[Pages H6974-H7013]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HELP EFFICIENT, ACCESSIBLE, LOW-COST, TIMELY HEALTHCARE (HEALTH) ACT OF
2005
Mr. SMITH of Texas. Mr. Speaker, pursuant to House Resolution 385 and
as the designee of the majority leader, I call up the bill (H.R. 5) to
improve patient access to health care services and provide improved
medical care by reducing the excessive burden the liability system
places on the health care delivery system, and ask for its immediate
consideration.
The Clerk read the title of the bill.
The text of H.R. 5 is as follows:
H.R. 5
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Help Efficient, Accessible,
Low-cost, Timely Healthcare (HEALTH) Act of 2005''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--
(1) Effect on health care access and costs.--Congress finds
that our current civil justice system is adversely affecting
patient access to health care services, better patient care,
and cost-efficient health care, in that the health care
liability system is a costly and ineffective mechanism for
resolving claims of health care liability and compensating
injured patients, and is a deterrent to the sharing of
information among health care professionals which impedes
efforts to improve patient safety and quality of care.
(2) Effect on interstate commerce.--Congress finds that the
health care and insurance industries are industries affecting
interstate commerce and the health care liability litigation
systems existing throughout the United States are activities
that affect interstate commerce by contributing to the high
costs of health care and premiums for health care liability
insurance purchased by health care system providers.
(3) Effect on federal spending.--Congress finds that the
health care liability litigation systems existing throughout
the United States have a significant effect on the amount,
distribution, and use of Federal funds because of--
(A) the large number of individuals who receive health care
benefits under programs operated or financed by the Federal
Government;
(B) the large number of individuals who benefit because of
the exclusion from Federal taxes of the amounts spent to
provide them with health insurance benefits; and
(C) the large number of health care providers who provide
items or services for which the Federal Government makes
payments.
(b) Purpose.--It is the purpose of this Act to implement
reasonable, comprehensive, and effective health care
liability reforms designed to--
(1) improve the availability of health care services in
cases in which health care liability actions have been shown
to be a factor in the decreased availability of services;
(2) reduce the incidence of ``defensive medicine'' and
lower the cost of health care liability insurance, all of
which contribute to the escalation of health care costs;
(3) ensure that persons with meritorious health care injury
claims receive fair and adequate compensation, including
reasonable noneconomic damages;
(4) improve the fairness and cost-effectiveness of our
current health care liability system to resolve disputes
over, and provide compensation for, health care liability by
reducing uncertainty in the amount of compensation provided
to injured individuals; and
(5) provide an increased sharing of information in the
health care system which will reduce unintended injury and
improve patient care.
[[Page H6975]]
SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.
The time for the commencement of a health care lawsuit
shall be 3 years after the date of manifestation of injury or
1 year after the claimant discovers, or through the use of
reasonable diligence should have discovered, the injury,
whichever occurs first. In no event shall the time for
commencement of a health care lawsuit exceed 3 years after
the date of manifestation of injury unless tolled for any of
the following--
(1) upon proof of fraud;
(2) intentional concealment; or
(3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of
the injured person.
Actions by a minor shall be commenced within 3 years from the
date of the alleged manifestation of injury except that
actions by a minor under the full age of 6 years shall be
commenced within 3 years of manifestation of injury or prior
to the minor's 8th birthday, whichever provides a longer
period. Such time limitation shall be tolled for minors for
any period during which a parent or guardian and a health
care provider or health care organization have committed
fraud or collusion in the failure to bring an action on
behalf of the injured minor.
SEC. 4. COMPENSATING PATIENT INJURY.
(a) Unlimited Amount of Damages for Actual Economic Losses
in Health Care Lawsuits.--In any health care lawsuit, nothing
in this Act shall limit a claimant's recovery of the full
amount of the available economic damages, notwithstanding the
limitation in subsection (b).
(b) Additional Noneconomic Damages.--In any health care
lawsuit, the amount of noneconomic damages, if available, may
be as much as $250,000, regardless of the number of parties
against whom the action is brought or the number of separate
claims or actions brought with respect to the same injury.
(c) No Discount of Award for Noneconomic Damages.--For
purposes of applying the limitation in subsection (b), future
noneconomic damages shall not be discounted to present value.
The jury shall not be informed about the maximum award for
noneconomic damages. An award for noneconomic damages in
excess of $250,000 shall be reduced either before the entry
of judgment, or by amendment of the judgment after entry of
judgment, and such reduction shall be made before accounting
for any other reduction in damages required by law. If
separate awards are rendered for past and future noneconomic
damages and the combined awards exceed $250,000, the future
noneconomic damages shall be reduced first.
(d) Fair Share Rule.--In any health care lawsuit, each
party shall be liable for that party's several share of any
damages only and not for the share of any other person. Each
party shall be liable only for the amount of damages
allocated to such party in direct proportion to such party's
percentage of responsibility. Whenever a judgment of
liability is rendered as to any party, a separate judgment
shall be rendered against each such party for the amount
allocated to such party. For purposes of this section, the
trier of fact shall determine the proportion of
responsibility of each party for the claimant's harm.
SEC. 5. MAXIMIZING PATIENT RECOVERY.
(a) Court Supervision of Share of Damages Actually Paid to
Claimants.--In any health care lawsuit, the court shall
supervise the arrangements for payment of damages to protect
against conflicts of interest that may have the effect of
reducing the amount of damages awarded that are actually paid
to claimants. In particular, in any health care lawsuit in
which the attorney for a party claims a financial stake in
the outcome by virtue of a contingent fee, the court shall
have the power to restrict the payment of a claimant's damage
recovery to such attorney, and to redirect such damages to
the claimant based upon the interests of justice and
principles of equity. In no event shall the total of all
contingent fees for representing all claimants in a health
care lawsuit exceed the following limits:
(1) 40 percent of the first $50,000 recovered by the
claimant(s).
(2) 33\1/3\ percent of the next $50,000 recovered by the
claimant(s).
(3) 25 percent of the next $500,000 recovered by the
claimant(s).
(4) 15 percent of any amount by which the recovery by the
claimant(s) is in excess of $600,000.
(b) Applicability.--The limitations in this section shall
apply whether the recovery is by judgment, settlement,
mediation, arbitration, or any other form of alternative
dispute resolution. In a health care lawsuit involving a
minor or incompetent person, a court retains the authority to
authorize or approve a fee that is less than the maximum
permitted under this section. The requirement for court
supervision in the first two sentences of subsection (a)
applies only in civil actions.
SEC. 6. ADDITIONAL HEALTH BENEFITS.
In any health care lawsuit involving injury or wrongful
death, any party may introduce evidence of collateral source
benefits. If a party elects to introduce such evidence, any
opposing party may introduce evidence of any amount paid or
contributed or reasonably likely to be paid or contributed in
the future by or on behalf of the opposing party to secure
the right to such collateral source benefits. No provider of
collateral source benefits shall recover any amount against
the claimant or receive any lien or credit against the
claimant's recovery or be equitably or legally subrogated to
the right of the claimant in a health care lawsuit involving
injury or wrongful death. This section shall apply to any
health care lawsuit that is settled as well as a health care
lawsuit that is resolved by a fact finder. This section shall
not apply to section 1862(b) (42 U.S.C. 1395y(b)) or section
1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social Security
Act.
SEC. 7. PUNITIVE DAMAGES.
(a) In General.--Punitive damages may, if otherwise
permitted by applicable State or Federal law, be awarded
against any person in a health care lawsuit only if it is
proven by clear and convincing evidence that such person
acted with malicious intent to injure the claimant, or that
such person deliberately failed to avoid unnecessary injury
that such person knew the claimant was substantially certain
to suffer. In any health care lawsuit where no judgment for
compensatory damages is rendered against such person, no
punitive damages may be awarded with respect to the claim in
such lawsuit. No demand for punitive damages shall be
included in a health care lawsuit as initially filed. A court
may allow a claimant to file an amended pleading for punitive
damages only upon a motion by the claimant and after a
finding by the court, upon review of supporting and opposing
affidavits or after a hearing, after weighing the evidence,
that the claimant has established by a substantial
probability that the claimant will prevail on the claim for
punitive damages. At the request of any party in a health
care lawsuit, the trier of fact shall consider in a separate
proceeding--
(1) whether punitive damages are to be awarded and the
amount of such award; and
(2) the amount of punitive damages following a
determination of punitive liability.
If a separate proceeding is requested, evidence relevant only
to the claim for punitive damages, as determined by
applicable State law, shall be inadmissible in any proceeding
to determine whether compensatory damages are to be awarded.
(b) Determining Amount of Punitive Damages.--
(1) Factors considered.--In determining the amount of
punitive damages, if awarded, in a health care lawsuit, the
trier of fact shall consider only the following--
(A) the severity of the harm caused by the conduct of such
party;
(B) the duration of the conduct or any concealment of it by
such party;
(C) the profitability of the conduct to such party;
(D) the number of products sold or medical procedures
rendered for compensation, as the case may be, by such party,
of the kind causing the harm complained of by the claimant;
(E) any criminal penalties imposed on such party, as a
result of the conduct complained of by the claimant; and
(F) the amount of any civil fines assessed against such
party as a result of the conduct complained of by the
claimant.
(2) Maximum award.--The amount of punitive damages, if
awarded, in a health care lawsuit may be as much as $250,000
or as much as two times the amount of economic damages
awarded, whichever is greater. The jury shall not be informed
of this limitation.
(c) No Punitive Damages for Products That Comply With FDA
Standards.--
(1) In general.--
(A) No punitive damages may be awarded against the
manufacturer or distributor of a medical product, or a
supplier of any component or raw material of such medical
product, based on a claim that such product caused the
claimant's harm where--
(i)(I) such medical product was subject to premarket
approval, clearance, or licensure by the Food and Drug
Administration with respect to the safety of the formulation
or performance of the aspect of such medical product which
caused the claimant's harm or the adequacy of the packaging
or labeling of such medical product; and
(II) such medical product was so approved, cleared, or
licensed; or
(ii) such medical product is generally recognized among
qualified experts as safe and effective pursuant to
conditions established by the Food and Drug Administration
and applicable Food and Drug Administration regulations,
including without limitation those related to packaging and
labeling, unless the Food and Drug Administration has
determined that such medical product was not manufactured or
distributed in substantial compliance with applicable Food
and Drug Administration statutes and regulations.
(B) Rule of construction.--Subparagraph (A) may not be
construed as establishing the obligation of the Food and Drug
Administration to demonstrate affirmatively that a
manufacturer, distributor, or supplier referred to in such
subparagraph meets any of the conditions described in such
subparagraph.
(2) Liability of health care providers.--A health care
provider who prescribes, or who dispenses pursuant to a
prescription, a medical product approved, licensed, or
cleared by the Food and Drug Administration shall not be
named as a party to a product liability lawsuit involving
such product and shall not be liable to a claimant in a class
action lawsuit against the manufacturer, distributor, or
seller of such product. Nothing in this paragraph prevents a
court from consolidating cases involving health care
providers and cases involving products liability claims
against the manufacturer,
[[Page H6976]]
distributor, or product seller of such medical product.
(3) Packaging.--In a health care lawsuit for harm which is
alleged to relate to the adequacy of the packaging or
labeling of a drug which is required to have tamper-resistant
packaging under regulations of the Secretary of Health and
Human Services (including labeling regulations related to
such packaging), the manufacturer or product seller of the
drug shall not be held liable for punitive damages unless
such packaging or labeling is found by the trier of fact by
clear and convincing evidence to be substantially out of
compliance with such regulations.
(4) Exception.--Paragraph (1) shall not apply in any health
care lawsuit in which--
(A) a person, before or after premarket approval,
clearance, or licensure of such medical product, knowingly
misrepresented to or withheld from the Food and Drug
Administration information that is required to be submitted
under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301
et seq.) or section 351 of the Public Health Service Act (42
U.S.C. 262) that is material and is causally related to the
harm which the claimant allegedly suffered; or
(B) a person made an illegal payment to an official of the
Food and Drug Administration for the purpose of either
securing or maintaining approval, clearance, or licensure of
such medical product.
SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO
CLAIMANTS IN HEALTH CARE LAWSUITS.
(a) In General.--In any health care lawsuit, if an award of
future damages, without reduction to present value, equaling
or exceeding $50,000 is made against a party with sufficient
insurance or other assets to fund a periodic payment of such
a judgment, the court shall, at the request of any party,
enter a judgment ordering that the future damages be paid by
periodic payments. In any health care lawsuit, the court may
be guided by the Uniform Periodic Payment of Judgments Act
promulgated by the National Conference of Commissioners on
Uniform State Laws.
(b) Applicability.--This section applies to all actions
which have not been first set for trial or retrial before the
effective date of this Act.
SEC. 9. DEFINITIONS.
In this Act:
(1) Alternative dispute resolution system; adr.--The term
``alternative dispute resolution system'' or ``ADR'' means a
system that provides for the resolution of health care
lawsuits in a manner other than through a civil action
brought in a State or Federal court.
(2) Claimant.--The term ``claimant'' means any person who
brings a health care lawsuit, including a person who asserts
or claims a right to legal or equitable contribution,
indemnity or subrogation, arising out of a health care
liability claim or action, and any person on whose behalf
such a claim is asserted or such an action is brought,
whether deceased, incompetent, or a minor.
(3) Collateral source benefits.--The term ``collateral
source benefits'' means any amount paid or reasonably likely
to be paid in the future to or on behalf of the claimant, or
any service, product or other benefit provided or reasonably
likely to be provided in the future to or on behalf of the
claimant, as a result of the injury or wrongful death,
pursuant to--
(A) any State or Federal health, sickness, income-
disability, accident, or workers' compensation law;
(B) any health, sickness, income-disability, or accident
insurance that provides health benefits or income-disability
coverage;
(C) any contract or agreement of any group, organization,
partnership, or corporation to provide, pay for, or reimburse
the cost of medical, hospital, dental, or income disability
benefits; and
(D) any other publicly or privately funded program.
(4) Compensatory damages.--The term ``compensatory
damages'' means objectively verifiable monetary losses
incurred as a result of the provision of, use of, or payment
for (or failure to provide, use, or pay for) health care
services or medical products, such as past and future medical
expenses, loss of past and future earnings, cost of obtaining
domestic services, loss of employment, and loss of business
or employment opportunities, damages for physical and
emotional pain, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of enjoyment
of life, loss of society and companionship, loss of
consortium (other than loss of domestic service), hedonic
damages, injury to reputation, and all other nonpecuniary
losses of any kind or nature. The term ``compensatory
damages'' includes economic damages and noneconomic damages,
as such terms are defined in this section.
(5) Contingent fee.--The term ``contingent fee'' includes
all compensation to any person or persons which is payable
only if a recovery is effected on behalf of one or more
claimants.
(6) Economic damages.--The term ``economic damages'' means
objectively verifiable monetary losses incurred as a result
of the provision of, use of, or payment for (or failure to
provide, use, or pay for) health care services or medical
products, such as past and future medical expenses, loss of
past and future earnings, cost of obtaining domestic
services, loss of employment, and loss of business or
employment opportunities.
(7) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the
provision of health care goods or services or any medical
product affecting interstate commerce, or any health care
liability action concerning the provision of health care
goods or services or any medical product affecting interstate
commerce, brought in a State or Federal court or pursuant to
an alternative dispute resolution system, against a health
care provider, a health care organization, or the
manufacturer, distributor, supplier, marketer, promoter, or
seller of a medical product, regardless of the theory of
liability on which the claim is based, or the number of
claimants, plaintiffs, defendants, or other parties, or the
number of claims or causes of action, in which the claimant
alleges a health care liability claim. Such term does not
include a claim or action which is based on criminal
liability; which seeks civil fines or penalties paid to
Federal, State, or local government; or which is grounded in
antitrust.
(8) Health care liability action.--The term ``health care
liability action'' means a civil action brought in a State or
Federal Court or pursuant to an alternative dispute
resolution system, against a health care provider, a health
care organization, or the manufacturer, distributor,
supplier, marketer, promoter, or seller of a medical product,
regardless of the theory of liability on which the claim is
based, or the number of plaintiffs, defendants, or other
parties, or the number of causes of action, in which the
claimant alleges a health care liability claim.
(9) Health care liability claim.--The term ``health care
liability claim'' means a demand by any person, whether or
not pursuant to ADR, against a health care provider, health
care organization, or the manufacturer, distributor,
supplier, marketer, promoter, or seller of a medical product,
including, but not limited to, third-party claims, cross-
claims, counter-claims, or contribution claims, which are
based upon the provision of, use of, or payment for (or the
failure to provide, use, or pay for) health care services or
medical products, regardless of the theory of liability on
which the claim is based, or the number of plaintiffs,
defendants, or other parties, or the number of causes of
action.
(10) Health care organization.--The term ``health care
organization'' means any person or entity which is obligated
to provide or pay for health benefits under any health plan,
including any person or entity acting under a contract or
arrangement with a health care organization to provide or
administer any health benefit.
