Medical Liability Reform

MEDICAL LIABILITY REFORM

Mr. CORNYN. Mr. President, it was 1 year ago today that the voters in my home State of Texas passed proposition 12, a referendum that paves the way for substantive medical liability reform and provides hope that quality health care will win out over the interests of a handful of politically powerful personal injury lawyers.

The people of Texas spoke, and the doctors across the State are reopening their doors. In fact, two obstetricians in the small town of Fredericksburg, TX, announced their return with an advertisement in the local newspaper that proclaimed: "We're Back!"

One of these obstetricians, Dr. David Cantu, had been working for more than 10 years as an obstetrician with no claims, but he and his partner had to quit practicing obstetrics because of the cost of insurance. Dr. Cantu's overhead was hitting 100 percent, and he had a 3-month stretch with no pay.

As soon as they stopped delivering babies, the practice saw an immediate decrease in insurance costs, but their patients were forced to travel elsewhere to have their babies delivered. This was doubly difficult for them considering the fact that 70 percent of Dr. Cantu's patients are Medicaid patients, and 40 percent were Spanish speaking.

But with proposition 12, Dr. Cantu and his partner are now able to deliver babies again. Proposition 12 has placed a $250,000 cap on noneconomic damages in medical liability cases. When Dr. Cantu was asked, How has that helped you and your patients, he said:

Because now I come out ahead instead of paying to be an Obstetrician. Prop. 12 made the practice of Obstetrics affordable.

When it comes to health care, I strongly believe the proper role of Government is to protect the freedom of all of us to improve our own health and to deal with our own health care needs. We must ensure that decisions about a patient's health are not made by the Government but by individuals and families; that is, between the patient and his or her doctor.

Patients and their doctors-not lawyers, not bureaucrats-should be trusted to decide what treatment is best for them. I strongly believe when people have good choices in health care, it ultimately translates into higher quality and better care.

Dr. Cantu's story shows us that our current medical liability system is the biggest challenge we face in this regard. Our current system is wasteful and dangerous, and it too often serves the interests of greed, not justice and common sense. The overall results of our current system are sky-high costs for liability insurance, costs that have created a crisis of enormous proportions-a crisis that is threatening quality of care, diminishing access to care, and exploding the cost of care.

But there is hope. Evidence is mounting that reforms such as proposition 12 in the State of Texas are working. We can see that in real terms and not just because of advertisements of doors to doctors' offices reopening. Even though these reforms have been in place for only 1 year in Texas, early results are encouraging.

After a decrease in Texas insurance carriers from 17 to 4-that is the number of medical liability insurance companies that would actually insure a physician or a health care provider against medical liability claims-proposition 12 has created an environment where 10 different carriers have now sought reentry into the Texas market to write physician policies. The largest insurer in the State, Texas Medical Liability Trust, reduced its premiums by 12 percent. A Texas hospital association survey shows, for hospitals in our State, a 17-percent reduction across the board.

Why this response? Lawsuits against hospitals are down 70 percent from last summer's race to the courthouse, when Texas courts were flooded by personal injury lawyers with more than 10,000 medical malpractice lawsuits, shortly before voters approved proposition 12.

Let me repeat that because it is important for everyone to understand. Knowing that proposition 12 was likely to pass, personal injury trial lawyers filed more than 10,000 medical liability lawsuits shortly before the reform was to take effect in order to beat the people's mandate that health care should be more widely available and, certainly, medical liability insurance available more readily to more physicians. Why? To help doctors, to help hospitals and the corporations that own those hospitals?

Everybody knows that corporations don't practice medicine, and the only way you can get your baby treated or yourself treated is to have a doctor who will see you. So what we are talking about is not a benefit directly to doctors or the hospitals; what we are talking about is a benefit to patients-in other words, to all of us-as a result of this commonsense reform.

