am glad we are here. If there were ever a time we should be here, it is right now. And we are here to discuss this bill--a 2,000-page bill. You know what went into this bill? Two committees: the Senate Finance Committee, under the leadership of the Senate Finance Committee chairman, Max Baucus of Montana, and the HELP Committee, now chaired by Senator Dodd of Connecticut. They spent days and weeks preparing this bill. Why did it take that long? Because health care represents $1 out of every $6 spent in America--one-sixth of our economy. It is that big a deal. And we produced this bill, this 2,075-page bill, after the considered effort of Democrats and Republicans writing it over the course of 1 year. Yet the other side says: Slow down.

You know what, the American people ought to ask our Republican friends: Where is your bill? Why haven't you prepared a bill? You have had a year to do it. You knew this was coming. I know you have many ideas because we have heard them in speeches, we have seen them in charts, and we have seen them in press releases. But we don't see a bill. Nothing. It leads you to two conclusions--one of two. This is too hard to do, so they didn't do it, too difficult to write a bill, so they didn't do it, or they really don't believe we need to change the current system. Well, they are wrong.

Today, health protection for Americans is not affordable. The cost of health insurance is going up so fast--faster than wages, faster than businesses can keep up with it--and people are being tossed aside, one after the other. Fourteen thousand Americans a day are losing health insurance because they lost their job or the business they work for says: We just can't pay the premiums anymore. That is the reality.

This bill makes health insurance more affordable, No. 1 and, No. 2, this bill, at the end of the day, means that 94 percent of the people living in America will have health insurance. We have never in our history ever reached that level of protection--94 percent. I wish it were 100 percent, but it is 94 percent. Have the Republicans produced a bill that adds health insurance protection for anyone in America? No. Nothing.

There is something else this bill does, and it took a lot of hard work to achieve it. This bill not only tackles health reform, but it reduces our deficit, and we should. This is a debt our kids are carrying. So Senator Baucus and the Finance Committee worked with Senator Reid of Nevada. This bill, by the Congressional Budget Office estimates, will reduce the deficit by $130 billion in the first 10 years, $650 billion in the next 10. How does it do that? Well, if the cost of health care goes down, the cost of government goes down for the same health care--real savings. Have the Republicans, who stand here day after day saying we have to do something about the deficit, produced a health care reform bill that reduces it? No. Nothing. They have nothing to bring to us.

Let me talk about one other aspect of this bill that is critically important. This bill gives to the American families and consumers, for the first time in a long time, a fighting chance against the health insurance companies. Do you know what they do to you? Do you know what happens when you get sick? You not only have to battle your illness, you have to battle your insurance company. Your doctor says you need this prescription, your doctor says you need this surgery, and then the doctor calls some clerk in some office in the middle of nowhere who says: Not covered. We are not paying for it. And do you know what happens next? The battle rages. It isn't just you against the disease; it is you against your insurance company. Do you know what they do? They turn you down. They say: We looked at your application for insurance, and you forgot to mention a preexisting condition, such as acne, when you were a teenager. I am not making that up. You didn't take into consideration that there is a limit on how much we will pay, and when you get really sick, we just stop paying. You didn't realize that you thought your child was covered by your family health insurance company, but your young son just reached the age of 24 and he is not covered anymore. He is on his own.

Well, we take care of every one of those things in this bill. We give families, for the first time in history, a fighting chance to take on these insurance companies--real reform. I have yet to hear the first Republican come to the floor and endorse that concept. Why? Because the health insurance companies hate it. This is how they make money.

Did you see what Aetna just announced? Aetna is one of the biggest health insurers. Their CEO makes a very modest $24 million a year in salary--$24 million. They had their most profitable quarter ever, and they announced they need more. So in order to add to their profits next year and add to the payments to their CEO and their shareholders, they are going to take 650,000 people out of coverage at Aetna. They are going to drop the people they think may just get sick someday. So they try to cherry-pick the healthiest people to keep their profits high. What is going to happen to those 650,000 people? Do you think they are going to join in the chorus from the other side that says slow down when it comes to health insurance for everybody in this country? Of course not.

Senator Lincoln has an amendment that challenges the CEOs of these health insurance companies and says: Enough is enough. We will let you deduct from your taxes, we will give you a subsidy for $400,000 in income for a CEO of a health insurance company--that is how much the President gets paid, incidentally--but beyond that, we will not let you deduct it. We won't subsidize these obscene bonuses and payments to the health insurance executives. That is part of this as well.