(11) Health care provider.--The term ``health care
provider'' means any person or entity required by State or
Federal laws or regulations to be licensed, registered, or
certified to provide health care services, and being either
so licensed, registered, or certified, or exempted from such
requirement by other statute or regulation.
(12) Health care goods or services.--The term ``health care
goods or services'' means any goods or services provided by a
health care organization, provider, or by any individual
working under the supervision of a health care provider, that
relates to the diagnosis, prevention, or treatment of any
human disease or impairment, or the assessment or care of the
health of human beings.
(13) Malicious intent to injure.--The term ``malicious
intent to injure'' means intentionally causing or attempting
to cause physical injury other than providing health care
goods or services.
(14) Medical product.--The term ``medical product'' means a
drug, device, or biological product intended for humans, and
the terms ``drug'', ``device'', and ``biological product''
have the meanings given such terms in sections 201(g)(1) and
201(h) of the Federal Food, Drug and Cosmetic Act (21 U.S.C.
321) and section 351(a) of the Public Health Service Act (42
U.S.C. 262(a)), respectively, including any component or raw
material used therein, but excluding health care services.
(15) Noneconomic damages.--The term ``noneconomic damages''
means damages for physical and emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of
domestic service), hedonic damages, injury to reputation, and
all other nonpecuniary losses of any kind or nature.
(16) Punitive damages.--The term ``punitive damages'' means
damages awarded, for the purpose of punishment or deterrence,
and not solely for compensatory purposes, against a health
care provider, health care organization, or a manufacturer,
distributor, or supplier of a medical product. Punitive
damages are neither economic nor noneconomic damages.
(17) Recovery.--The term ``recovery'' means the net sum
recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim,
including all costs paid or advanced by any person. Costs of
health care incurred by the plaintiff and the attorneys'
office overhead costs or charges for legal services are not
deductible disbursements or costs for such purpose.
(18) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, the Trust Territory of the Pacific Islands,
and any other
[[Page H6977]]
territory or possession of the United States, or any
political subdivision thereof.
SEC. 10. EFFECT ON OTHER LAWS.
(a) Vaccine Injury.--
(1) To the extent that title XXI of the Public Health
Service Act establishes a Federal rule of law applicable to a
civil action brought for a vaccine-related injury or death--
(A) this Act does not affect the application of the rule of
law to such an action; and
(B) any rule of law prescribed by this Act in conflict with
a rule of law of such title XXI shall not apply to such
action.
(2) If there is an aspect of a civil action brought for a
vaccine-related injury or death to which a Federal rule of
law under title XXI of the Public Health Service Act does not
apply, then this Act or otherwise applicable law (as
determined under this Act) will apply to such aspect of such
action.
(b) Other Federal Law.--Except as provided in this section,
nothing in this Act shall be deemed to affect any defense
available to a defendant in a health care lawsuit or action
under any other provision of Federal law.
SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.
(a) Health Care Lawsuits.--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. The provisions governing
health care lawsuits set forth in this Act supersede chapter
171 of title 28, United States Code, to the extent that such
chapter--
(1) provides for a greater amount of damages or contingent
fees, a longer period in which a health care lawsuit may be
commenced, or a reduced applicability or scope of periodic
payment of future damages, than provided in this Act; or
(2) prohibits the introduction of evidence regarding
collateral source benefits, or mandates or permits
subrogation or a lien on collateral source benefits.
(b) Protection of States' Rights and Other Laws.--(1) Any
issue that is not governed by any provision of law
established by or under this Act (including State standards
of negligence) shall be governed by otherwise applicable
State or Federal law.
(2) This Act shall not preempt or supersede any State or
Federal law that imposes greater procedural or substantive
protections for health care providers and health care
organizations from liability, loss, or damages than those
provided by this Act or create a cause of action.
(c) State Flexibility.--No provision of this Act shall be
construed to preempt--
(1) any State law (whether effective before, on, or after
the date of the enactment of this Act) that specifies a
particular monetary amount of compensatory or punitive
damages (or the total amount of damages) that may be awarded
in a health care lawsuit, regardless of whether such monetary
amount is greater or lesser than is provided for under this
Act, notwithstanding section 4(a); or
(2) any defense available to a party in a health care
lawsuit under any other provision of State or Federal law.
SEC. 12. APPLICABILITY; EFFECTIVE DATE.
This Act shall apply to any health care lawsuit brought in
a Federal or State court, or subject to an alternative
dispute resolution system, that is initiated on or after the
date of the enactment of this Act, except that any health
care lawsuit arising from an injury occurring prior to the
date of the enactment of this Act shall be governed by the
applicable statute of limitations provisions in effect at the
time the injury occurred.
SEC. 13. SENSE OF CONGRESS.
It is the sense of Congress that a health insurer should be
liable for damages for harm caused when it makes a decision
as to what care is medically necessary and appropriate.
The SPEAKER pro tempore. Pursuant to House Resolution 385, the Chair
at any time may postpone further consideration of the bill until a time
designated by the Speaker.
The gentleman from Texas (Mr. Smith) and the gentleman from Michigan
(Mr. Conyers) each will control 1 hour.
The Chair recognizes the gentleman from Texas (Mr. Smith).
General Leave
Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 5.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I strongly support the HEALTH Act, which is identical to
two other bills that passed the House during the last Congress. The
HEALTH Act is modeled on California's Medical Injury Compensation
Reform Act, called MICRA, which has resulted in California's medical
liability premiums increasing only one-third as much as they have in
other States.
MICRA's reforms, which are included in the HEALTH Act, include a
$250,000 cap on noneconomic damages; limits on the contingency fees
lawyers can charge; a fair-share rule by which damages are allocated in
direct proportion to fault; reasonable guidelines, but not caps, on the
award of punitive damages; and a safe harbor from punitive damages for
products that meet FDA safety requirements.
{time} 1330
According to the nonpartisan organization Jury Verdict Research, the
median medical liability award has more than doubled in the last 7
years to $1.2 million.
Doctors and other health care providers are being forced to abandon
patients and practices, particularly in high-risk specialties such as
emergency medicine, brain surgery and obstetrics and gynecology.
Women are particularly hard hit, as are low-income neighborhoods and
rural areas. According to a report by the Department of Health and
Human Services, ``Unless a State has adopted limitations on noneconomic
damages, the cost of these awards for noneconomic damages is paid by
all other Americans through higher health care costs, higher health
insurance premiums, higher taxes, reduced access to quality care, and
threats to quality of care.''
Many doctors are no longer available to treat patients. Mary Rasar's
father did not get the medical care he needed following a car accident
last summer, because the only trauma center in his area closed for 10
days due to medical liability costs. Her father died from those
injuries.
Melinda Sallard, a 22-year-old mother, was forced to deliver her own
baby on the side of the road after her physician stopped delivering
babies and her hospital's maternity department closed because of rising
medical liability costs.
Leanne Dyess' husband Tony sustained head injuries in a car accident
and could not find a neurosurgeon to treat him because rising liability
costs had forced insurers to drop their coverage. Tony was airlifted to
a hospital in another State that still had neurosurgeons, but 6 hours
had passed, and it was too late. As a result Tony suffered permanent
brain damage.
In my hometown, the CEO of San Antonio's Methodist Children's
Hospital has seen his premiums increase 400 percent. He has been sued
three times. In one case the only interaction with the person suing was
that he stepped in her child's hospital room and asked simply, how is
your child doing? Each jury cleared him of any wrongdoing, and the
total amount of time all three juries spent deliberating was less than
an hour. But the doctor's insurance company spent a great deal of time,
effort and money in his defense.
It is no surprise the American College of Emergency Physicians found
that large majorities of both rural and urban hospitals had inadequate
on-call specialists coverage. And there has been a 40 percent reduction
in medical students entering obstetrics and gynecology.
According to the chair of the OB/GYN department at the Yale School of
Medicine, ``Within 2 years we will be faced with a very real
possibility of having to shut down our high-risk obstetrical practice,
a practice that cares for the sickest mothers in the State.''
As for legitimate cases of medical malpractice, nothing in the HEALTH
Act prevents juries from awarding very large amounts to victims,
including children. The HEALTH Act does not limit in any way an award
of economic damages to injured victims. Economic damages include lost
wages or home services, medical costs, the cost of pain-reducing drugs,
therapy and lifetime rehabilitation care.
In fact, in just the last few years, juries in California have
awarded the following damages to medical malpractice victims: An $84
million award to a 5-year-old boy, a $59 million award to a 3-year-old
girl, a $50 million award to a 10-year-old boy, a $12 million award to
a 30-year-old homemaker, and a $27 million award to a 25-year-old
woman. Other examples include damages of
$7, $22, $25, $30, and $49 million, all in just the last few years.
Awards of these same sizes would be available under the HEALTH Act.
Researchers at the Harvard School of Public Health stated
[[Page H6978]]
that ``we found no evidence that women or the elderly were disparately
impacted by the cap'' on noneconomic damages in California under MICRA.
The HEALTH Act will work. According to the Congressional Budget
Office, ``Under the HEALTH Act, premiums from medical malpractice
insurance ultimately would be an average of 25 percent to 30 percent
below what they would be under current law.''
The American people support the HEALTH Act. The Gallup poll found
that 72 percent of those surveyed favor a limit on the amount patients
can be awarded for noneconomic damages. The HEALTH Act also respects
the judgments of State legislatures because it does not preempt any
State law that limits damages, be they higher or lower than the limits
provided for in the HEALTH Act.
Finally, this legislation is supported by some 200 organizations,
including the American Medical Association, the American Academy of
Pediatrics, the American College of Emergency Physicians, the American
College of Nurse Practitioners, the American College of Obstetricians
and Gynecologists, and the Council of Women's and Infant's Specialty
Hospitals.
Mr. Speaker, for the sake of those who need health care, for the sake
of health care providers who simply want to practice their professions,
please join me and these selfless organizations in supporting the
HEALTH Act.
Mr. Speaker, I reserve the balance of my time.
The SPEAKER pro tempore (Mr. Putnam). The Chair understands that the
gentleman from Michigan (Mr. Conyers) will control 40 minutes as the
designee of the minority leader, and the gentlewoman from Colorado (Ms.
DeGette) will control 20 minutes as the designee of the minority
leader.
Mr. CONYERS. Yes, sir. That is correct.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks, and include extraneous material.)
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Now, the reason that many people might support this bill is that they
do not know that inside the bill, if they were asked, are you for
legislation that makes it harder to sue drug companies and HMOs, I do
not think you would get the same polling results.
Mr. Speaker, I will insert into the Record after these remarks
letters and reports in opposition to H.R. 5 from the American Bar
Association, Public Citizen, and the American Federation of State,
County and Municipal Employees and the National Conference of State
Legislators.
Mr. Speaker, make no mistake about it. This is a special interest
bill before us today. The bill would supersede the law in all States in
the Union to cap noneconomic damages, to cap and limit punitive
damages, to cap attorneys' fees for poor victims, to shorten the
statute of limitations, to eliminate joint and several liability, and
to eliminate collateral source.
That is a pretty large menu. But, more amazing, this bill comes
before us today without the benefit of a committee hearing, or a
committee markup, and under a totally closed rule. How do you like
that?
Rather than helping doctors and victims, this measure pads the
pockets of insurance companies, health maintenance organizations, and
manufacturers and distributors of defective medical products and
pharmaceuticals, and it does so at the expense of innocent victims,
particularly women, children, the elderly and the poor. We have a bill
today for you.
So let us cut the charade and get to the heart of the problem, and
the insurance industry is the greatest place to start. This month we
found out that the insurance industry has increased premiums by more
than 100 percent over the last 5 years, while the claims they have paid
out were essentially the same, were flat.
This may have something to do with the fact that the insurance
industry, which is exempt from antitrust laws, is not immune from
collusion, price fixing, and other anticompetitive problems that they
would be subject to if they did not have an antitrust exemption.
It is also clear that a legislative solution, largely focused on
limiting victim rights, available under our State tort system will do
little other than increase the incidence of medical malpractice, which
is already the third leading cause of preventable death in our Nation.
So under the proposal, we here in Congress would be saying to the
American people, we do not care if you lose your ability to bear
children. We do not care if are you forced to bear excruciating pain
for the reminder of your life. We do not care if you are permanently
disfigured or crippled. We are going to limit your recovery no matter
what.
The proposed new statute of limitations in this bill takes absolutely
no account of the fact that many injuries caused by malpractice or
faulty drugs take years, sometimes decades, to manifest themselves.
Under this proposal a patient who is negligently infected with HIV
blood and develops AIDS 6 years later would be forever barred from
filing a liability claim.
The so-called periodic plan provisions are really nothing less than a
Federal installment plan for the health maintenance organizations. The
measure we have here right now would allow insurance companies
teetering on the verge of bankruptcy to delay and then completely avoid
future financial obligations. And they would have no obligation to pay
interest on the amounts that they owe their victims.
And guess who else gets a sweetheart deal under the legislation? The
drug companies. The producers of such killer devices like the Dalkon
Shield, the Cooper-7 IUD, high-absorbency tampons linked to toxic shock
syndrome, and silicone gel implants all would have completely avoided
the billions of dollars in damages that they have had to pay had this
bill been law.
Do you really want to do this today, my colleagues? It would help
insulate Vioxx claims for liability, adding insult to injury to
hundreds of thousands of individuals and families who suffered heart
attacks or lost their life as a result of this dangerous drug.
I conclude. Nearly 100,000 people die in this country every year from
medical malpractice. And at a time when 5 percent of our health care
professionals cause 54 percent of all medical malpractice injuries,
just a few, a few doctors causing all of this problem, the last thing
we need to do is exacerbate this problem while ignoring the true causes
of medical malpractice, the crisis that exists in this country today.
My colleagues, I urge you to please do not accept this antipatient,
antivictim legislation.
Mr. Speaker, the material I referred to previously is as follows:
National Conference of
State Legislatures,
Denver, CO, July 26, 2005.
Re H.R. 5, the Help Efficient, Accessible, Low-Cost, Timely
Healthcare (HEALTH) Act of 2005.
Hon. Dennis Hastert,
Speaker of the House, House of Representatives, Washington,
DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives, Washington, DC.
Dear Speaker Hastert and Representative Pelosi: On behalf
of the National Conference of State Legislatures, I am
writing to express strong, bipartisan opposition to the
passage of federal medical malpractice legislation, H.R. 5,
the ``Help Efficient, Accessible, Low-Cost, Timely Healthcare
(HEALTH) Act of 2005,'' which is scheduled for a vote in the
House of Representatives on Wednesday, July 27.
Medical malpractice, product liability and other areas of
tort reform are areas of law that have been traditionally and
successfully regulated by the states. Since the country's
inception, states have addressed the myriad of substantive
and regulatory issues regarding licensure, insurance, court
procedures, victim compensation, civil liability, medical
records and related matters. In the past two decades, all
states have explored various aspects of medical malpractice
and products liability and chosen various means for remedying
identified problems. To date, twenty-nine states have enacted
medical malpractice legislation in their 2005 legislative
sessions.
NCSL's Medical Malpractice policy explicitly and firmly
states that ``American federalism contemplates diversity
among the states in establishing rules and respects the
ability of the states to act in their own best interests in
matters pertaining to civil liability due to negligence.''
That diversity has worked well even under the most trying and
challenging circumstances. The adoption of a one-size-fits-
all approach to medical malpractice envisioned in H.R. 5 and
other related measures would undermine that diversity and
disregard factors unique to each particular state.
Federal medical malpractice legislation inappropriately
seeks to preempt various areas
[[Page H6979]]
of state law. All 50 states have statutes of limitations for
medical malpractice suits. All 50 states have rules of civil
procedure governing the admissibility of evidence and the use
of expert witnesses. More than half of the states have caps
on noneconomic damages and limitations on attorney's fees in
medical malpractice cases.
This issue was scrutinized again at NCSL's last Fall Forum.
Our review included assessing whether circumstances had
developed or were so unique that only federal action could
provide an adequate and workable remedy. We again examined
recent state actions, policy options and experiences. We
discussed at length how various proposed or anticipated
pieces of federal legislation fared against NCSL's core
federalism questions. Those questions included (1) whether
preemption is needed to remediate serious conflicts imposing
severe burdens on national economic activity; (2) whether
preemption is needed to achieve a national objective; and (3)
whether the states are unable to correct the problem. The
resounding bipartisan conclusion was that federal legislation
is unnecessary.
NCSL's opposition extends to any bill or amendment that
directly or indirectly preempts any state law governing the
awarding of damages by mandatory, uniform amounts or the
awarding of attorney's fees. Our opposition also extends to
any provision affecting the drafting of pleadings, the
introduction of evidence and statutes of limitations.
Furthermore, NCSL opposes any federal legislation that would
undermine the capacity of aggrieved parties to seek full and
fair redress in state courts for physical harm done to them
due to the negligence of others.