The best news is that doctors such as David Cantu are responding. In Austin, 16 new obstetricians have started their practice in the last year, reversing a trend over the previous 2½ years when Austin lost 16 obstetricians due to the medical liability crisis. Driscoll Children's Hospital is recruiting close to a dozen new pediatric specialists, three neonatologists, two cardiologists, a hematologist, a general surgeon, and four other specialists, something they could not do under the earlier environment.

These successes are not limited to just the State of Texas. A recent study by the Rand Institute found that California's 1975 medical liability reform, known as MICRA, reduced defendants' liabilities by 30 percent and plaintiffs' attorneys fees by 60 percent. That was a means to an end because the result in California has been that insurance rates have actually risen at a rate of about two-thirds of what the rate has been in the rest of the Nation. These are signs that reforms such as proposition 12, or California's MICRA, have worked. Yet still we find that in the U.S. Senate today, we are unable to get a solution for families all across the Nation in States that have no such reforms in place. This is a national problem and it calls for a national solution.

I want to say a few words about our Nation's need for serious medical liability reform and the U.S. Senate's appalling refusal to address that problem with real solutions. Unfortunately, special interests continue to win out over mainstream America, and our health care system continues to bear the burden of costly and frivolous lawsuits. We see that medical care and medical liability insurance rates continue to grow unabated.

I couldn't help but notice this quote from Senator Kerry at the Democratic National Convention in his acceptance speech. He noted specifically:

Since 2000, four million people have lost their health insurance. Millions more are struggling to afford it. You know what's happening. Your premiums, your co-payments, your deductibles have all gone through the roof.

I am actually very pleased to hear this acknowledgment by the Senator from Massachusetts, recognizing the seriousness of our situation. He is right about one thing: These are real problems, and they deserve real and immediate solutions.

With all due respect, he and some of our colleagues in the Senate continue to avoid the most obvious and primary cause of escalating health care costs and the decrease in availability of medical liability insurance and the consequential lack of access to real health care-that is, runaway lawsuits.

Three times in the 108th Congress alone Republican leadership has brought meaningful medical liability reform to the Senate which, if passed, President Bush would readily sign into law. This chart shows three different bills that have been brought to the Senate floor by the majority leader: S. 11, the Patients First Act of 2003; S. 2061, the Healthy Mothers and Healthy Babies Access to Care Act; and S. 2207, the Pregnancy and Trauma Care Access Protection Act.

Over a year ago, the majority leader brought forth a comprehensive reform proposal known as S. 11. Earlier we brought forth two additional proposals which dealt more with specialty practices such as obstetricians who deliver babies and emergency room physicians, hoping that even if we were not able to get broad medical liability reform, we might be able to achieve it for those specialties that are most acutely affected and where access to health care hits the hardest.

I do not begin to claim that the legislative proposals we have advanced were the only solution to the problems. Indeed, I applaud other reforms. But it is clear, as this chart indicates, that each time we have tried to come up with a solution, we have been denied an opportunity to go forward with the debate and to have amendments, if any Senator wished to offer amendments, and to try to get good, commonsense medical liability reform that would increase access to health care.

I don't believe medical liability reform is the only problem that confronts our health care system today. I applaud many other reforms that have been proposed by the President and others, including the innovation of health savings accounts, which were part of the Medicare bill we passed about a year ago, and the use of new technology to make the practice of medicine more efficient and to reduce the likelihood of medical errors. These and other reforms do represent commonsense proposals that hold great promise, not only for improved health care but to make sure the cost of health care remains affordable and thus more available to more people.

Above all, it is clear that any of these bills would offer much-needed relief to the health care system brought to a state of crisis by politically powerful personal injury lawyers in as many as 23 States across the country. I find it sad that any special interest group-and the Senators voting according to the wishes of those groups and not the American people, a list that includes the Democratic nominees for President and Vice President-has denied us the opportunity on each of these three occasions to begin the debate, begin the legislative process, and hopefully accomplish meaningful reform and improve access to health care. But we were denied even the chance to debate and vote on the issue, even when a bipartisan majority of this body agrees that we need reform and we have the tools to effect that reform within our reach. Their choice to deny us that opportunity was not ours; it was theirs. To this day, those who obstruct meaningful medical liability reform leave the American people with the sad reality of the status quo, a broken civil justice system and little hope for a national solution.