I also think it is great to hear our colleagues on the other side of the aisle with their newfound belief in Medicare. They come before us and say: You know, we are standing here to fight for Medicare. That is what this battle is really all about. Historically, that party has not stood to fight for Medicare; they have stood to fight Medicare. They opposed it when it was created, they have tried to privatize it, and they have basically ridiculed it as a government health insurance program. But for 45 million Americans, it is a lifeline to insurance when they retire so that their savings don't melt away and disappear because of high health care bills.

Most of our colleagues have ignored a vote they just cast 2 days ago. One of the most important votes we have had on the floor--in addition to Senator Mikulski's amendment which helped the women of America get preventive health services--was the amendment of Senator Michael Bennet of Colorado. He offered an amendment that basically said any of the savings that come forward out of this Medicare change in this bill have to be put into giving sound financial footing to Medicare, more services for the elderly, and making certain we protect the services that are already guaranteed. That passed 100 to 0. My friends on the other side of the aisle know that. They all voted for it.

So we are protecting Medicare. We are going to put it on sound financial footing. And for the 45 million people currently receiving it and those who look forward to it in the future, this bill will make Medicare stronger.

Slow down? No, we are not slowing down. This time, we are going to pass health care reform. This time, we are going to make America a healthier country with quality, affordable health care for everybody.

Madam President, I yield the floor.

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Mr. DURBIN. I thank the Chair.

Mr. President, this issue is very personal and very important. I know a little bit about this because many years ago, before coming to Congress, I was a trial lawyer. I spent many years defending doctors when they were sued for medical malpractice, and I spent as many years representing plaintiffs who claimed to be victims of medical malpractice. I have literally been at both tables in the courtroom. At least in a previous life, I knew a little bit about this field of legal practice.

What the Senator from Nevada is trying to do is to reduce the contingency fee that can be paid to a lawyer who represents a plaintiff.

Here is how it works. If you believe you or a member of your family has been a victim of medical malpractice, where you have either been hurt or someone in your family has died, you will go to a lawyer and say: I don't think I was treated right.

The lawyer will say to you: If I think you have a good case we can prove in court, I will represent you. But I know you don't have enough money to pay me my legal fee. I will take your case, accept your case on a contingency, which means if you win, I get paid, and if you lose, I don't get paid.

That is what a contingency fee is. For most Americans who are not wealthy, this is the only way they can get a good attorney to go into court, is to pay a percentage if they win, a contingency fee. That is one side, one table in the courtroom.

There is another table in the courtroom. At that table sits the doctor or hospital and an attorney. That attorney isn't paid on a contingency fee; that attorney is paid by the hour, by the insurance company. No matter how many hours that attorney puts into the case, that attorney is confident at the end of the day he will be paid, win or lose.

The Senator from Nevada comes here and says: We think it would be just to limit how much victims' attorneys can get paid. I waited patiently and listened, hoping that at some point he would say: And in all fairness, we think defense attorneys should be limited in what they are paid too. But I didn't hear that because what it gets down to is really not about attorneys. If we are about making it fair and equal for both tables in the courtroom, we would limit both attorneys' fees. No. What this is all about is to discourage attorneys from representing victims, limit the amount of money a plaintiff's attorney can receive as a contingency fee.

There has been a lot said about frivolous lawsuits for medical malpractice. I want to tell you, as a person who did this for a living, the last thing in the world I would ever consider doing is taking a frivolous lawsuit. It costs a fortune. At the end of the day, you are likely to lose. You can't keep the doors open and the lights on in a law practice taking lawsuits that are going to lose, taking on frivolous cases. You carefully weigh the cases you take because you, as a plaintiff's attorney representing a victim, have to make a massive time-and-dollar commitment to bring that case to trial, realizing that at the end of the day, if there is a ``not guilty,'' you are emptyhanded. You have nothing to show for all of that effort and all of that money spent. That is what is behind contingency fee cases.

That is why the Senator from Nevada has focused on only one table in the courtroom--the victims' table--saying we want to discourage lawyers from taking on victims' medical malpractice cases, we want to discourage them by paying them less. Defense lawyers--no limit whatsoever on how much the insurance company can pay them. That is the Ensign amendment in summary.