Thank you for your consideration of our concerns. For
additional information, please contact Susan Parnas Frederick
or Trina Caudle in NCSL's Washington, D.C. office.
Respectfully,
Senator Michael Balboni,
New York Senate, Chair,
NCSL Law & Criminal Justice Committee.
____
Public Citizen
Washington, DC, July 25, 2005.
Re please oppose H.R. 5--``HEALTH Act of 2005.''
Dear Representative: H.R. 5, a bill dealing with civil
liability for medical malpractice, would shield doctors,
HMOs, hospitals, nursing homes, drug makers, and medical
device manufacturers from legal and financial responsibility
for harms inflicted by their misconduct. At the same time, it
would punish victims of medical negligence by making it more
difficult for them to recover fair compensation for their
injuries. We strongly oppose this bill and urge you to vote
against it.
We are enclosing a detailed fact sheet evaluating the major
provisions of this misguided legislation, whose more
egregious features include:
An arbitrary, non-adjustable $250,000 cap on non-economic
damages--the lowest limit imposed by any state that has
adopted caps since they first appeared 30 years ago--
regardless of the severity of injury, number of malfeasors,
or number of defendants involved.
Insulation from liability for nursing homes, HMOs, drug
companies, and medical device manufacturers, and protection
from punitive damages for products that are FDA approved or
generally recognized as safe and effective.
Federalized standards for medical malpractice liability
that preempt existing state laws in an arena that is
traditionally the purview of state legislatures and courts.
The fact sheet is accompanied by our analysis of medical
malpractice judgments over the ``crisis'' period 2000 to
2004, showing that total payments to plaintiffs for
malpractice judgments have dropped 37.5 percent, when
adjusted for inflation, over the past five years. This
demonstrates--contrary to what proponents of denying legal
rights to victims contend--that lawsuits are not the engine
driving skyrocketing malpractice insurance premiums.
For the reasons stated above, and more fully described in
the enclosures, we urge you to protect consumers by voting no
on H.R. 5.
Sincerely,
Joan Claybrook,
President.
Frank Clemente,
Director, Congress Watch.
____
American Bar Association,
Washington, DC, July 21, 2005.
Dear Representative: We understand that in the near future
the House is expected to consider H.R. 534, legislation to
preempt substantial portions of the state medical liability
laws. On behalf of the American Bar Association, I urge you
to vote against passage of H.R. 534. The ABA opposes H.R. 534
because it would interfere with the traditional state
regulation of medical liability laws and restrict the rights
of injured patients to be compensated for their injuries.
For over 200 years, the authority to promulgate medical
liability laws has rested with the states. This system, which
allows each state autonomy to regulate the resolution of
medical liability actions within its borders, is a hallmark
of our American justice system. Because of the role they have
played, the states are the repositories of experience and
expertise in these matters. If enacted, H.R. 534 would pre-
empt the rights of the states to continue to administer the
medical liability laws.
Currently, states have the opportunity to enact and amend
their tort laws, and the system functions well. Congress
should not substitute its judgment for the systems that have
thoughtfully evolved in each state over time. To do so would
limit the ability of a patient who has been injured by
medical malpractice to receive the compensation he or she
deserves.
The ABA is especially concerned about the provisions in
H.R. 534 that would place a cap on pain and suffering awards
in states that have no such cap. The ABA opposes caps on pain
and suffering awards which ultimately harms those who have
been most severely injured. Instead, the courts should make
greater use of their powers to set aside verdicts involving
pain and suffering awards that are disproportionate to
community expectations.
Medical professional liability expenditures account for
less than two percent of national health care expenditures.
Provisions contained in H.R. 534 to cap non-economic damages
would not eliminate the less than two percent of health care
costs attributable to medical professional liability since
very few people are the subject of such caps. Any savings in
the cost of health care would be a small fraction of the less
than two percent figure.
There is no question that malpractice premiums have risen.
The question is why. There is no evidence that the legal
system has caused the spike in rates. And there is no
evidence that caps will be effective in reversing the trend.
In fact, not even data provided by the AMA in June 2004
supports the idea that placing caps on damages can avert a
medical malpractice crisis in a particular state, or that
states that fail to enact caps are certain to have a crisis.
At that time, eight states that were listed by the AMA as
``in crisis'' (Florida, Massachusetts, Mississippi, Missouri,
Nevada, Ohio, Texas, and West Virginia) had already enacted
caps on non-economic damage awards. Fourteen other states
that had such caps were, according to the AMA, ``showing
problem signs,'' and just six of the states that had enacted
caps were considered by the AMA to not be ``in crisis'' or
``showing problem signs.'' This follows a June 2003 report by
Weiss Ratings, Inc., which found that caps on non-economic
damages have failed to prevent sharp increases in medical
malpractice insurance premiums, even though insurers
enjoyed a slowdown in their payouts.
A July 2003 General Accounting Office study of the causes
of malpractice insurance increases found that, while
malpractice awards have contributed to increased premiums,
``a lack of comprehensive data at the national and state
levels on insurers' medical malpractice claims and the
associated losses prevented us from fully analyzing the
composition and causes of those losses.'' In fact, relevant
studies have since been released that analyze and challenge
the alleged link between the tort liability system and
malpractice premiums. Two notable studies suggest that the
issue is much more complex.
One such study, in Texas, found no evidence to support a
link between rising malpractice premiums in Texas and the
frequency of claims and size of payouts, despite Texas voters
having passed a constitutional amendment in 2003 that sharply
restricted non-economic damages in medical malpractice
lawsuits. The Texas study was developed by researchers at
three major universities. An examination of the comprehensive
database of closed malpractice claims maintained by the Texas
Department of Insurance found that the number of paid
malpractice claims (adjusted for population growth) was
roughly constant between 1991 and 2002, the frequency of such
claims actually declined, the frequency of individual jury
awards in malpractice cases declined, and the percentage of
claimant verdicts showed no upward trend.
Similarly, a study by the Kaiser Family Foundation showed
that capping damages in medical malpractice cases does not
reduce doctors' exposure to malpractice claims. The Kaiser
Family Foundation report on medical malpractice was released
on May 27, 2005. The report provides trend data for
malpractice claims. It shows that the total dollars in
physician medical malpractice claim payments remained
relatively constant during the period from 1991 to 2003
(13,687 in 1991, compared with 15,287 in 2003). The average
number of malpractice claims per physician declined
relatively steadily over the period.
The American Bar Association analyzed the Kaiser Family
Foundation report's new state malpractice data (available at
http://www.statehealthfacts.org/r/malpractice.cfm) on the
number of paid claims per 1,000 physicians in each state in
2003, the latest year for which data is available. The chart
attached as Appendix ``A'' lists the number of claims per
1,000 active, non-federal physicians and shows whether the
state had caps on noneconomic or total damage caps in 2003.
This data shows the number of paid claims per 1,000 active
non-federal physicians is not related to whether a state has
caps on damages or not. For example, the average claims for
1,000 physicians ranged from a high of 30.5 in Indiana, which
had damage caps in 2003, to a low of 5 in Alabama, which did
not have caps on non-economic or total damage caps in 2003.
It is obvious that those affected by caps on damages are
the patients who have been most severely injured by the
negligence of others. No one has stated that their pain and
[[Page H6980]]
suffering injuries are not real or severe. These patients
should not be told that, due to an arbitrary limit, they will
be deprived of the compensation they need to carry on. Yet
H.R. 534, if enacted, would result in the most seriously
injured persons who are most in need of recompense receiving
less than adequate compensation.
On July 14, 2005, the Wisconsin Supreme Court, in a quite
lengthy and well-thought-out opinion, found caps in
malpractice cases to be unconstitutional. Ferdon v. Wisconsin
Patients Compensation Fund, et al., Case No. 2003AP988. As
part of its analysis of the issues, the Court noted that the
cap put in place ($350,000) was apparently based on the
assumption that the cap would help to limit the increasing
cost and possible diminishing availability of health care,
although the immediate objective was apparently to ensure the
availability of sufficient liability insurance at a
reasonable cost. Slip op. at 45. The Court found no rational
relationship between ``the classification of victims in the
$350,000 cap on non-economic damages'' and the equally
desirous objective of compensating victims fairly, both those
who suffer non-economic damages above and below the cap. Slip
op. at p. 50. The Court found that the cap is ``unreasonable
and unnecessary because it is not rationally related to the
legislative objective of lowering medical malpractice
insurance premiums'' and it creates an undue hardship on
those whose non-economic damages exceed the cap and is thus
arbitrary. Slip op. at pp. 49, 53. The Court came to its
conclusion after reviewing an analysis of studies done within
the state by the Wisconsin Commissioner of Insurance and of
studies outside the state. Slip op. at pp. 59-66.
We urge you to vote no on H.R. 534.
Sincerely,
Miles J. Zaremski,
Chair, ABA Standing Committee
on Medical Professional Liability.
Medical Malpractice--Is MAG Mutual Gouging Its Doctors?
Georgia's largest medical malpractice writer took in nearly
triple what it paid out.
This gain is in addition to the $17,312,654 gain made by
investing its doctors' money.
Insurance reform--not tort reform--is needed to reduce
medical malpractice premiums.
Source: taken directly from the company's annual statement
for the year ending December 31, 2004. All data is from the
Five Year Historical Data Page: information on Net Paid
Losses is line 61, Net Premiums Written is line 12, and Net
Investment Gain is line 14. Dollar figure for investment gain
represents total investment multiplied by percentage of
premiums written of total for the state. Statement available
at: http:naic.org/cis. MAG Mutual Insurance Company is the
largest insurer in Georgia with 42.3% of the market (AM
Best).
Mr. Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield 6\1/2\ minutes to the
gentleman from Georgia (Mr. Gingrey) the primary author of the bill
itself.
Mr. GINGREY. Mr. Speaker, I thank the gentleman from Texas (Mr.
Smith) for yielding me the time.
With all due respect to the distinguished ranking member, let me say
that in response to his comments, this is a special interest bill. That
is right. It is a special interest bill. It is a special interest bill
for the American consumer of health care, for our patients. That is
where the special interest is; not, Mr. Speaker, the insurance
industry, not drug companies or manufacturers of medical devices.
The insurance industry, of course, offers a broad range of products.
It could be health insurance. It could be automobile insurance. It
could be homeowners insurance. It could be an umbrella policy for
general liability. And, yes, of course there is a product line called
medical liability insurance.
But let me tell you what is happening to the insurance industry in
regard to that piece of their business. In my home State of Georgia, 3
years ago we had 20 companies that offered that line of business. Today
we have one. We have gone from 20 to 1, and that is a mutual company.
{time} 1345
If these insurance companies were making out like bandits, as the
other side of the aisle and the opposition to this commonsense bill are
suggesting, then they would not be quitting the business in droves.
They would be continuing to stay in the business and raising those
premiums and making these tremendous profits.
I do not know, Mr. Speaker, what is happening with the industry of
insurance in regard to other product lines. The gentleman may be right
on that. But in regard to this line of business, I can tell you they
are losing money even when they have good returns on their investments,
as did Mag Mutual in Georgia several years ago. In fact, the return on
their very conservative investments, they are very restricted by the
insurance commissioner in that very conservative portfolio of
investments, returned them $7 million; but they still are losing money
because of these outrageous claims and the expense of defending so many
frivolous lawsuits.
In regard, Mr. Speaker, to the drug companies and the manufacturers
of medical devices that the distinguished ranking member mentioned,
this bill would only relieve them of punitive damages, that is all,
punitive damages, if it is shown that they did deliberately market a
drug or a device that they knew was harmful to a patient and they
deliberately withheld that information from the FDA. It does not
relieve them of liability for being named in a lawsuit. It is only the
punitive damages.
If they are guilty of something like that, of withholding information
deliberately, we went through this with the tobacco industry in regard
to lung cancer, the punitive damages can be in the hundreds of millions
and, maybe if it is a big Fortune 500 company, billions of dollars.
So this is a distraction from the real problem. And the real problem,
Mr. Speaker, is that we have an unlevel playing field. That is all it
is. This bill, H.R. 5, the HEALTH Act of 2005, is not going to take
away anybody's right to sue if they have been injured and to seek
economic damages and payments for medical care for the rest of their
lives.
The gentleman from Texas explained to us that many of these cases in
California, a State that since 1979 has had a cap on noneconomic so-
called ``pain and suffering'' at $250,000, these cases that he just
talked about, $10 million, $20 million, $30 million worth of economic
awards, people are not being denied access to that care, Mr. Speaker.
This is only to balance the playing field so that we do not have this
situation in this country where we are supposed to have the greatest
health care in the world, and yet our specialists are dropping out.
They are not delivering babies. They are not getting involved in high-
risk pregnancies. They are not manning emergency rooms. They are not
doing newer surgery.
Because of all the defensive practice of medicine, every specialist
practices in two areas: his or her specialty and also the specialty of
defensive medicine, and it is driving up the cost of health care and
people cannot afford to get health insurance. That is all we are
talking about here, Mr. Speaker, of leveling the playing field. It is
not taking away anybody's right to sue. It is not denigrating or
bashing the legal profession.
Those attorneys who specialize in personal injury, most of them do a
great job representing their clients well. My brother is an attorney.
My daughter is an attorney. We are not here to bash the legal
profession. But we just want to ask them to give us an opportunity to
level this playing field to make it fair for everyone. And so this idea
that the other side suggests that we are taking away anybody's rights
is absolutely not true, Mr. Speaker.
Let me say some of the things that this bill does do besides limiting
noneconomic to $250,000. What it does, Mr. Speaker, is something called
``collateral source disclosure.'' Current law did not allow a jury to
know that a plaintiff in a malpractice case has health insurance or has
a disability policy. So when they are calculating all of these economic
losses and loss of wages, it is not known by the jury that maybe that
disability policy gives them 80 percent of their earnings or their
income for their whole life or that they have health insurance.
The other thing, and I will conclude on this, Mr. Speaker, the other
things this bill does is it stops this issue of joint and several
liability where, when multiple defendants are named, the person, the
doctor who has the deepest pockets, who may have had very little to do,
if anything to do, maybe just walked down the corridor on a Saturday
and said hello to the patient, but they happened to have the most
insurance and the deepest pockets so they pay all of the claims.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentlewoman
from New York (Mrs. Kelly), a subcommittee Chair of the Committee on
Financial Services.
[[Page H6981]]
Mrs. KELLY. Mr. Speaker, I rise today in support of H.R. 5. Listen to
why. For many years, the world has come to New York for medical care.
But between 1998 and 2002, 70 percent of New York's neurosurgeons, 60
percent of the OB-GYNs in New York, 60 percent of New York's orthopedic
surgeons, and 60 percent of the general surgeons in New York were sued.
Mr. Speaker, it is impossible that all of these physicians were bad
doctors. We can all agree that there are some physicians that may be
better than others, but it would be difficult to come to the consensus
that more than half of the physicians in several vital practice areas
have performed this poorly.
This is a problem. In New York, the average jury award increased from
$1.7 million in 1994 to $6 million in 1999, which was an increase of
350 percent. New York physicians are now paying 34 to 50 percent more
in 2005 for the same insurance coverage they had in 2002. This is in
part due to an across-the-board average rate increase of 7 percent for
the 2004-2005 policy year. In 2001, six of the top eight medical
malpractice awards in the United States came from New York courts. In
2002, 7 of the top 10 jury verdicts in medical negligence cases were
from New York courts. And in 2003, it was four of the top six.
The cost is not just to the doctors. It is a cost we all ultimately
share. There are steps this Congress can take in solving the problem.
The HEALTH Act is a step that is both reasonable and fair. It is
reasonable because it calls for a cap on unquantifiable damages. State
laws that otherwise cap damages at specific amounts, even at higher
amounts than those provided in the HEALTH Act, would remain in effect.
The act is fair when it allows for the full recovery of economic
damages. In other words, when damages can be quantified, they are
unlimited in the HEALTH Act.
The HEALTH Act is going to help solve the national crisis we are
seeing in medical malpractice. Without this legislation, doctors will
not just leave the area where they practice; they will leave the
profession. I urge support of the HEALTH Act.
Today, I rise in support of H.R. 5--The HEALTH Act of 2005.
Between 1998 and 2002, the largest insurer of physicians in New York
state had: 70 percent of its neurosurgeons sued, 60 percent of OB-GYNs
were sued, 60 percent of orthopedic surgeons were sued, and 60 percent
of general surgeons were sued.
Mr. Speaker, it is impossible that all of these physicians are bad
doctors.
We can all agree that there are some physicians who may be better
than others--but it would be difficult to come to the consensus that
more than 50 percent of physicians in several vital practice areas have
performed this poorly.
There is a problem.
Just in New York, the average jury award increased from $1.7 million
in 1994 to $6 million in 1999--an increase of 350 percent.
