Protecting Access to Healthcare Act

Floor Speech

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Ms. WATERS. Thank you very much, Mr. Conyers, former chair of the Judiciary Committee, ranking member, and a gentleman who has provided superb leadership in opposition to H.R. 5.

Mr. Chairman, I rise in strong opposition to H.R. 5, poorly titled Protecting Access to Healthcare, the so-called PATH Act, an unconstitutional, Big Government bill that violates the 10th Amendment and states' rights.

At the very start of the 112th Congress, my colleagues on the opposite side of the aisle declared that all business conducted in the House would be consistent with the Constitution. Yet if you read the constitutional authority statement attached to H.R. 5, the Republican sponsors seem to believe that the Commerce Clause magically creates a path for Congress to mandate nationwide caps on punitive damages in all medical malpractice lawsuits. The Republicans are telling all Americans, no matter how severe the injury or egregious the mistake by the doctor, hospital or drug manufacturer, that their losses are going to be capped at $250,000.

And with all due respect to the gentleman from Georgia, Representative Gingrey, who introduced H.R. 5, even his own State supreme court has found caps on punitive damages to be unconstitutional. In 2010, the Georgia supreme court unanimously struck down limits on jury awards in medical malpractice cases. The Georgia court determined that a $350,000 cap on noneconomic damages violates the right to a jury trial as guaranteed under the Georgia Constitution.

Section 110(a) of H.R. 5 would impose an even lower cap on damages in Georgia, effectively overturning the court's decision by an act of Congress. The section reads:

The provisions governing health care lawsuits set forth in this Act preempt, subject to subsections (b) and (c), State law to the extent that State law prevents the application of any provisions of law established by or under this Act.

In addition to Georgia, other States like Arizona, Pennsylvania, Wyoming
and Kentucky whose State constitutions specifically prohibit damage limitations will have their constitutions overruled by Congress.

For Members who have for years now questioned the constitutionality of the Affordable Care Act, you need but take a look at H.R. 5. H.R. 5 goes far beyond anything passed by the Democratic majority. If you don't believe me, just listen to Tea Party Nation founder Judson Phillips. In slamming H.R. 5 he wrote:

Whether you think tort reform is a good idea or not, it is an issue that belongs to the States, not to the Federal Government. Tort law has always been governed by the States.

Now, I didn't say that, Mr. Conyers didn't say that, and Ms. Jackson Lee didn't say that. None of those who have been over here this evening opposing H.R. 5 and laying out the facts and the consequences of H.R. 5 said this. Let me repeat. I am quoting Tea Party Nation founder Judson Phillips:

Whether you think tort reform is a good idea or not, it is an issue that belongs to the States, not to the Federal Government. Tort law has always been governed by the States.

Even some of my Republican colleagues on the Judiciary Committee have expressed concerns. Congressman Poe, Republican from Texas said:

I believe that each individual State should allow the people of that State to decide--not the Federal Government. If the people of a particular State don't want liability caps, that's their prerogative under the 10th Amendment.

Well, let's listen to what Congressman Louie Gohmert, Republican of Texas, said:

The right of the States for self-determination is enshrined in the 10th Amendment. I am reticent to support Congress imposing its will on the States by dictating new State law in their own State courts.

To my conservative colleagues in this Chamber, don't be tricked. Don't be fooled. H.R. 5, simply and clearly put, violates states' rights. Reject this unconstitutional piece of legislation, protect States' constitutional rights to set tort law and just vote ``no'' on H.R. 5.

Now, let me just wrap this up by saying that the gentleman from Georgia referred over and over again, constantly, this evening about frivolous Californians. And he talked about these juries who didn't take into consideration the facts on these negligence cases, but rather looked at the insurance and said, oh, just give them whatever, they didn't care. Well, I came to defend California and to tell you the difference between what happened in tort reform in California and what you have been told by the gentleman from Georgia.

Supporters of H.R. 5 claim that it is the same as MICRA, a medical malpractice liability law passed in California in 1975. H.R. 5 is far different from MICRA, except that neither law delivered on lower insurance premiums. The differences are clear:

H.R. 5 applies damage caps in all ``health care lawsuits,'' including cases against drug companies, nursing homes, insurance companies and HMOs. MICRA only applies to malpractice cases against a doctor or a hospital.

Punitive damages are reserved for only the most egregious medical malpractice; they are meant to deter future dangerous conduct. H.R. 5 limits punitive damages. MICRA does not cap punitive damages.

H.R. 5 gives total immunity from punitive damages to drug and device manufacturers if their products have been approved by the FDA or are ``generally recognized as safe and effective.'' MICRA does not provide this kind of sweeping immunity for the drug industry.

H.R. 5 caps noneconomic damages at $250,000 in the aggregate, no matter how many parties have been damaged by medical malpractice, even when an injury results in loss of a marital relationship. California law recognizes a separate claim for loss of consortium--claims brought by the spouse of an injured patient. MICRA does not limit these claims.

Joint and several liability, which my leader asked you about, Mr. Gingrey, enables an individual to bring one claim against any of the parties involved in a medical malpractice injury and ensures that injured victims are fully compensated. H.R. 5 completely eliminates joint liability for both economic and noneconomic losses. California law only limits joint liability for noneconomic damages.

H.R. 5 and MICRA are alike in one main respect--by themselves, neither law can deliver on lower medical malpractice insurance premiums.

H.R. 5 includes unprecedented legal protections for the insurance industry, but no guarantee that any future savings will be passed onto doctors or patients.

Following the passage of MICRA, insurance premiums for doctors increased in California by 450 percent over the next 13 years. Premiums only decreased after California enacted Proposition 103, a ballot initiative that mandated a 20 percent rollback in premium rates. I was in the California legislature when that happened.

H.R. 5 does not guarantee lower premium rates for doctors. In fact, the bill only mentions insurance companies when giving them protection from liability.

So, again, I say, don't be fooled, don't be tricked. I don't really mean to imply, Mr. Gingrey, that you are trying to fool or trick anybody, but you're simply wrong. We have given our opposition in more ways than one this evening to H.R. 5. But since you alluded to or talked about or pointed directly to California and all of these people who simply have frivolous lawsuits and these poor juries who sit and don't take into consideration the facts and simply look at how much insurance is available and just award these tremendous amounts, I had to add to my testimony this evening a defense and an explanation and show the difference between MICRA and H.R. 5.

I think I have done that, and I think I have done that with the facts that exist. I am very pleased that I have been able to join with my colleagues this evening to not only reveal what H.R. 5 is and is not, but I think we have made the case. I think that we have put the facts forward in such a way that we're going to win on this issue. I ask you to oppose H.R. 5.

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