I am sorry in a way that Senator Ensign has invoked Senator Kennedy's name to support his effort. I am sorry that Senator Kennedy is not here because I think I know what Ted Kennedy, sitting right back here, would be saying at this very moment. He would explain to the Senator from Nevada that the amendment he is referring to was part of the Gingrich revolution, which some may recall, which was an attempt to change tort reform laws across America with some onerous provisions--removing, for example, the right of people to recover punitive damages in a lawsuit, all sorts of limitations or bars against filing lawsuits. It was an onerous law which Senator Kennedy offered his amendment to in the hopes of slowing it down. Senator Kennedy was not successful. At the end of the day, this bill passed, this Gingrich revolution bill passed. It was sent to President Clinton, who vetoed it. So to suggest this was Senator Kennedy's life's work--it was his attempt to slow down a steaming locomotive coming through the Senate. It didn't work. To invoke his name at this point is to at least not tell the whole story behind the amendment.

If you are going to tell the whole story about this amendment, you need to get beyond lawyers and start talking about victims going into courtrooms.

For the longest time, the argument on the other side of the aisle has been, if you go into a courtroom saying you are the victim of medical malpractice and prove that you are, they want to limit the amount of money a jury can give you for your injury. They used to call it caps. Right now, if you are a victim of medical malpractice and you are successful in a courtroom, you are likely to recover your medical bills and your lost income and some money for what they call noneconomic damages. Those would be scarring, disfigurement, pain and suffering. So what most of the effort has been on the other side is to limit the amount you can recover for these noneconomic losses--scarring, disfigurement, pain and suffering. For people who have proven they were the victims of malpractice, they have tried to limit the amount they can take from a jury. In over half the States in the Nation, those limitations or caps have been put in place.

What is the scope of this problem? The Institute of Medicine tells us--at least this was a finding they made back in 1999--that there are up to 98,000 deaths in America each year, preventable deaths, because of medical malpractice--98,000. When you look across the board at the number of paid malpractice claims each year against doctors in America, it is about 11,000. One in 10 of the deaths and injuries--frankly, a much smaller number than 1 in 10--actually ends up in a lawsuit. So the vast majority of victims of medical malpractice don't bring a lawsuit. Either they don't know they were victims or they decide it is not something they want to do. A very small percentage do.

What the Senator from Nevada did not tell us is that since 2003, when this issue has been addressed by so many States, the number of medical malpractice lawsuits each year has gone down and continues to go down. The premiums for medical malpractice insurance have started to come down as well. So there is a positive trend here because of State reform and other circumstances which have led to fewer medical malpractice lawsuits.

But make no mistake, there are still victims and there still will be. We have to be honest about what those victims face and what the Ensign amendment will mean. What the Ensign amendment means is that many of them won't be able to find a lawyer. Some of them should. Let me tell you some real-life stories of victims of medical malpractice and what happened to them.

This beautiful couple, Molly Akers of New Lenox, IL, and her husband tell a story that is heartbreaking. Molly had a swelling in her breast, and her doctor performed a biopsy and determined she had breast cancer. She had several mammograms which found no evidence of a tumor. The doctors decided, however, that it must have been some rare form of breast cancer, and they said that Molly, to be safe, needed a mastectomy. They removed her right breast. After the operation, the doctor called her into the office and revealed that they discovered she never had breast cancer. Instead, the radiologist who reviewed her slides accidentally switched Molly's slides with those of another woman. Molly was permanently disfigured because of this mistake, this negligence.

She said:

I never thought something like this could happen to me, but I now know that medical malpractice can ruin your life.

By the way, the other woman, whose slides were switched with Molly's, was told she was cancer free. That was a medical error that ended up injuring two people, not just one.

Is she entitled to her day in court? Is she entitled to be compensated for what she went through? Is she entitled to have at least those responsible pay for her medical bills, her lost wages, pain and suffering, scars and disfigurement? By most standards of justice, the answer would be yes. But if she isn't rich enough to pay an attorney's fee, she walks in and says: The best I can do is tell you that if I win, you win. It will be a contingency fee basis to the lawyer. What the Senator from Nevada wants to do is to reduce the likelihood that she will find a lawyer to represent her.