New York physicians are now paying 34-50 percent more in 2005 for the
same insurance coverage they had in 2002. This is in part due to an
across the board average increase of 7 percent rate increase for the
2004-05 policy year.
In 2001, 6 of the top 8 medical malpractice awards came from New York
courts.
In 2002, 7 of the top 10 jury verdicts in medical negligence cases
were from New York courts. And in 2003, it was 4 of the top 6.
But, there are also steps that this Congress can take towards solving
this problem.
We have learned today that the HEALTH Act is a step that is both
reasonable and fair.
It's reasonable because it calls for a cap only on unquantifiable
damages. State laws that otherwise cap damages at specific amounts,
even at higher amounts than those provided in the HEALTH Act, would
remain in effect under the HEALTH Act.
The Act is fair where it allows for full recovery of economic
damages. In other words, when damages can be quantified, they are
unlimited under the HEALTH Act.
The HEALTH Act will help solve the national crisis that we are seeing
in medical malpractice liability insurance.
Without this legislation doctors will not just leave the area where
they practice, they will leave the profession. Patients, who are the
real victims in this crisis, will be left to suffer and die because
there is no one to provide the care.
As a member of the Medical Malpractice Crisis Task Force, I ask my
colleagues to recognize that there is a problem, and this legislation
is one great step in the direction towards solving that problem.
Please support the HEALTH Act of 2005.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would just let the gentlewoman from New York (Mrs.
Kelly) and the gentleman from Georgia (Mr. Gingrey) know about the
General Accounting Office report that found there is no evidence that
caps on damages have reduced losses or helped consumers. They found,
instead, that the contention that premiums are rising because there is
a surge in jury awards is a myth and that while premiums have increased
claims payments of insurance companies have remained essentially flat.
Mr. Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms.
Jackson-Lee), a member of the Committee on the Judiciary.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished
ranking member, and I thank him for his continued leadership on this
issue.
It looks as if this is deja vu. We have been at this table for a
number of years, and I am delighted that the gentleman from Georgia
(Mr. Gingrey) cleared it up. When you have a daughter that is a lawyer,
I know you have a great affection for lawyers. And I appreciate the
fact that he recognizes that as physicians care for the sick, lawyers
have to keep the doors of justice open. For that reason, if anyone gets
up on the floor of the House and cites the number of lawsuits, 60
percent of the doctors being sued, that has nothing to do with those
cases that prevailed.
Most Americans understand the distinction between frivolous lawsuits
and so does the court system. But, really, what this bill is premised
on is absolutely false, and Americans should know that because I have
heard from so many with so many tragic incidents, amputated legs,
individuals at hospitals who have died not because of what they went
into the hospital for but because they caught an infection in the
hospital.
But as it relates to insurance and low rates, let me cite a study
that is the prevailing trend in America. A new study by the former
insurance commissioner of Missouri, Jay Angoff, shows that insurance
companies are gouging doctors. The study shows that insurance premiums
are skyrocketing, while payouts have remained flat or in some cases
even decreased. There is no evidence that we are making a dent with
this medical malpractice oppressive legislation--oppressive
legislation, in insurance rates.
In particular, it is a shame that when you have a tragedy in your
family, someone who lost their life because of negligence, and there
are three defendants, the general trend is that you go against the
defendant with the deepest pockets. That defendant who is well-situated
will go against the others who contributed to that terrible tragedy.
Now, this bill locks the door, closes out the bus driver, the
teacher, the nurse's aid, the oil refinery worker, absolutely closes
them out. It also denies children who are innocent, under 18, enhanced
economic damages. That was my amendment, to take away that cap of
250,000, to take away that cap of 250,000 on noneconomic damages
because we do not know long range with all these tables about what
someone will be needing the rest of their life after they have been
maimed, after they have been disabled, or after they have died and what
their family will need.
This is a tragic day because first of all this bill came to the floor
with no committee work, no rules work of sorts, all amendments died;
and we have failed. Herman Cole of Connecticut we have failed, whose
wife slipped into a coma when in a procedure for a tubal ligation. Her
blood pressure dropped dangerously and damagingly low and the doctor
and anesthesiologist ignored the warning signs. What is he supposed to
do? What is he supposed to do about his wife, Sadie, who is now in a
vegetative state?
This is a bad bill. I hope my colleagues will have enough courage to
vote for those who have been injured and vote against special interest.
Mr. Speaker, I rise in opposition to H.R. 5, the ``Medical
Malpractice Bill.'' Not only is the overall bill bad, but the process
in which the majority followed was flawed as well. This bill came
straight to the floor and bypassed both committees of jurisdiction.
This begs the question, ``what are the proponents of the bill so
[[Page H6982]]
afraid of that they need to rush to the floor. Both the House Judiciary
and Energy and Commerce Committees have been bypassed and this should
not have been done on such an important piece of legislation. Given the
new information that is available about the insurance industry gouging
doctors, shouldn't the committees at least have had the opportunity to
review the new information?
Turning to the bill itself, it should be noted that this bill applies
across the board to all cases, not just frivolous cases. It applies no
matter how much merit a case has, or the extent of the misconduct of
the hospital, doctor or drug company. The bill applies regardless of
the severity of the injury. Those most hurt by the bill are the most
catastrophically injured. In addition, it undermines our constitutional
right to trial by jury. The bill limits the power and authority of
jurors to decide cases based on the facts presented to them. Washington
politicians should not be making these decisions--juries should.
This legislation also reduces the accountability of hospitals,
nursing homes, HMOs and drug companies. This will hurt patient safety.
Patient safety must come first. We should be cracking down on the small
number of doctors responsible for most of the malpractice. This will
reduce both incidents of malpractice and lawsuits. Doctors and
hospitals must be required to tell their patients or the patients'
families when they know they have made a medical error, rather than
allowing them to keep their mistakes secret.
This bill completely ignores the insurance industry's major role in
the high price of medical malpractice insurance premiums. We must
protect the legal system and make it accessible for everyone seeking
justice, accountability and adequate compensation for devastating
injuries or death.
In discussing the flaws of this bill, I would be remiss if I did not
take a moment to mention some of the families who have survived medical
malpractice.
Kim and Ryan Bliss of Florida, whose 8\1/2\-month-old daughter died
when the doctor inserted an adult IV in her jugular and caused an air
bubble to go directly into her bloodstream.
Herman Cole of Connecticut, whose wife slipped into a coma when,
during a procedure for tubal ligation, her blood pressure dropped
dangerously and damagingly low and the doctor and anesthesiologist
ignored the warning signs. Herman's wife Sadie has been in a vegetative
state ever since.
Diane Meyer of Nevada, who was diagnosed with kidney stones and was
sent home to pass them, despite the fact that one was too large and was
poisoning her body from within. Doctors later discovered this but
failed to call Diane, who then slipped into a coma and later had to
have both legs amputated below the knee.
Mark Unger of Oregon, whose mother was diagnosed with Burkitt's
lymphoma in early 2001 and was injected with 1000 times more
methotrexate than the appropriate dosage by a doctor who did not follow
protocol. Mark's mother passed away in April 2001.
John McCormack of Massachusetts, whose 13-month-old daughter died
while awaiting surgery to repair a malfunctioning shunt in her skull,
while the attending physician slept through repeated pages because his
beeper was set to vibrate and didn't wake him, leaving two neurosurgery
residents in charge of her care.
Deborah Gillham of Maryland, who suffered injury when, during a
routine laparoscopic procedure to look for a cyst on her left ovary,
her physician punctured her colon.
Before closing, let me take a moment to speak on two amendments I
would have offered had the rule not been so restrictive. My first
amendment would have eliminated one of the many egregious provisions in
the bill. In essence, it would eliminate the one-size-fits-all limit on
awards for non-economic loss (i.e. pain and suffering damages) of
$250,000. Typically, such damages exceed $250,000 only in cases
involving catastrophic injuries such as deafness, blindness, loss of
limb or organ, paraplegia, severe brain damage or loss of reproductive
capacity. Limiting patients' rights to sue for medical injuries would
have virtually no impact on the affordability of malpractice coverage.
States with little or no tort law restrictions experience the same
insurance rates as states that have enacted tort restrictions.
My second amendment also focused on the $250,000 cap for non-economic
loss (i.e. pain and suffering damages). This amendment would have
carved out an exception for plaintiffs or a person(s) representing a
minor. In summary, the $250,000 cap for non-economic loss (i.e. and
suffering damages) would not apply with respect to an injury to an
individual who is under 18 years of age. Minors are more vulnerable in
regards to injuries they suffer and the consequences of those injuries.
Furthermore, the impacts of an injury suffered by a minor due to
malpractice will be felt for a much longer time period than for an
adult. This is especially true of children who suffer injuries at birth
due to malpractice. These children will more likely have to suffer the
consequences of these injuries for the rest of their lives.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from Wisconsin (Mr. Green), a member of Committee on the Judiciary and
an expert on this subject.
Mr. GREEN of Wisconsin. Mr. Speaker, 10 years ago, like so many
States, Wisconsin was facing a medical liability crisis, not just
because medical liability premiums were soaring, not just because
insurance carriers were discontinuing the sale of medical liability
insurance, but because too many physicians felt forced to leave their
practice, leave their specialty, or leave the State for a more
affordable State.
But 10 years ago in Wisconsin, we figured out a reasonable answer. I
led the fight to create a new medical liability system where injured
parties receive every single dollar of economic damages to which they
are entitled. But where there is a modest cap on noneconomic damages,
things like pain and suffering, loss of society, loss of companionship,
you know what? It worked.
We hear a lot about studies here. We know as a fact in Wisconsin it
worked. In a short period of time, Wisconsin became one of only six
States not to have a medical liability crisis. As a result, as the
State medical society reported, physicians, especially those in high-
risk specialties, actually moved into our State from States like Ohio
and Pennsylvania and Florida and Illinois. It worked.
But, sadly, Mr. Speaker, my State recently lost its way. Even though
by any reasonable measure our reforms work, the Wisconsin courts struck
them down. We can only hope that Wisconsin enacts a new medical
liability reform act. But until then, we should pass the HEALTH Act. It
will not only help Wisconsin doctors and patients but those in every
State facing a medical liability crisis.
This bill is State-friendly. It does not preempt State reforms. If a
State like Wisconsin has a cap on noneconomic damages, whether that cap
is higher or lower, that cap will take effect. More important, it is
doctor-friendly. It is patient-friendly. It will help us get a handle
on at least a small portion of our health care costs. It will encourage
doctors to continue to practice in vital specialties, and it will
attack defensive medicine. I urge support for the HEALTH Act.
{time} 1400
Mr. CONYERS. Mr. Speaker, I am pleased to yield 3\1/2\ minutes to the
gentleman from Virginia (Mr. Scott), a distinguished member of the
Committee on Judiciary.
Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman for
yielding me this time.
One of the problems we are going to have during this debate is the
fact we are here under a closed rule. We will not have the ability to
highlight or fix the shortcomings of the bill, so we will go back and
forth on sound bites. We have already heard that this has been
described as a proconsumer bill, notwithstanding the fact that I am not
aware of any recognized consumer group that is supporting it.
Mr. Speaker, we say we have lost doctors because of the malpractice
crisis, but we did not say anything about the reimbursement rates for
some specialties, who are not getting paid as much, nor is there a
suggestion that tort reform has actually produced more doctors. Because
we have the same list of ineffectual initiatives that we have had in
other tort reform bills, reducing victims' rights without doing
anything with malpractice rates, we will try to discuss the provisions
of the bill.
First, the rule rejected the alternative offered by the gentleman
from Michigan (Mr. Conyers) and the gentleman from Michigan (Mr.
Dingell) that would have actually reduced malpractice costs and helped
underserved areas without going overboard in helping and relieving from
liability the HMOs and pharmaceutical companies, which means that the
doctors will have to pay more of the responsibility for malpractice. We
cannot consider that.
But let us come to the specifics. This legislation preempts State
law. The National Conference of State Legislators has already
considered this bill, and they have rejected it. Their opinion, the
National Conference of State
[[Page H6983]]
Legislators, have suggested this bill will make matters worse.
We have caps on damages, not on damages for wages and things like
that, but for elderly, for children, for those who are without lost
wages, they will be hurt. Incredibly, the cap on damages has not been
shown to do anything about malpractice premiums. Those States with caps
are paying the same malpractice premiums as those without caps.
We have heard about this fair share provision that says everybody
just pays their fair share or more. Mr. Speaker, what we are talking
about here is a group with insurance, and which insurance company will
pay. Some States have dealt with this and said if a doctor is at least
60 percent responsible, he can be held fully responsible, but for
others, maybe you can have a fair share. This says everybody involved.
In other words, you have to go after each and every physician, with a
separate case against each and every one for every 1 or 2 percent
responsibility they have. We have had the problem of having to sue so
many doctors. Well, this requires you to sue each and every doctor.
We have heard about the collateral source rule; that if you have
insurance, and listen up small businesses, if you are providing health
care for your employees, and you have an employee who gets into a
malpractice-induced coma, and somebody has to pay it, and your employee
has gotten a recovery from the malpractice insurance, if the small
business is paying the responsibility, the physician, the guilty party,
will get credit for all of your health insurance, and you are going to
have to continue to pay under that health insurance.
We limit attorneys' fees in this legislation, which will do nothing
to reduce malpractice premiums. We have different statutes of
limitations, which will confuse people, and lawyers will miss the
filing deadlines because of all this confusion.
We need insurance reform which will reduce premiums, not just attack
victims. We need worthwhile legislation that will reduce the premiums.
This will not do it. We need to defeat the bill.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 30 seconds.
Mr. Speaker, opponents of reform claim that the current crisis is
driven by a small number of so-called bad doctors. But as Yale Medicine
Professor Dr. Robert Auerbach has explained, ``The American Trial
Lawyers Association has perpetrated myths on the American public,
including the myth that a very small proportion of all physicians are
responsible for the majority of claims. This is a sort of statistical
magic, because, unfortunately, a small proportion of the physicians in
high-risk specialties, such as obstetrics and gynecology and
neurosurgery, are responsible for a disproportionate number of the
claims.''
Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr.
Burton), former chairman of the Committee on Government Reform.
Mr. BURTON of Indiana. Mr. Speaker, I thank the gentleman for
yielding me this time.
First of all, I am for medical malpractice reform. I think it is
extremely important we address this issue. However, I have a real
problem with this bill. In section 7, item (c), under punitive damages,
it in effect will protect the pharmaceutical industry against class
action lawsuits by parents who have had their children damaged by
mercury in vaccines that causes neurological problems, such as autism.
We had hearings on this for about 6 years, and we had scientists from
all over the world, and the mercury in vaccines is a contributing
factor to autism and other neurological disorders in children. It is in
adult vaccines as well.
Now, I will not go into specifics of the language in here, but
according to attorneys I have talked to in the last couple of days, it
protects the pharmaceutical companies against class action lawsuits. I
would not have a problem with that if there was another avenue for
these parents to go to get money.
We created the Vaccine Injury Compensation Fund to take care of that.
It was supposed to be nonadversarial. Unfortunately, parents have
gotten nothing out of the Vaccine Injury Compensation Fund, even though
there is $3 billion there. So there is only one avenue they have, and
this legislation, the way I read it, blocks that.
The gentleman from Florida (Mr. Weldon) has worked with me on this,
and I think he shares some of the same concerns that I have, and he is
welcome to say a word or two if he wants to, but what I want to ask of
the manager of the bill, would the gentleman work with me to try to
clean this up so that that problem does not exist anymore; so they at
least have an avenue to deal with this?
Mr. SMITH of Texas. Mr. Speaker, will the gentleman yield?
Mr. BURTON of Indiana. I yield to the gentleman from Texas.
Mr. SMITH of Texas. Mr. Speaker, the gentleman and I have spoken
about this before. I happen to think that the problem lies with current
law and not with this particular piece of legislation. But in any case,
I share the gentleman's concerns and will work with him to address
those concerns as this bill progresses to conference committee.
Mr. BURTON of Indiana. Mr. Speaker, I thank the gentleman for his
assurances.
Mr. WELDON of Florida. Mr. Speaker, will the gentleman yield?
Mr. BURTON of Indiana. I yield to the gentleman from Florida.
Mr. WELDON of Florida. Mr. Speaker, I appreciate the gentleman's
yielding to me, and let me just add to what the gentleman was saying.
There is a lot of active research on this, and the research is not
conclusive, so we do not need to act right now.
Mr. BURTON of Indiana. Mr. Speaker, I thank my colleague.
Mr. Speaker, I wish to submit for the Record a Dear Colleague letter
which I sent to Members regarding this legislation:
Congress of the United States,
House of Representatives,
Washington, DC, July 27, 2005.