While the problem persists in all aspects of our health care system, the crisis is particularly acute among specialty doctors-for example, neurosurgeons, brain and spinal surgeons, emergency room physicians, and, notably, obstetricians and gynecologists, the doctors who actually care for women who are pregnant and who deliver their babies. A handful of powerfully connected personal injury lawyers is seriously jeopardizing patient care for women and their newborns. I and others find that completely unacceptable.

Across the country liability insurance for obstetrician/gynecologists has become prohibitively expensive. Premiums have tripled and quadrupled, leaving OB/GYNs without the ability to get liability insurance at all as insurance companies fold or stop insuring doctors.

This last week, the Washington Post wrote an article on a malpractice insurer, known as NCRIC, right here in the District of Columbia, which is "feeling the squeeze," losing over $4 million in 2003 alone.

This chart shows that 23 States are on red alert-in a medical liability crisis-while just 3, including Texas, are in crisis pending effect of reform. Others noted by the hash marks on the chart are those where the crisis is still brewing.

These skyrocketing medical malpractice premiums literally are driving physicians out of business and leaving Americans without access to quality health care. Between 2002 and 2003, rates rose as much as 40 percent in some States, with the impact hitting specialty doctors such as obstetricians/gynecologists the hardest.

When an OB/GYN cannot find or afford medical liability insurance, they are forced to stop delivering babies, forced to curtail surgical services, or close their doors altogether. Now more than one in seven across the Nation is simply leaving the profession and walking away.

For example, in my home State of Texas, the entire obstetrics unit at Spring Branch Medical Center in Houston was forced to close just prior to an expected 2003 increase of 67 percent in the hospital's medical liability premiums.

Today, because the effects of proposition 12 have not been fully realized, out of 254 counties in Texas-one of the States in crisis pending effect of the reforms-more than half of the counties in Texas simply do not have available a single doctor who specializes in delivering babies. In many cases, doctors simply chose to stop serving certain patients to avoid costly litigation; or even if they were not involved in litigation, they were still forced to pay ultra-high medical liability premiums, making it simply impossible to make ends meet.

One rural obstetrics/gynecologist who serves mostly Medicaid, or poor patients, was forced to stop seeing high-risk patients altogether because his insurance premiums had increased 300 percent.

The effects are felt almost entirely by the poorer members of our society who depend, of course, on Medicaid to help them with their health care premiums.

Perhaps most disconcerting of all, however, is the trend of doctors engaging in defensive medical practice. When we ask why is the cost of health care going up so dramatically and why are health care premiums paid by employers or by self-employed persons going up so dramatically, it is in part because of the effect of defensive medicine-physicians who provide tests and services, not because they think it is medically indicated but because they simply want to defend themselves against a potential lawsuit.

According to the Department of Health and Human Services, a majority of doctors say they recommend invasive procedures and painful tests they consider unnecessary in medical terms in hopes of avoiding litigation. That is the point we have reached.

The most basic principles of justice require that we embrace national reform as soon as possible, striving to protect access both to the courts and to our hospitals and to physicians. As a matter of principle, those who are wrongly injured deserve their day in court; there is no question about that. We all agree. If a doctor is responsible or negligent, he or she should be held fully accountable. But the sad fact is that the current system does not foster accountability. Instead, it has nearly destroyed any hope for quality and affordable health care in America. The time for that to change is now and we must change it.

It is time for Congress to act and to provide a national solution so all Americans can benefit from medical liability reform, so all Americans can open their newspapers and see an advertisement from their neighborhood doctor, who may have once been forced out of his practice now happily, proclaiming: We are back.

I yield the floor.