This is another story of another person from Illinois. Glenn Steinberg is shown here. In 2004, Glenn went for surgery in Chicago to remove a tumor from his abdomen. Ten days after surgery, while he was still in the hospital, he was having pain and problems. They did an xray of his abdomen and they found a 4-inch metal retractor lodged against his intestine that had been left in his body after the surgery. A second surgery was performed to remove this metal instrument, during which time Glenn's lungs aspirated and he died. Glenn's wife Mary lost her husband. She said:

Not a day goes by that I don't miss Glenn's companionship and the joy he brought to our home. Because of gross negligence, he was not here to support me when my son went off to serve our country in Iraq.

A real-life story. This man did nothing wrong--an innocent victim who, in our system of justice, is entitled to compensation. But if his widow didn't have enough money to pay the attorney's fees and went in for a contingency fee, she might be limited because of the amendment offered by the Senator from Nevada.

This next case in Illinois involves children. I have met the little fellow we are going to talk about, Martin Hartnett. He is the second boy from the right. When Martin's mother, Donna, arrived at the hospital to deliver him, her labor was not progressing. Her doctor broke her water and found it was abnormal. Rather than considering a C-section, Donna's doctor tried administering a drug to help induce contractions. Six hours later, Donna still hadn't delivered, but her son's fetal-monitoring system began indicating he was in severe respiratory distress. The doctor finally decided it was time to perform an emergency C-section but waited another hour before she was taken to the operating room. During that time, the doctor failed to administer oxygen or take other immediate steps to help Martin breathe.

After Martin was born, he was in intensive care for 3 weeks. Later, Donna learned that Martin had substantial brain damage and cerebral palsy--a direct result of the doctor's failure to respond to indications of serious oxygen deprivation and to deliver in a timely manner.

Donna's doctor told her not to have any more children because he said there was a serious problem with her DNA which could result in similar disabilities in the future.

Well, that turned out not to be true. Donna has given birth since to three perfectly healthy sons who are shown in this photo as well. Donna sued the doctor responsible for Martin's delivery and received a settlement in the case. Here she is, a young mother who is being told the problem was her problem, and it turned out it was a problem in the way she was treated when she went to the hospital.

Again, the Senator from Nevada would reduce the likelihood that Donna--the mother of this child who is going to face a lifetime of challenges--would have the attorney to come to court for reasonable compensation.

These are real-life examples. I know the other side--the Senator from Nevada said specifically: Oh, you are going to hear about the victims, but this is really about lawyers.

These victims would not have their day in court, would not have a chance to recover from medical malpractice that was eventually admitted or proven if it were not for an attorney to bring them to court. It does take a long time. I will concede, the Senator from Nevada said it takes a long time on these cases. Well, I have been there, and I know why. The attorneys representing the other side try to drag it out as long as they possibly can, filing motions and requiring discovery. It can go on and on. So an attorney who takes up one of these cases better not take up a frivolous case because it will be a lifetime of futility if you take that approach.

I took a look and asked my staff: Well, if Senator Ensign's amendment is dealing with victims' attorneys, are they really getting paid a lot more compared to the defense attorneys? Well, we went and looked at the information. We found that in a recent year, there was around $1.3 billion paid to victims' attorneys who filed medical malpractice cases in America--$1.3 billion. At the same time, $2.1 billion was paid to defense attorneys.

So to argue we just want to reduce the plaintiffs' or the victims' attorneys' fees and ignore the defense attorneys' fees is to ignore a mismatch already. The defense attorneys in America are being paid substantially more--50 percent more--than those who represent the victims.

In 2008, in Texas, medical malpractice insurers earned $369 million in premiums. They paid out $17 million in losses. If one-third of that, say $5.5 million, went to victims' attorneys, how much went to defense attorneys in medical malpractice cases in Texas? Mr. President, $41 million. So $5.5 million for plaintiffs' attorneys, $41 million for defense attorneys.

This amendment does not even address the cost of defense attorneys.

In Tennessee, in 2008 malpractice insurers paid $79 million in losses to victims, so perhaps $26 million went to victims' attorneys' fees, and $83 million was paid in defense attorney fees.

There is no similar outrage on the other side of the aisle when it comes to how much money the defense attorneys are being paid.

In the State of Mississippi in 2008 they paid out $874,000 in losses, and paid $4.1 million in defense attorneys' fees.