The Vaccine Liability Waiver in the Medical Malpractice Legislation
Will Hurt Autistic Children and Their Families
Dear Colleague: As we debate medical malpractice this week,
I want to bring to your attention a provision in the bill
that would waive vaccine manufacturer liability. Section 7(c)
of the legislation states that no punitive damages may be
awarded against a manufacturer or distributor of a medical
product based on a claim that the product caused harm, unless
the company violated FDA regulations. Essentially, this means
as long as the vaccine goes through the regular FDA approval
process, the company is shielded from liability.
In the 1980's, roughly 1 in 10,000 American children were
diagnosed with some kind of autism spectrum disorder. Today,
that number has risen to 1 in 166 with the number rising
alarmingly as children have been required to get more and
more shots containing the mercury-based preservative
thimerosal During my tenure as Chairman of the House
Committee on Government Reform, and as Chairman of the
Subcommittee on Human Rights and Wellness, I chaired numerous
hearings examining the alarming increase in autism in this
country over the last several decades. We also conducted a
four-year long investigation into the facts and theories
surrounding the connection between mercury in vaccines
(thimerosal) and autism and other childhood and adult
neurodevelopment disorders, such as Alzheimer's. Credible
scientific evidence points to a connection between
thimerosal, autism and other neurodevelopmental disorders.
Many of the families of thimerosal's victims did not know
about the National Vaccine Injury Compensation Program--the
no-fault compensation system that provided for quick and fair
recovery for those who experience injuries related to a
vaccination which Congress established in 1986--and were
unable to file claims within the 3 year Statute of
Limitations. Thousands of families were left out in the cold,
unable to get into the program. They are out there with
nothing. Their houses are being sold, they are going
bankrupt, they are spending all their money and leading
desperate lives trying to help their kids, and they cannot do
it. Therefore, the only recourse they had was to file a class
action lawsuit.
As the number of thimerosal injured children grew, concerns
over the potential financial impact of these class action
lawsuits, and the growing scientific research demonstrating a
connection between thimerosal and autism, and the subsequent
effect on the pharmaceutical industry's bottom line prompted
supporters of the Pharmaceutical industry to slip sections
1714 through 1717 into the Homeland Security Act of 2002
effectively killing all thimerosal class action lawsuits. In
the 11th hour without any debate, without anybody knowing
about it until it was too late, these lawsuits were stopped
in their tracks.
Fortunately, the language was ultimately removed after
being discovered by several deeply concerned Members of both
the House and Senate. Section 7(c) of the Help Efficient,
Accessible, Low-cost, Timely
[[Page H6984]]
Healthcare (HEALTH) Act of 2005 (H.R. 5) is arguably a thinly
veiled attempt to resurrect the ill-conceived Homeland
Security Act provisions of 2002, and although Section 10 of
the bill exempts vaccine cases before the National Vaccine
Injury Compensation Program, if a vaccine claimant exercises
his or her right to opt-out of VICA and bring a lawsuit in
state or Federal court or has no recourse but to file a
lawsuit because of the Statute of Limitations, Section 7(c)
of H.R. 5 will fully apply to limit that civil claimant's
rights.
Congress should strike this provision from the medical
malpractice legislation. We serve the interests of the
American people, not the pharmaceutical industry.
Sincerely,
Dan Burton,
Member of Congress.
Mr. CONYERS. Mr. Speaker, I am pleased now to yield 3 minutes to the
gentleman from New York (Mr. Nadler), a distinguished member of the
Committee on the Judiciary.
Mr. NADLER. Mr. Speaker, the Republicans have demonstrated that they
either do not have a plan to fix the problem of the uninsured, or they
simply do not care. Instead, they drag out the same tired giveaways to
insurance companies year after year while trampling on the rights of
consumers and patients.
This bill is a perfect example. It does nothing to address the real
causes of rising malpractice rates, but instead protects insurance
companies from their own poor business practices. It protects the
pharmaceutical companies. It protects the manufacturers of medical
devices. It protects everyone except the victims of medical
malpractice.
We are told the bill is necessary to drive down insurance rates
because juries are awarding too much money to plaintiffs. But the fact
is lawsuits account for less than 2 percent of health care costs, as
they always have, according to CBO. The average jury award has hardly
increased at all in the last decade. In the last year, claims payments
have decreased, gone down, by 9 percent, according to HHS, yet
insurance premiums continue to rise.
So where is the crisis? Not in huge runaway juries and not in
exorbitant awards. Yet we have here a spectacular assault on the rights
of consumers and patients. A cap on noneconomic damages of $250,000
might have been reasonable in 1975 when it was first imposed in
California, but today, and with increasing inflation, it is worth less
and less.
When we considered this bill in committee last year, I offered
amendments to raise the cap to $1.5 million, or at least to index it to
inflation so it does not get inflated down to worthlessness. Party line
vote: Cannot do that.
But the biggest weakness of this bill is that it will not work.
Anyone who thinks insurance rates will go down as a result of this bill
is being sold a bill of goods. This bill merely hopes the insurance
executives will, out of the goodness of their hearts, reduce the rates
they charge doctors. But there is no mechanism to guarantee this.
Instead, the bill will simply lead to higher bottom lines for the
insurance companies and protect the careless insurance companies and
the careless manufacturers.
Every attempt by Democrats to mandate that savings be passed along to
doctors in the form of lower rates was voted down by the Republicans.
Mr. Speaker, we should not be misled by this bill's supporters. Do not
believe for a second that insurance rates will go down as a result of
this bill. This bill should be seen for what it is: a gift from the
Republican majority to the big insurance companies at the cost of
patients' rights, and deluding the doctors and the health care
practitioners who are being led down the garden path.
If it were meant to help them, why do the Republicans refuse to put
into this bill a provision that mandates that the savings that this
bill will supposedly accomplish, at least some of those savings, are
passed along to doctors in the form of lower malpractice rates? It will
not happen.
The true thing we should do is to crack down on the 1 or 2 percent of
doctors who cause 90 percent of the insurance claims who should not be
practicing medicine, and better regulate the insurance companies. That
is what we should do to solve this problem. Instead, we have this feel-
good bill that will injure already injured patients and will do nothing
for the doctors.
Mr. SMITH of Texas. Mr. Speaker, I yield 30 seconds to the gentleman
from Georgia (Mr. Gingrey).
Mr. GINGREY. Mr. Speaker, the last two commentators in opposition to
this bill talked about the biggest problem with this bill being the
lack of consumer protection.
I am going to tell my colleagues that the biggest consumer protection
in this bill is limitation of contingency lawyer fees. When a person is
injured severely, they ought to walk out of that courtroom at the end
of the day with the preponderance, the largest portion, of that
judgment in their pocket and not in the pocket of the lawyers. And that
is consumer protection at its very best.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from Florida (Mr. Keller), a valued member of the Committee on the
Judiciary.
Mr. KELLER. Mr. Speaker, I thank the gentleman for yielding me this
time.
I support common-sense medical liability reform because it will
increase patients' access to lifesaving health care, and it will save
taxpayers over $30 billion a year in unnecessary defensive medical
tests.
Let me give a real-life example. The Orlando Regional Medical Center
is a large hospital located in the heart of my district in Orlando,
Florida. It is home to the only Level I Trauma Center in central
Florida which specializes in treating patients with severe brain and
spine injuries.
Unfortunately, this important trauma center is in danger of closing
because we only have a handful of neurosurgeons left in Orlando, and
they cannot afford to pay the medical liability insurance premiums of
over $250,000 a year. As a result of this liability crisis, this top-
rated trauma center had no choice but to turn away over 1,000 patients
last year.
Now, what happens when neurosurgeons are not available? We do not
have to guess. I personally met with Mrs. Leanne Dyess, who testified
before the Committee on the Judiciary. Her husband, Tony Dyess,
suffered a very serious head injury in a car accident. The family had
excellent medical insurance. What they did not have a was a
neurosurgeon. All the neurosurgeons in her area had left town because
they could not afford the liability insurance. As a result, it took 6
hours to transport Mr. Dyess to a different location, but it was too
late. He needed to be treated within the first hour. Mr. Dyess is now
permanently brain damaged. He is unable to communicate, work, or to
provide for his family.
Mr. Speaker, some opponents of this legislation say it is not
Congress' problem, let us just leave it up to the States. Well, it is
our problem, because the U.S. Department of Health and Human Services
estimates that this legislation will save taxpayers over $30 billion a
year by avoiding unnecessary medical tests which are ordered by doctors
under Medicare and Medicaid because of defensive medicine.
It does not have to be that way. Neurosurgeons in California, where
they have a $250,000 cap, pay an average of only $59,000 a year in
liability insurance, not the $250,000 they pay in Orlando, Florida. Let
us bring common sense back to our health care system and give patients
access to trauma centers and neurosurgeons.
Mr. Speaker, I urge my colleagues to vote yes.
Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Weiner), a valuable member of the Committee on the Judiciary.
request to amend h.r. 5
Mr. WEINER. Mr. Speaker, I move by unanimous request that we amend
H.R. 5 to include a cap on premium increases for the duration of the
bill.
The SPEAKER pro tempore (Mr. Latham). The Chair cannot entertain that
request at this time.
Parliamentary Inquiries
Mr. WEINER. Mr. Speaker, parliamentary inquiry. I am making a
unanimous consent request.
The SPEAKER pro tempore. Would the gentleman restate his request?
Mr. WEINER. Certainly. My unanimous consent request is that H.R. 5 be
amended by unanimous consent, the consent here of both the majority and
the minority, that premium increases, health insurance premium
increases, be limited to zero for the duration of the period of this
bill.
[[Page H6985]]
The SPEAKER pro tempore. The Chair will have to see the gentleman's
amendment to see if it meets the Speaker's guidelines for recognition.
Mr. FRANK of Massachusetts. Parliamentary inquiry, Mr. Speaker.
The SPEAKER pro tempore. The gentleman will state his inquiry.
Mr. FRANK of Massachusetts. Mr. Speaker, I would ask to what
guidelines the gentleman refers. I know there have been guidelines
about bringing a bill up at all, but I am not aware of any guidelines
that govern the deliberations of a bill once it has been brought
forward. Could the Speaker enlighten us as to what guidelines he is
discussing?
I am not aware of guidelines that deal with the bill once it is
before us. I understand they have dealt with whether or not you
consider the bill.
{time} 1415
The SPEAKER pro tempore (Mr. Latham). It would be inappropriate for
the chair to entertain a unanimous consent request for the
consideration of a nongermane amendment absent conformity with the
Speaker's guidelines.
Mr. FRANK of Massachusetts. Mr. Speaker, further parliamentary
inquiry. Would someone point to the rule of the House? First, Mr.
Speaker, I must say ``inappropriate'' does not seem to me to be a
parliamentary term. Something is either in order or it is out of order.
Appropriateness may deal with etiquette, it may deal with how well
Members are dressed and how nice they look, but I understood under
parliamentary procedure you are either in order or not in order. Would
someone refer to me the section of our rules, Jefferson's Manual, which
talks about appropriateness?
The SPEAKER pro tempore. If the gentleman would approach the Chair,
the Chair will gladly point out the rule.
Mr. FRANK of Massachusetts. Mr. Speaker, why would I have to approach
the Chair? This is a public forum. I believe this notion of
appropriateness is a gloss on the rules that does not exist. Can we not
have a citation to the rule of appropriateness?
The SPEAKER pro tempore. The guidelines are carried in section 956 of
the House Rules and Manual.
Mr. FRANK of Massachusetts. Mr. Speaker, further parliamentary
inquiry. We are told that these guidelines supersede the rules, during
the consideration of a bill that unanimous consent is not in order? I
had not previously heard that. Further, I understood they dealt with
whether or not Members were recognized. Once recognized, as the
gentleman from New York was, I am not aware of any restriction on what
the gentleman can do as long as it is within the rules. Those
guidelines dealt with recognition, as I understood it.
The SPEAKER pro tempore. Recognition for unanimous consent requests
is at the discretion of the Chair following the guidelines followed by
several successive Speakers.
Mr. WEINER. Mr. Speaker, further parliamentary inquiry. Is the Chair
ruling a unanimous consent request which expresses the unanimous desire
of the House of Representatives, is the Chair refusing that to be put
to the body?
The SPEAKER pro tempore. The Chair will reiterate that conferral of
recognition for a unanimous consent request is at the discretion of the
Chair according to the Speaker's guidelines.
Mr. FRANK of Massachusetts. Mr. Speaker, further parliamentary
inquiry. Does that mean any unanimous consent request to amend a bill
is out of order unless it meets what standard? Could the Chair
enlighten us as to how one would become in order?
The SPEAKER pro tempore. A unanimous consent request for the
consideration of a nongermane amendment would have to have received
clearance by the majority and minority floor and committee leaderships.
The Chair has not seen the gentleman's amendment and is unaware of such
clearance.
Mr. WEINER. Mr. Speaker, further parliamentary inquiry. Is the
concern that it is not in proper form? There has not been a point of
order that it is not germane.
The SPEAKER pro tempore. It is a matter of recognition.
Mr. WEINER. Mr. Speaker, I have been recognized, so that is not the
issue. Is the issue the form of the unanimous consent request?
The SPEAKER pro tempore. If the gentleman would submit his amendment,
the Chair would examine it.
Mr. WEINER. Mr. Speaker, if I can be further heard on the unanimous
consent request, and I believe the paperwork is on the way, it is a
very simple matter. The sponsor of the legislation says he wants to do
what is right for consumers. Over and over we have heard the connection
between the legislation and reducing premiums. All I am saying is, if
we all agree upon that, let us include the language herein.
The SPEAKER pro tempore. Is the gentleman making a parliamentary
inquiry?
Mr. WEINER. No, I want to be heard on my unanimous consent, and I was
recognized.
The SPEAKER pro tempore. The Chair has not recognized the gentleman
from New York (Mr. Weiner) on his unanimous consent request. The
gentleman is, however, recognized for the time yielded to him.
Mr. WEINER. Mr. Speaker, I still have a unanimous consent that is, I
believe, in the hands of the Parliamentarian now.
Mr. Speaker, I withdraw my unanimous consent request.
The SPEAKER pro tempore. The gentleman from New York (Mr. Weiner)
withdraws his unanimous consent request.
The gentleman from New York (Mr. Weiner) is recognized for 3 minutes.
Mr. WEINER. Mr. Speaker, I think all of the assembled
Parliamentarians, staffers, the histrionics of the other side, the
apoplexy over the idea that perhaps we might actually reduce premiums
is fairly instructive to this debate.
We had no hearings on this. We had no chance to mark it up. We had no
chance to include a reduction in premiums.
The gentleman from Georgia said this is a pro-consumer thing. If you
really wanted it to be pro-consumer, you would reduce premiums. I would
ask any Member on the other side of the aisle who supports this bill to
simply say, We do not really care about reducing premiums.
Mr. Speaker, who we are fighting for in this bill is the insurance
industry; they are getting protected. The HMOs, they are getting
protected. The pharmaceutical companies, that is who is being protected
by H.R. 5. But, frankly, do not deceive the American public by what
this bill will do.
Insurance prices will not go down. Do Members know how we know this?
First of all, the industry themselves have said in public that they
have no intention of reducing premiums if this legislation is passed.
We can look at other States that have caps. Find me one where insurance
premiums went down. Look at California, ask them whether their premiums
have gone down.
Frankly, the only way we know for sure that premiums will go down is
to cap the premiums, but you will not do that. Not only will you not do
that; you will do everything possible to avoid even considering it.
That is why committee was bypassed.
And do not also say that doctors are going to face fewer claims as a
result of this legislation. They are already seeing fewer claims since
they did in 2001. There were 25 per 1,000 physicians in 2001. There are
19 per 1,000 physicians in 2003. If we had a hearing in committee, we
might find out what it is this year. You cannot say that, and you also
cannot say this: you cannot say the amount being paid out in claims
against physicians has reduced in States where there are caps.
You want us to be a Nation where there are caps. Let us look at the
States where the caps are in place. The lowest number of claims per
1,000 physicians is in a State that does not have a cap, and the
highest are among the States that do have the caps. What this issue is
really all about, it is about who you all are fighting for and who we
are fighting for.
You are fighting to take away the right of a jury. Your citizens,
your constituents who apparently are brilliant enough to elect you, but
not smart enough to solve a case that deals with medical malpractice,
you are taking the right of a family who wants to take on a
megapharmaceutical company or a mega-HMO, and the only way they can
bring that suit is to make sure
[[Page H6986]]
they get enough money out of that company that they learn the lesson
and they do not do it again.
Mr. Speaker, there is some irony here. You control the legislature,
you control the executive, you control the judiciary, and still you do
not trust any of those people to make the decisions. Only you know how
much each and every one of these cases will yield.
Mr. Speaker, I have an alternative idea: get rid of the bad doctors,
get rid of the bad lawyers, get rid of the bad judges, and get rid of
this bad bill.
Mr. CONYERS. Mr. Speaker, I yield to the gentleman from Massachusetts
(Mr. Frank) for a unanimous consent request.
Request to Offer Amendment
Mr. FRANK of Massachusetts. Mr. Speaker, I ask unanimous consent to
offer an amendment which is in writing at the desk and is germane.
The SPEAKER pro tempore. The Clerk will report the amendment.
The Clerk read as follows:
Mr. Frank moves to strike on page 11 lines 10 through 25
and page 12.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Massachusetts?
Mr. SMITH of Texas. Mr. Speaker, I object to the unanimous consent
request.
The SPEAKER pro tempore. Objection is heard.
Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from
Massachusetts (Mr. Frank).
Mr. FRANK of Massachusetts. Mr. Speaker, the amendment I sought to
offer which was kept out by an objection from the bill's manager would
have dealt with the section referred to by the gentleman from Indiana.
I also, like the gentleman from Indiana, am prepared to vote for, as I
have in the past, some restrictions on medical malpractice.
But what we have in this bill which has not gotten a lot of
attention, and the gentleman from Indiana pointed it out, is a total
exemption from punitive damages for drug manufacturers who get an FDA
approval even though we have seen flaws in the FDA approval process.
What the majority has now made clear, they are insisting that this be
taken in whole. The gentleman from Indiana made a good point, an
objection to this amendment, and I share his objection. What I do not
share is his faith that this is going to be taken care of.
The gentleman from Indiana, my good friend, was uncharacteristically
mellow today in accepting an assurance that this will be looked at. I
agree it will be looked at. It will be held up to the light. It will be
turned upside down, and it will be looked at and looked at and looked
at until it is signed into law, and then people will still be able to
look at it as the law and those drug companies will have that
exemption.
So what I offer today, and one might have thought under democratic
procedures this would have been allowed, was simply to vote on that. I
was, in the spirit of bipartisanship, acting on the suggestion of the
gentleman from Indiana. Forget about everything said about medical
malpractice; the amendment I sought to offer and was blocked from
offering by that objection, as we were by the Committee on Rules'
heavy-handedness, simply would have allowed this body to decide whether
as part of a medical malpractice bill you would give an exemption from
punitive damages to drug companies. That is not medical malpractice.
That is not related to the core of this bill. The majority will not
even allow this to be discussed.
I think it is wrong to give that kind of exemption certainly without
a lot more consideration, but what is even more wrong is this further
abuse of power. The majority simply will not allow this House, like the
gentleman from Indiana, elected representatives of the people, to
decide on whether or not we give an exemption to the drug
manufacturers.
They take medical malpractice, a sympathetic issue, and use it to
cloak immunity for the drug manufacturers in part, and then arrogantly
refuse to allow the House to vote on it.
Mr. Speaker, I will say what I have said before. We are working with
the people of Iraq and we are trying to get them to implement
democracy. To the extent anyone from Iraq is watching the proceedings
here, I would say to them, Please do not try this at home. Please do
not, in the Iraqi Assembly, show the contempt and the disregard and the
arrogance for minority rights and democratic procedures, and maybe
majority rights. I should amend this. They are not afraid of minority
rights; they are afraid if we had an open and honest vote on this that
a majority would decide not to let the drug companies carry out under
that darkness.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 10 seconds.
Mr. Speaker, I want to say I appreciate the gentleman from
Massachusetts (Mr. Frank), who just spoke, voting for this legislation
in the last Congress.
Mr. Speaker, I yield 2 minutes to the gentlewoman from Pennsylvania
(Ms. Hart), a former member of the Committee on the Judiciary and now a
member of the Committee on Ways and Means.
Ms. HART. Mr. Speaker, I thank the gentleman for yielding me this
time.
Mr. Speaker, I rise in support of the HEALTH Act. It is called the
HEALTH Act for a very good reason. It is going to help a number of
people who now are finding it very difficult to have access to health
care.
We have considered this bill twice in the last Congress, I believe
once in the first Congress when I was here, and objecting to this as
unfamiliar to Members is simply disingenuous. This issue is so well
known, not only to Members, but to the general public, that it scores
as one of the most important issues when asked nationwide what we need
to address.
The other side of the aisle suggested we deal with bad doctors, bad
lawyers, and bad judges. Well, bad doctors, bad lawyers, and bad judges
are regulated by the States. The problem is that medical malpractice
reform should have been dealt with by the States, but my State of
Pennsylvania has not handled the problem. Many States have not acted to
deal with this problem and avert further crisis.
Patients needing care face a real crisis in access to care. The wait
is too long, the cost is too high. Physicians are quitting because of
the high cost of medical malpractice insurance. From 2003 to 2004,
Pennsylvania doctors faced double-digit medical malpractice insurance
increases. The reason: out-of-control lawsuits.
{time} 1430
According to the National Medical Practitioners Database, payouts in
my State of Pennsylvania have risen from $187 million in 1991 to nearly
$500 million in 2003. These excessive lawsuits have gotten so out of
control, as I mentioned earlier, that many doctors have quit the
practice of medicine. That means patients do not have physicians to
even see.
Last year I met with a dozen doctors from my district. Of the dozen,
nearly all of them raised their hand when I asked them if they had
children. One doctor said his wife refuses to allow her kids to study
medicine. We need to address this issue, and we need to address it
today.
Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from
Massachusetts (Mr. Delahunt).
Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield?
Mr. DELAHUNT. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Mr. Speaker, the gentleman from Texas is
right. I did vote for this bill last year, because I thought it was
about medical malpractice and did not read it carefully. In fact, what
happened was I made the mistake last year that the gentleman from
Indiana might make this year. I believed that they would honestly talk
about medical malpractice, and it did not occur to me they would try to
sneak into this bill something that gave partial immunity to the drug
manufacturers.
So I admit that I did not read it thoroughly, but I will not when the
gentleman is managing bills make that mistake again.
Mr. DELAHUNT. Mr. Speaker, I had a revelation during the course of
the exchange about capping premiums. What I found particularly
fascinating was that my good friend from Georgia, our own Dr. Phil, is
an advocate for wage control. In other words, cap those fees as long
as, I guess, it is lawyers. Maybe not for CEOs, but at least we know
that he is a proponent of wage controls for lawyers.
[[Page H6987]]
But when it comes to price control, it seems that the majority has a
problem. So you are in favor of capping wages, but not in favor of
capping prices, because really that is what it comes down to. I guess
it is a new tradition within the Republican Party.
In any event, for all the reasons that others have suggested, I think
not only does this qualify as a bad bill because it is not going to
accomplish the goal of lowering premiums, but I think, and I would
suggest, it is a cruel bill, because this cap on so-called noneconomic
damages impacts the most vulnerable among us, mothers who stay at home
and particularly children, because they have no economic damages. They
do not have such economic damages as the loss of potential earnings. So
apart from their medical bills, all of their losses are noneconomic,
like a lifelong physical impairment, or maybe a mental disability, or
disfigurement. This bill will deny them the possibility of a life that
at least has a modicum of respect and dignity in compensation for their
loss, a loss which, by the way, they had no involvement in other than
being the victim.
Mr. SMITH of Texas. Mr. Speaker, I yield 1\1/2\ minutes to the
gentlewoman from Tennessee (Mrs. Blackburn), a member of the Committee
on Energy and Commerce and a former member of the Committee on the
Judiciary.
Mrs. BLACKBURN. Mr. Speaker, they are asking what are we for and what
is this bill all about? I will tell you what we are for, what this
majority is for, and what this bill is about. It is about preserving
access to health care in our local communities, lots of communities,
like my Seventh District of Tennessee. It is not about sitting here and
saying, oh, we think all it is going to take to address health care is
a big, fat Federal Government. It is about access to health care in our
local communities.
Americans know that our health care costs are soaring. They also know
that trial lawyers many times view our hospitals and our health care
providers as a limitless ATM.
That is the reason I cosponsored this legislation. My constituents
have had enough. They have grown ill and fatigued with the stories that
are out there, with seeing their local doctors run out of town, with
seeing practices close up, and with knowing that they have access to
less and less available health care. We know that only one in seven OB-
GYNs now deliver babies for fear of being sued, and the national
medical liability rate has risen almost 500 percent since 1976.
This is an issue that affects our families. It affects women. It
affects children. It affects our rural communities. This bill is a way
to assist in preserving health care for our local communities.
Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from
Illinois (Mr. Emanuel), who has followed this subject ever since he has
come to Congress.
Mr. EMANUEL. Mr. Speaker, I speak as both the son of a doctor and the
son of a nurse. I introduced the Vioxx amendment that would prohibit
this special liability protection for the pharmaceutical companies.
Many Americans across the country are watching the Vioxx trial in Texas
where the Ernst family has lost their loved one, a marathon runner, a
personal trainer, who died a premature death because he took Merck's
Vioxx medication, and the FDA was not provided with all the information
that should have warned of the dangers from that. According to the
FDA's doctor, approximately 55,000 premature deaths occurred because of
Vioxx. That is the trial the American people are watching.
And then they tune in here to this Congress. What is this Congress
trying to do? They are trying to protect Merck and the other
pharmaceutical companies in a way that no other industry would get that
type of protection from any liability. This Congress would intervene in
that civil trial down in Texas where the Ernst family is trying to get
their proper redress from the premature death of a marathon runner who
had a heart attack because the information was withheld.
The irony of this whole situation is just last year, this Congress,
bipartisan, said the FDA did not have the proper resources to regulate
these medications. And now you want to hide behind the FDA's Good
Housekeeping seal to give protection to an industry in a way that no
other industry in America gets.
Last year this Congress gave the pharmaceutical industry $132 billion
in additional profits through the prescription drug benefit. Now you
want to give them liability protection in a way that no other industry
gets. You are like the gift that keeps on giving. There is a gift ban
that is on in this Congress, and at some point the pharmaceutical
industry has got to be held accountable just like everybody else.
The Ernst family lost a loved one. According to the FDA, about 55,000
other deaths also have occurred. Let us have a debate about medical
malpractice. Don't muck it up with your political goals of trying to
protect the pharmaceutical industry and other families from the proper
redress of the courts.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 20 seconds.
Mr. Speaker, regarding Vioxx, some have alleged the company knowingly
misrepresented or withheld information from the FDA. If so, they would
be denied the protections in the bill because the bill specifically in
section 7 says and excludes any instances in which a person, before or
after premarket approval, clearance, or licensure of such medical
product, knowingly misrepresented to or withheld from the FDA
information that is required to be submitted.
If we look at the language of the bill, we can see that what the
gentleman said is not relevant.
Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania
(Mr. Dent).
Mr. DENT. Mr. Speaker, prior to coming to the U.S. Congress, I served
14 years in my State general assembly. I spent a lot of time on this
issue, dealing with issues like caps on noneconomic damages, collateral
sources, periodic payments, joint and several liability modifications
and venue shopping. I just heard some statements from the other side,
well-intentioned, but, I must respectfully say, misguided, that simply
mandating a premium reduction will not solve this problem. What will
happen is what happened in my State.
In 1975, a State-administered medical liability program was created
because no one wanted to write insurance in the Commonwealth of
Pennsylvania in 1975. We were in a crisis. That did not solve the
problem. That State-administered program is broke. My general assembly
has appropriated hundreds of millions of dollars to pay doctors'
medical liability premiums and hospitals' premiums. That is what will
happen if you mandate that premium reduction. It sounds good, but it
does not fix it.
The Governor of my State, Ed Rendell, a Democrat, I talked to his
insurance commissioner a couple of years ago. I said, if this is an
insurance problem, let's look at the numbers. For every dollar paid at
that time in medical liability premiums, there was $1.27 in losses
incurred; $1 in, $1.27 out. That is an insurance problem. No one wants
to write insurance. So if you mandate a premium reduction or hold it
harmless, the State is going to have to set up a program, and they are
going to have to find the money, and they are going to turn to the
taxpayers. That is what is happening. We are in crisis.
This legislation we are dealing with helps deal with this issue
because providing for caps on noneconomic damages, Mr. Speaker, will
help restore some level of predictability and stability to the
insurance marketplace. You need to have people wanting to write
insurance in these States. Competition will help you actually drive
down costs. I know that some might find that unbelievable, but it will
work. It has to work.
I rise to speak in favor of H.R. 5, the Health Act of 2005.
This bill addresses one of the central issues in health care today:
the way in which unpredictable, out-of-control legal judgments are
driving up health care costs. This bill sets caps on punitive and non-
economic damages that result from malpractice litigation. This is
important because, as the Congressional Budget Office has noted, under
this act, medical liability premiums would be an average of 25 to 30
percent below what they would be under current law.
High medical liability premiums are creating serious doctor
recruitment and retention problems in my State, especially in so-called
``high
[[Page H6988]]
risk'' disciplines such as neurosurgery, orthopedics, emergency
medicine, I and obstetrics. In my district, the crisis created in part
by outrageous malpractice judgments is best exemplified by the
experience of St. Luke's Hospital.
St. Luke's has been recognized nationally 17 times for clinical
excellence. Despite this accomplishment, St. Luke's became the target
of a frivolous, outrageous lawsuit in the fall of 2000. As a direct
result, St. Luke's professional medical liability costs increased more
than $4 million in just 2 years.
As a result of medical liability issues, Pennsylvania hospitals face
challenges retaining neurosurgeons, without whom trauma centers cannot
operate. In fact, a few years ago, another regional hospital serving my
district--Easton Hospital--lost all of its neurosurgeons to other
States. And Lehigh Valley Hospital, an extraordinary three-hospital
network and the largest employer in my district, experienced a fivefold
increase in their liability costs over the past few years.
Nothing about this bill prevents a litigant from seeking his or her
day in court. In California, which was the model for the current health
act, plaintiffs with legitimate claims still enjoy large recoveries.
The Government Accountability Office, GAO, has determined that
California has controlled medical liability insurance premiums much
better than has my home State, Pennsylvania. In fact, in Pennsylvania
the medical liability crisis is so acute that the legislature has
appropriated hundreds of millions of dollars to assist physicians and
hospitals with rapidly rising medical liability premiums. That's like
placing a Band-Aid on a gaping wound. Structural reform is needed;
taxpayers bailouts--Band Aids, if you will--don't solve the underlying
problem.
For all these reasons, I believe that congressional intervention is
essential in the form of support for the Health Act of 2005.
Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman
from Florida (Mr. Wexler).
Mr. WEXLER. Mr. Speaker, the gentleman from New York (Mr. Weiner)
smoked out the truth about this bill a couple of minutes ago when he
simply asked that the bill include a provision that would require a
flat medical malpractice premium rate. He smoked out the truth, and
what we now know is that this bill is not about providing access to
health care. It is not about solving a health care crisis. What it is
about is protecting the insurance industry.
In fact, a study by the insurance commissioner of Missouri found that
while malpractice premiums for doctors doubled from 2000 to 2004,
malpractice claims during the same period increased less than 6
percent. Insurers themselves admit that capping medical malpractice
payments will not reduce premiums. In fact, States that have caps have
higher premiums than States without caps in every medical field,
including internists, surgeons and OB-GYNs.
The proponents of this bill claim that large payouts are driving up
the cost of medical malpractice insurance. Nothing could be further
from the truth. In fact, the opposite is occurring in Florida where the
average amount insurers are paying for claims has gone down 14 percent
since 1991. At the same time, however, premiums charged by insurers
have increased 43 percent. In particular, overall claim payouts for
Florida's largest medical insurer, FPIC, dropped 22 percent in the last
4 years. Outrageously, remarkably, this same insurer saw a 154 percent
increase in profits for the first quarter in 2004.
This legislation needs to be seen for what it is. It is not about
helping doctors. It is not about helping patients. The only goal of
this legislation is to ensure even higher profits for insurance
companies while not doing a blasted thing to help the sick people in
America, to help the people that provide the medical services to our
people. This bill will not do one iota to improve health care in this
country. The gentleman from New York smoked it out just right.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from Texas (Mr. Burgess).
Mr. BURGESS. I thank the gentleman for yielding me this time to speak
on this important issue today.
Mr. Speaker, we, of course, passed this bill some 2 years ago last
March. Down in Texas we passed a bill 2 years ago this September and a
constitutional amendment that would essentially provide the same type
of cap on noneconomic damages that we are discussing here today in H.R.
5.
It has been said before that the States are great laboratories for
the Nation. If that is the case, let us examine what has happened in
Texas in the 2 years since the cap has been passed. When I ran for
Congress in the year 2002, we started the year 2002 with 17 insurers in
the State of Texas. By the time I took this office at the start of
2003, we were down to two insurers. It is pretty hard to get
competitive rates when you have driven 15 insurers out of the market.
Since the passage of the Proposition 12 in September of 2003, which
allowed a cap on noneconomic damages, we have had 12 insurers come back
to the State, which has provided competitive rates, and Texas Medical
Liability Trust, my old insurer of record before I left medical
practice, immediately dropped its rates 12 percent after the passage of
Proposition 12 and then dropped its rates another 5 percent for a total
of 17 percent in the first year since Proposition 12 was passed.