So it just goes on and on. The evidence is clear. Overwhelmingly, in the courtroom, the race goes to the swift, and the swiftest are the ones with the most resources--the most attorneys, the most discovery, the most expert witnesses, and they all cost money. Time and again, plaintiffs' attorneys come into many courtrooms at a distinct disadvantage to the insurance companies that would be benefited by this.

Now, what are we going to do about this issue? And it is an issue. Well, I think the President is on the right track. First, we know it is a State issue when it comes to medical malpractice. Historically, the States set the standards, and the States initiate the reforms. A majority of States have already done that, limiting recoveries, even limiting fees in some cases. They have done it. Why would we come in at the Federal level and preempt that?

Secondly, the President said: Let's encourage some positive thinking about ways to end this. How can you reduce the number of medical malpractice lawsuits? There is one simple way, and many States have discovered it. It is when a doctor walks in and says to a patient: I made a mistake, and I am sorry. It sounds simple, doesn't it?

It happened in my family recently. One of the members of my family went for back surgery and had complications afterwards. It went on for weeks. He went in, and the doctor said: I am sorry. When I did your back surgery, I should have cauterized you right then and there rather than waiting through 2 miserable weeks until we finally did it. It was my mistake.

Well, my relative did not file a lawsuit. That doctor was honest. We know doctors are human. They make mistakes. Some States have protected the doctors' right to say: I am sorry. Many times that is all that is needed. There are other cases where States have put together panels to review lawsuits before they are filed. They do it successfully. There are other cases where they have to file an affidavit from a doctor that says this is a lawsuit with a real possibility of medical malpractice being proven.

All of these things are working, and we want to encourage them. But, please, do not close the door of the courtroom to victims and their attorneys. Do not benefit the defense attorneys, the insurance attorneys, at the expense of the victims' attorneys.

Mr. BROWN. Mr. President, will the Senator yield?

Mr. DURBIN. I am happy to.

Mr. BROWN. I say thank you to Senator Durbin.

My understanding is, some States have stricter licensing requirements for doctors, and that typically very few doctors, relatively, commit significant, repeated mistakes as they are practicing medicine. But some small number of doctors are responsible for the large number of medical errors and negligence and malpractice.

How important is it that the States strengthen their licensing requirements so those doctors--the small minority of doctors--who really do seem guilty of the most malpractice are disciplined either by losing their license or by being disciplined in other ways so they are not inflicting this on their patients?

Mr. DURBIN. I think the Senator from Ohio has put his finger on a part of the problem. It turns out, the vast majority of lawsuits involve a very small percentage of doctors, many of whom are making errors repeatedly. I would recommend to my friend from Ohio a book to read, and I know he reads them. It is called ``Complications.'' It is by Dr. Atul Gawande, who is a Boston surgeon with whom we are familiar. I read it, and it was an eye opener about what a surgeon learns and goes through. But he spends a whole chapter in there about doctors and nurses of practicing doctors who are not up to skill anymore because of age, alcoholism, and drug addiction, and they are afraid to speak out.

That is not common. It is rare. But it should not happen at all. Those doctors who consistently make mistakes, consistently get sued, or have these problems should be identified and removed from the practice until they can be rehabilitated or go off to another job.

Mr. BROWN. If the Senator will yield for a moment, again, don't the State licensing boards have the ability to do disciplinary action? I know in my State, in Columbus, they do. Are they not doing that enough? Is there a way to strengthen that?

Mr. DURBIN. The point Dr. Gawande makes is there is this conspiracy of silence, this fear of outing a doctor.

Mr. BROWN. Nurses are not willing to speak up?

Mr. DURBIN. Nurses are not willing to speak up, other colleagues are not willing to speak up, and they should for the sake of their own profession, but certainly for the sake of the patients.

Mr. BROWN. So the Senator is arguing that if there was a mechanism or an environment where nurses and doctors would be willing to speak up, if there was a doctor, a surgeon who had a problem with alcohol, this issue would not go away certainly, but this issue would be much less serious, the issue of malpractice, the medical errors, the deaths, the injuries that come from some kind of medical error? Medical malpractice would be much alleviated?

Mr. DURBIN. I am.

I see my time is over. I thank the Senator from Ohio, and I would say this is one part of the answer. But denying victims a day in court I do not think brings justice to this country or fairness, and I know Senator Kennedy would be saying the same thing if he were here today.

I yield the floor.

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