Most importantly, Mr. Speaker, an unintended consequence of the
passage of Proposition 12 in Texas was what has happened in private,
not-for-profit hospitals.
{time} 1445
The Cristus Health Care System in south Texas, a self-insured
hospital system, realized a $12 million savings from the first 9 months
after that proposition was passed, money that was put back into nurses'
salaries, capital expansion, the very things we want our hospitals to
spend money on if they were not having to pay it for noneconomic
damages.
And, finally, I just cannot let pass the statement about price
controls. Physicians have lived under price controls, certainly all of
my professional career, for the last 25 years. We have managed,
sometimes poorly. But what happens when we have price controls is we
end up with lines, and one of the biggest problems we have right now is
that doctors are dropping out of practice, and we do not have the
practitioners there to provide care for the patients.
Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentlewoman from
Nevada (Ms. Berkley).
Ms. BERKLEY. Mr. Speaker, I thank the gentleman from Michigan (Mr.
Conyers) for yielding me this very precious time.
Mr. Speaker, I am a doctor's wife. There is nobody in this body that
wants medical malpractice reform more than I. My husband's medical
malpractice has gone up exponentially every single year for absolutely
no reason, and if I thought for a minute that this legislation would
cure that problem and provide relief for the doctors of this country, I
would be all over this legislation.
Unfortunately, this piece of legislation will not do what the
Republican side of the aisle says it will. And if the Republican
leadership really wanted to provide relief for the doctors, we would
have legislation on the floor that the bipartisan Congress could vote
on and support and pass and put before the President for signature.
This is a bill not to help the doctors. This bill contains and limits
claims against negligent hospitals, drug companies, medical device
manufacturers, nursing homes, HMOs, and insurance companies. This bill
is not for doctors. This bill is a gift to the insurance companies.
There is no provision, there is not one line, one sentence in a 26-page
bill, that would ensure that the savings that was realized by the
insurance companies would be passed on to the doctors. The doctors will
continue to suffer while the insurance companies will get happier and
richer.
There is a medical crisis in this country. There is a crisis in
access to health care. This is not the legislation that is going to
cure that. And for those people who talk lovingly and glowingly of the
insurance companies and the marketplace and competition will lower the
cost for the doctors, let us have another thought about that. Since
when, since when, can the doctors put their faith in the insurance
companies when it is the insurance companies that are messing up the
doctors? I do not like to see the doctors being used by the insurance
companies to do the insurance companies' dirty work.
Let us get a reality check here. Let us not pass this dog of a piece
of legislation. Let us work together and pass legislation that is truly
going to provide medical malpractice reform and
[[Page H6989]]
lower premiums for the doctors. They need it, and they deserve it.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentlewoman
from North Carolina (Ms. Foxx).
Ms. FOXX. Mr. Speaker, I thank the gentleman from Texas for yielding
me this time.
I rise because this outstanding bill we are voting on today is so
important to my constituency. Skyrocketing insurance premiums have been
diminishing our Nation's health care delivery system for far too long.
Women have been affected severely as OB/GYN doctors have stopped
delivering babies because financially it does not make sense for them
to practice in that area. The physicians who bring life into this world
are too often forced to reject high-risk patients out of fear of future
litigation. Trial lawyers continue to harass America's doctors.
Physicians continue to face the burden of skyrocketing insurance
premiums.
As a mother and grandmother, I know this is not acceptable. The
HEALTH Act of 2005 will provide the means to take action and thwart the
efforts of greedy trial lawyers. In turn, this will help Americans,
specifically women, obtain better access to the health care they need
and deserve. More doctors will stay in business, creating more
treatment options, less expensive care, and better access to health
services for all Americans.
Health care dollars should be spent on patients in the hospital, not
on lawyers in a courtroom. This bill will direct more health care
dollars to treating and curing patients, which is what our health care
system should be about.
I urge my colleagues to join me in supporting this bill, and I urge
our Senators to drastically improve America's health care system by
passing this bill as soon as possible.
Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman
from California (Ms. Linda T. Sanchez), who serves with distinction on
the Committee on the Judiciary.
Ms. LINDA T. SANCHEZ of California. Mr. Speaker, I thank the
gentleman from Michigan (Mr. Conyers) for yielding me this time.
Mr. Speaker, I rise in strong opposition to this unconscionable
medical malpractice liability bill. This bill will do nothing to reduce
the skyrocketing health care costs in this country. All it will do is
deprive people who are already sick and injured of justice.
Mr. Speaker, it is undeniable that most Americans do not have access
to affordable health care and that many specialists and trauma centers
are closing their doors. But instead of addressing our health care
crisis head on, my Republican colleagues have come up with H.R. 5.
H.R. 5 is as deplorable as it is ineffective. Trying to stabilize
medical malpractice insurance rates by capping legitimate victims'
damages is akin to trying to put out a forest fire with a squirt gun. I
know that H.R. 5 will not magically keep medical malpractice insurance
rates down and keep doctors in business because the bill is modeled
after California's Medical Injury Compensation Reform Act, better known
as MICRA.
My Republican colleagues love to sing the praises of MICRA. But guess
what? MICRA did not work. MICRA's caps on pain and suffering damages
have not reduced insurance rates for doctors in my State. MICRA was
signed into law in 1975, but medical malpractice insurance rates did
not stabilize until years after MICRA was passed. In fact, between 1975
and 1993, California's health care costs rose 343 percent, nearly twice
the rate of inflation and 9 percent higher than the national average
each year.
When California's insurance rates stabilized, it was because the
State passed legislation to directly deal with the insurance problem.
They passed an insurance reform bill known as Proposition 103.
It is a shame that the Republican leadership of the House is further
victimizing victims instead of getting at the root of the real problem.
Where is the Republican leadership on the real health care issues that
Americans care about? Where is a Republican House bill to provide
health care for every working family? Where is a Republican House bill
to encourage more students to go into medicine and nursing and for
practicing doctors to keep their doors open? Where is a Republican
House bill that deals directly with medical malpractice insurance
rates?
My Republican colleagues have not offered bills that will help reform
our health care system. Legislation like that would have prevented the
forest fire before it even began. Instead, House Republicans cap
legitimate victims' damage awards. H.R. 5, without insurance and health
care reform, is meaningless. H.R. 5 simply reinjures the legitimate
victims of medical malpractice, and we should vote ``no'' on H.R. 5.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentlewoman
from Washington (Miss McMorris).
Miss McMORRIS. Mr. Speaker, I thank the gentleman for yielding me
this time.
I also rise in support of H.R. 5, which will bring needed medical
liability reform to health care providers in Washington State.
As I travel around eastern Washington, I hear from desperate doctors
and health care providers that these lawsuits are increasing costs to
patients and driving doctors out of business. It is not unusual to hear
that doctors are being forced to drop their insurance or stop
delivering babies, or younger doctors are quitting to practice
overseas. This is at a time when we have a health care personnel
shortage. This has happened in areas within my district, such as
Odessa, Republic, and Davenport, where we have no OB/GYNs, and pregnant
women must travel over an hour now for care. Additionally, it is
becoming impossible to recruit and retain specialists, such as
neurosurgeons and cardiologists, when 30 to 50 percent experience
lawsuits annually. Emergency care is in no better shape with over 30
percent of trauma surgeons being sued each year. This is unacceptable
for 21st century health care.
Skyrocketing medical liability insurance costs for doctors and health
care providers has caused the American Medical Association to declare
that Washington State is in a medical liability crisis. In the past 10
years, the average jury findings in my State have increased 68 percent.
As well, the number of million-dollar settlements has risen almost ten
times.
This is an important bill that limits excessive lawsuits, but also
ensures that those who are truly harmed are going to get their day in
court. Over the past few years, had this law been enacted, Washington
would have saved an estimated $53 million. HHS estimates that by
setting reasonable guidelines for these noneconomic damage awards, we
will save between $70 billion and $126 billion in national health care
costs annually.
H.R. 5 will bring common-sense reform to outrageous liability rates
and will protect patients' access to quality and affordable health
care.
Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from
Massachusetts (Mr. Markey).
Mr. MARKEY. Mr. Speaker, I thank the gentleman for yielding me this
time.
All the public should know on this bill is that no Democrats were
allowed to make any amendments to this bill. They were not allowed to
debate this bill. Even the great gentleman from Michigan (Mr. Conyers)
of the Committee on the Judiciary, no amendments allowed. None. No
thought required by half of the Congress. And do the Members want to
know why? Because this bill is really the pluperfect payback of the
Republican Party to the insurance industry. This bill will victimize
patients in the courtroom after they have already been victimized in
the operating room. That is what it is all about.
The premise of the bill is this, and it is not a bad premise: If they
are willing to lower the amount of money that somebody can receive for
the pain and suffering that they have had inflicted upon them by some
medical operation, then, in turn, there will be a lowering of the
premiums that doctors have to pay. That is kind of the trade-off that
the Republicans have. Lower return for the patients for their pain and
suffering, but we also get, as a result, lower premiums for the
doctors.
But 2 years ago when I made the amendment in the Committee on Energy
and Commerce that would have said that all of the savings from the pain
and suffering of patients would
[[Page H6990]]
then go to lowering of premiums for doctors, every Republican voted
against that because the insurance industry does not want the money to
go to lower premiums for doctors. And then this year when I wanted to
make an amendment in the Committee on Energy and Commerce that would
have said the same thing, lower premiums, I was not allowed to make the
amendment. Out here on the House floor, I was not allowed to make the
amendment.
So it is not about lowering the premiums for physicians with the
money that is ``saved'' from the money that would have gone to someone
whose family had been harmed because they might have lost their sight,
their limbs, their ability to bear children, their ability to fully
function in society. All of those savings for the insurance industry,
they are very real. But the lowering of medical malpractice fees is
only illusory.
And, secondly, the bill will protect the pharmaceutical industry from
liability as long as the drugs that harm patients are FDA-approved. The
FDA approval is designed to protect patients from harmful drugs, but it
should not waive a company's responsibility for drugs they put on the
market. With all of the recent reports about how FDA approved drugs
that harmed people, from Vioxx to Bextra to Accutane to Paxil, now is
not the time to limit patients' access to the courts, but that is what
the pharmaceutical industry and the insurance industry is going to get
on the House floor today.
Vote ``no'' on this bill.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from California (Mr. Lungren), a member of the Committee on the
Judiciary and former attorney general of California.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the
gentleman for yielding me this time.
I would like to just make some comments on some of the suggestions
that have been made that MICRA does not work in California and refer
only to those parts of this bill that are patterned after MICRA.
Prior to the time that I came to Congress for the first tour, I did
medical malpractice cases in California, primarily on the defense side
for doctors and hospitals, but I also handled some plaintiffs' cases.
In fact, I think I had one of the first successful lawsuits against an
HMO in the entire country.
MICRA came into California at a time when we had a crisis, when we
had a medical crisis of doctors leaving the State of California or
stopping their practice.
{time} 1500
It was particularly acute in some specialties, but it was across the
board. The evidence is there. The history is there. I can tell you it
was there; I saw it.
In 1975, the legislature, in response to that problem, passed MICRA.
That is what this is patterned after. It had a $250,000 limitation on
pain and suffering. It had these other recommended changes with respect
to recovery. It has not stopped successful lawsuits against doctors who
have, in fact, committed malpractice.
But what it has done is it has taken a part of the process that
basically abused the process out. And what it has done is stabilize
what was otherwise a tremendous spiral in the medical malpractice
premiums that doctors saw.
Now, some have suggested that is not the case in California. What I
can tell my colleagues is it stopped the exit of doctors from the State
of California. It stopped the exit of specialists from practice in the
State of California. And while it did not diminish entirely the
increases, it stopped the trajectory of increases. As a result, it did
provide a very serious partial solution to the problem that we found in
California.
That is the model. To the extent this bill is modeled after MICRA,
that is the model we are talking about.
So if people want to talk about pilot projects, we have a 20-plus-
year pilot project in the State of California. Ask the medical
community whether or not it has been effective. Ask the patients who
now have availability to the services of doctors who otherwise they
would not have had we not done something in the State of California.
So for those who are wondering whether or not this will work, at
least that part of the bill that is patterned after MICRA will. We have
now had a 20-plus-year pilot project, and it has proven to be
successful.
Mr. CONYERS. Mr. Speaker, I would like my colleague to know that this
bill is based on the California program MICRA, and premiums for medical
malpractice insurance grew more quickly between 1991 and 2000 than the
national averages. Just remember that.
Mr. Speaker, I yield 45 seconds to the gentlewoman from California
(Ms. Solis).
Ms. SOLIS. Mr. Speaker, I rise in opposition to H.R. 5. It is an ill-
conceived, ill-crafted bill that does nothing to help drive costs down.
Studies have shown that this is not the way to go. In fact, insurance
companies are the ones that are gaming us right now.
In California, malpractice rates have actually come down because we
have enacted tough legislation, as was mentioned earlier. We need to do
more to provide for, I would say, a level playing field so that the
insurance companies do not walk away taking advantage of our consumers.
Mr. CONYERS. Mr. Speaker, I yield the remainder of my time to the
gentlewoman from South Dakota (Ms. Herseth).
Ms. HERSETH. Mr. Speaker, I thank the gentleman for yielding me this
time.
Mr. Speaker, I also rise today in strong opposition to H.R. 5. As
many of my colleagues have pointed out, there are various troublesome
aspects of this bill, including the recent study that demonstrated
clearly the rising cost of insurance premiums, while the claims have
remained steady in terms of the ultimate litigation outcomes of those
claims that have been filed. So we should not be passing any
legislation that is not more comprehensive to hold insurance companies
accountable as well.
But H.R. 5 is also troublesome because of its blatant disregard for
States' rights. In South Dakota's 2004 legislative session, a bill
modeled on H.R. 5 was defeated in committee on a unanimous bipartisan
vote. I think this sends a strong signal that H.R. 5 does not provide
the type of comprehensive solution to medical malpractice insurance
premiums that States are looking for and will stifle innovation in the
States that has been important to the health care industry.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 20 seconds.
Mr. Speaker, I just want to reply very quickly to the point that was
made, and that is that this bill does not violate any States' rights.
Section 7(a), it very clearly says that if any State has any cap of any
amount, be it higher or lower than the caps in the bill, then that
State's cap will prevail.
So this recognizes States' rights. It is friendly to States' rights.
Mr. Speaker, I yield 2 minutes to the gentleman from Ohio (Mr.
Chabot), a member of the Committee on the Judiciary and also chairman
of the Subcommittee on Constitutional Law.
(Mr. CHABOT asked and was given permission to revise and extend his
remarks.)
Mr. CHABOT. Mr. Speaker, I thank the gentleman for his leadership on
this bill. I rise in strong support of the bill, and I would urge my
colleagues to support it.
The costs of the tort system continue to take their toll on the
Nation's economy. Medical professional liability insurance rates have
skyrocketed, causing major insurers to drop coverage or raise premiums
to unaffordable levels. We have heard case after case where this last
occurred nationwide. In fact, in my home State of Ohio, it has been
designated as a ``crisis State'' by the American Medical Association.
According to some estimates, premiums are now rising in Ohio anywhere
from 10 percent to 40 percent, with many doctors involved in specialty
practices such as obstetrics seeing their premiums rise by 100 percent,
100 percent or, in some cases, even more. Obviously, this has a
negative impact on both patients and doctors, causing higher costs and
forcing many doctors to close their practices.
The HEALTH Act, this act that we are debating here this afternoon,
addresses this crisis by eliminating frivolous lawsuits and making
health care more accessible and more affordable. We have been talking
about doing that for years. This is a bill where we can actually do
something about making health more affordable.
[[Page H6991]]
The HEALTH Act has enjoyed strong support in the House of
Representatives in past Congresses, and I strongly urge my colleagues
on both sides of the aisle to support this commonsense legislation if
they are serious about bringing the high cost of health care in this
country down to affordable levels.
Ms. DeGETTE. Mr. Speaker, I yield myself 5\1/2\ minutes.
Mr. Speaker, the American health care system is in crisis, in part,
because of skyrocketing medical malpractice insurance rates. This
crisis, however, is not the result of frivolous lawsuits, but of
insurance industry practices.
The so-called solution that we are debating today, carving out
enormous new liability exemptions for health insurers, pharmaceutical
companies, medical device manufacturers, and nursing homes would not
lower doctors' malpractice insurance rates by one dollar. Too many
doctors are struggling to keep their practices afloat under the burden
of enormous insurance premiums but, instead of helping them, what we
are doing today is penalizing the severely injured patients and the
families of those who die a result of medical negligence without
providing any relief to the doctors from high malpractice insurance
rates.
A new study, and we have been talking about it today, by the Kaiser
Family Foundation, found that since 2001, there has been a 25 percent
decrease in the average number of medical malpractice claims per
physician.
Now, if medical malpractice claims have decreased, why do insurance
premiums continue to increase? We have been talking today about MICRA,
the California insurance program. Now, it is true, the State capped
medical malpractice payments in 1975; but despite this, as we just
heard from the gentleman from Michigan (Mr. Conyers), malpractice
premiums rose 450 percent over the next 13 years. Only after 1988, when
California also implemented insurance reform, did the rates go down.
But, today, instead of insurance reform, we are focusing entirely on
capping damages.
Now, even the spokesman for the American Insurance Association,
Dennis Kelly, said these words. He said, ``We have not promised price
reductions with tort reform.''
So I want to ask my colleagues, why are we doing this bill today?
What is the real reason for this bill? If the malpractice insurance
companies are not going to reduce insurance premiums for these
beleaguered doctors, why are we passing this bill? And what is the
cause of the increasing insurance rates?
Some suggest that rate hikes are due to insurer investment losses.
Others point to old-fashioned price gouging. This year, for example,
the Washington State insurance commissioner ordered insurers to refund
more than $1 million in premiums to physicians because rate hikes were
unjustifiable. But I tried to do an amendment, I did it in committee
last time when we heard it, and I tried to submit it to the Committee
on Rules: let us do a study. Let us figure out why these rates are high
and why Dennis Kelly says they are not going to go down.
The Republican majority refused to even allow a study of malpractice
insurance rates and why they are so high. That is what this bill is
really about. Because billion-dollar insurance companies have Federal
antitrust exemptions, they are allowed to legally fix prices, and this
has helped the industry gain a record $25 billion in annual profits.
Now, there is one thing we can agree on across the aisle: Congress
must stop this price-gouging of physicians. But granting blanket
liability protection to negligent nursing homes, to pharmaceutical
companies, and insurance companies, without addressing insurance
billing practices, does nothing to solve the problem for these doctors.
And what is worse, the immunity for these other industries will be
broader than any State tort reform law. It will do nothing to help the
doctors; and in the end, it will serve to severely limit the rights of
many millions of Americans.
It undermines our health care system to penalize victims of medical
negligence in the name of relieving doctors' burdensome malpractice
premiums when, actually, nothing is being done to reduce those
premiums. Unfortunately, I think this is as a result of an aversion of
some in Washington to what I would call fact-based policymaking.
Now, there is a solution. We could work across the aisle to reduce
medical malpractice insurance rates, and we could do this by passing
bipartisan insurance reform. This would get to the root of the crisis
by reducing artificially inflated insurance rates for doctors and not
punishing injured patients.
One further note. I hear all day that States are having a terrible
problem: doctors cannot get insurance, OB/GYNs are leaving. If this is
a State problem, I say to my colleagues, if States are having these
issues, I want to know why we are trying to address it at a Federal
level. This is not traditionally a Federal issue. The States can do it.
One further note. Anyone reading this bill would know, for the
gentlewoman from South Dakota's (Ms. Herseth) State and every other
State, this bill would supersede any other rate or caps they might have
with the Federal law. That is wrong. I think we should abide by States'
rights and defeat this bill.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 1\1/2\ minutes.
Mr. Speaker, what was just said was actually contradicted by the
Government Accountability Office. The GAO found that rising litigation
awards are responsible for skyrocketing medical professional liability
premiums. The report stated that ``GAO found that losses on medical
malpractice claims, which make up the largest part of the insurers'
costs, appear to be the primary driver of rate increases.''
The GAO found that insurers are not to blame for skyrocketing medical
professional liability premiums. The GAO report states that insurer
``profits are not increasing, indicating that insurers are not charging
and profiting from excessively high premium rates.''
Mr. Speaker, I also want to say that the opponents of this
legislation are forgetting, I hope not ignoring, a study by the Harvard
Medical Practice. What this study found is that over half, over half of
the filed medical professional liability claims they studied were
brought by plaintiffs who suffered either no injuries at all or, if
they did, such injuries were not caused by their health care providers,
but rather by the underlying disease itself.
Mr. Speaker, I yield 4 minutes to the gentleman from Georgia (Mr.
Gingrey).
Mr. GINGREY. Mr. Speaker, I thank the gentleman for yielding me this
time.
Mr. Speaker, I would like to take my time, I hope sufficient time, to
refute some of these statements that have been made in opposition. I
want to start with the gentlewoman from Colorado who just spoke. It is
absolutely wrong about the issue of Federal law superseding State law
in cases where the State has already addressed the issue.
{time} 1515
Let us say the issue of caps, my State of Georgia passed a law this
year, and the caps there are $350,000. That would be applicable State
law would apply. It is only when States have not addressed the issue
when the Federal law would speak.
I want to also address something the gentlewoman said in regard to
this bill being nothing. I have heard this not just from her, but from
number of other speakers on the other side in opposition, talking about
that this is nothing but a protection for the insurance industry, and
it is another bail-out of protection for the pharmaceutical industry,
and they are relieved of all liability, which is absolutely untrue, Mr.
Speaker.
In fact, last night when we were talking about the rule, the
gentleman from Arkansas, a registered pharmacist, opposed the rule and
the bill basically for the same reason. I would like to remind him. I
hope the gentleman is listening to the discussion this afternoon. But
this would protect a pharmacist who prescribes a drug, a legally FDA-
approved drug, that the pharmacist had no idea that there might be a
problem or an adverse reaction. This is what this bill does. That would
protect the pharmacist from punitive damages in a case like that, where
there was no deliberate intent to harm the patient.
So it is very important that all of our colleagues understand the
truth
[[Page H6992]]
here. The gentleman from Illinois kept talking about the Vioxx case,
and the marathon runner. Well, if Vioxx and the company that makes that
drug is guilty of withholding pertinent information that they had in
clinical trials, and they knew that it was a harmful drug that they put
out there on the market and exposed patients to that drug, then they
are going to pay one heck of a price for that, yes, in punitive
damages.
So they are not relieved from that under this bill. It is only when
they did everything right and they were approved by the FDA that they
would have any relief from punitive damages.
There are plenty of great athletes, Mr. Speaker. I remember an All-
American basketball player from St. Joseph's University 10 or 15 years
ago that dropped dead on the basketball court. He was not taking Vioxx.
But we will see how that case turns out.
The issue was brought up, Mr. Speaker, about young children who are
injured, and they do not have a job or profession, so they need this
pain and suffering compensation that can be infinity, hundreds of
millions of dollars, rather than a cap at 250-, when the truth is the
triers of fact, Mr. Speaker, the jury, can determine the life span, the
expected life span of that child and what their earnings would be over
the course of that lifetime. The same thing in regard to a stay-at-home
mom who was a professional maybe, an attorney possibly, before she
decided to become a mother and a homemaker. Those earnings would be
calculated as well.
Finally, Mr. Speaker, a little while earlier a speaker in opposition,
the gentleman from New York, he made this statement: It comes down to
the issue of who we are fighting for. I am really not sure who the
gentleman in the opposition is fighting for. I suspect that I know who
they are fighting for. Does ATLA sound familiar to you, my colleagues?
But I am going to tell you who we are fighting for. We are fighting
for the patient. We are fighting for their right to have the ability to
access needed specialists in health care, and they are not going to be
there if we do not level this playing field.
Ms. DeGETTE. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman
from California (Mrs. Capps).
Mrs. CAPPS. Mr. Speaker, I thank the gentlewoman for yielding time to
me.
Mr. Speaker, no one disputes that rising medical malpractice premiums
are a major, major problem. Unfortunately this bill before us will do
nothing to solve that problem. It would limit consumers' ability to
hold negligent doctors, profit-driven HMOs, insurance companies, and
prescription drug companies accountable.
The claim is made that excessive or frivolous lawsuits are the cause
of rising premiums. The problem is that lawsuits affected by the bill
are by definition not frivolous.
Where large damages are awarded, it is a jury that has found that the
patient has been severely harmed, and, in fact, over the last 5 years,
malpractice insurance payments to patients have actually gone down, and
that while premiums continue to go up. Now, something is wrong with
that ratio.
There is no evidence that capping the damages to an injured person
because of malpractice is the way to solve this problem. It will not
lower premiums. It will not even stabilize them. All this bill will do
is to make very sure that as the malpractice insurers collect
outrageous premiums, they will be able to continue to pay out even less
to the patients who have actually been harmed. This will penalize
innocent victims of medical negligence.
Furthermore, the bill goes far beyond lawsuits against doctors. It
would also protect drug companies and HMOs from lawsuits filed by
people injured because of their policies.
In 3 years of considering this issue, the majority has not presented
a shred of evidence that drug companies need these protections. They
are making billions of dollars in profits. If this bill becomes law,
the ability of injured patients to hold negligent drug companies
accountable would be dramatically limited. We have all seen the recent
stories about Cox-2 inhibitors, other medications. So many have tragic
outcomes. They highlight the fact that drugs may harm patients. Those
studies expose how dangerous this bill can be. We should be helping
doctors with malpractice insurance premiums. But this bill is not going
to help doctors, and it will hurt patients.
Mr. Speaker, I urge my colleagues to vote against this bill. Let us
look for real solutions to rising medical malpractice premiums.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 3 minutes.
Mr. Speaker, I thought my colleagues might be interested in some
quotes. One quote is from a former Democratic Senator, and the other
quote is from a liberal Washington Post columnist. I would like to read
those now.
Former Democratic Senator George McGovern has written that ``legal
fear drives doctors to prescribe medicines and order tests, even
invasive procedures that they feel are necessary. Reputable studies
estimate that this defensive medicine squanders $50 billion a year,
enough to provide medical care to millions of uninsured Americans.''
Mr. Speaker, this is from a prominent liberal commentator, Michael
Kinsley. He wrote in the Washington Post, ``Limits on malpractice
lawsuits are a good idea that Democrats are wrong and possibly foolish
to oppose. Republicans are right about malpractice reform.''
Mr. Speaker, also we have a number of polls showing that the American
people support the HEALTH Act. Between two-thirds and three-quarters of
the American people support exactly what we are trying to do. Just this
week a poll conducted by Harris Interactive showed that 74 percent of
those surveyed support reasonable limits on the award of noneconomic
damages and limiting payments to personal injury attorneys.
A poll by the Harvard School of Public Health found the following:
``More than 6 in 10, 63 percent, say they would favor legislation that
would limit the amount of money that can be awarded as damages for pain
and suffering to someone suing a doctor for malpractice.''
The same poll found that 69 percent of the people surveyed say a law
limiting pain and suffering awards would help either a lot or some in
reducing the overall cost of health care.
Finally, the results of a recent Gallup poll show that the American
public strongly supports the HEALTH Act. The survey asked whether those
surveyed would favor or oppose a limit on the amount patients can be
awarded for their emotional pain and suffering. Mr. Speaker, 72 percent
were in favor. That means three-quarters of the American people favor
this HEALTH Act.
Mr. Speaker, I reserve the balance of my time.
Ms. DeGETTE. Mr. Speaker, I yield 3 minutes to the gentleman from
Michigan (Mr. Stupak).
(Mr. STUPAK asked and was given permission to revise and extend his
remarks.)
Mr. STUPAK. Mr. Speaker, I rise today in strong opposition of H.R. 5.
Despite its name, this bill is a poor attempt to make health care more
efficient, accessible, affordable or timely.
It is not even a serious attempt to lower malpractice insurance
costs. I agree that Congress needs to comprehensively address medical
malpractice issues. I understand and sympathize with doctors facing
rising premiums. But this bill is not the answer.
Malpractice premiums are rising as costs in all segments of health
care are rising. And doctors, according to this USA Today article,
still pay less for malpractice insurance than they do for their rent.
And as the headline says here, ``Hype outpaces facts in medical
malpractice debates.''
I am opposed to this legislation for many reasons. First, it has
never been brought to the floor with any consideration by the Energy
and Commerce Committee or the Judiciary Committee. No hearings were
ever held. And there were no opportunities to amend this bill, to
include provisions that might actually help solve the problem of
premium increases.
The majority believes that the answer to lower medical malpractice
premiums is to institute an arbitrary $250,000 cap on noneconomic
damages in malpractice suits. However, large jury awards are not the
cause of the problem. Only 1.3 percent of all claims result in a
winning verdict. But the noneconomic caps hurt the children and the
low-income wage-earners the most.
[[Page H6993]]
Do we really want to create a capped system where the makers of
Vioxx, Accutane, Celebrex and any other drug are suddenly off the hook
because of a weak FDA, and the only thing to keep them remotely honest
is the trial system?
In addition, this legislation undermines the foundation of our court
system, trial by jury of our peers. If we trust juries to determine
whether a person is guilty or innocent and should die in a death
penalty case, surely we can trust juries to determine compensation for
victims in medical malpractice. The fact is that juries are cautious,
and patients only prevail in one of every five cases that ever go to
trial.
Let me tell you what the bill fails to do. It fails to address the
real driver of medical malpractice insurance costs, the insurance
industry itself.
The insurance industry investments tanked in the beginning of this
decade because of a weak stock market, and now the industry is
squeezing health care providers in an effort to protect their bottom
line. Why are we not looking at the insurance industry, including the
fact health insurers continue to be exempt from antitrust legislation?
In addition, the bill does not address the rising health insurance
costs. The Congressional Budget Office, our own CBO, found that even
large reductions in medical malpractice costs will have little effect
on health care costs.
Finally, the bill does nothing to address the two root causes of
medical lawsuits, medical errors and bad actors in the health care
system. It is a tragedy that medical errors account for almost 100,000
patient deaths each year, but Congress has done very little to address
this issue.
The bill also does nothing to address the fact that 5 percent of all
doctors are responsible for 54 percent of the malpractice claims paid.
Why do we allow health care providers to practice if they have a long
record of errors?
Mr. Speaker, I urge my colleagues to reject this legislation.
Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman
from Pennsylvania (Mr. Dent).
Mr. DENT. Mr. Speaker, as I mentioned a little earlier today, we
talked about the insurance industry and its role in this issue. But let
us be very clear. We need the structural reforms contained in the
HEALTH Act, H.R. 5, in order to continue to provide access to quality
care for our constituents and patients of the United States.
We also need to incent insurance companies to write policies in our
States, which they will not do indefinitely in this current
environment. And I remember a few years ago when people said, when the
crisis was acute in Pennsylvania, they said the problem is the
insurance companies invested money foolishly in the stock market. Well,
a lot of people lost money in the stock market a few years ago. At that
time the insurance companies in my State had about 8 to 10 percent of
their money in equities. Most of it was in investment-grade bonds,
which did rather well. But that really was not the cause of the
problem.
But let me tell you about the city of Philadelphia. In my State, many
people want to get their cases heard in a Philadelphia courtroom. Why?
Because the juries pay more. According to Jury Verdict Research, at
that time the average jury verdict award in Philadelphia was over a
million dollars, and the average everywhere else in the State was under
a half million. No wonder people wanted to go to Philadelphia.
In fact, President Bush even cited Philadelphia in a speech he made
in Scranton, Pennsylvania, where trauma centers were closing down. What
the President said there is that in the city of Philadelphia, there
were more jury awards, more dollars sent out by Philadelphia juries
than in the entire State of California, a State of 35 million people,
and Philadelphia a city of 1.5 million people.
How is that? The system is broken. I am in the Lehigh Valley of
Pennsylvania, 60 miles north of Philadelphia. One hospital, St. Luke's,
was hit with a $100 million jury verdict in a Philadelphia courtroom.
In a Philadelphia courtroom. It was an outrageous decision. It was
settled for something less than that, I will tell you that right now.
But it was an outrageous situation, could have bankrupted a major
institution that has been nationally recognized on many occasions for
clinical excellence. That is one of my problems.
We have also heard, too, that this is not a Federal problem. Does the
word Medicare mean anything to anyone around here? Medicare will save
billions of dollars over 10 years if we enact the reforms contained in
this legislation.
Furthermore, in many States again like mine in Pennsylvania, to amend
the constitution to permit caps on noneconomic damages literally is a
4- to 5-year process.
{time} 1530
But we cannot wait 4 to 5 years to solve this problem. That is why we
need the HEALTH Act now. We can do it much more quickly. It is
absolutely critical. A Band-Aid will not stop the bleeding. Structural
reforms are required.
As I mentioned a little earlier today, in my State, taxpayers,
particularly cigarette smokers, that is who is paying the bill for
doctors' premiums and hospitals' medical liability premiums, that is
who is paying the bill because no one wants to write insurance, and the
State-administered fund is broke. They will have to find hundreds of
millions of dollars more come January 1 to fix this problem.
The point is, structural reform is needed. Taxpayer bail-outs and
Band-Aids will not fix the problem. I commend the gentleman from
Georgia (Mr. Gingrey) for his leadership on this issue. A former
colleague, Jim Greenwood, I thank for his leadership in the last
session; and I thank the gentleman from California (Mr. Cox) as well. I
want to thank them for their leadership. I urge passage of H.R. 5.
The SPEAKER pro tempore (Mr. Shaw). The gentleman from Texas (Mr.
Smith) has 11\1/2\ minutes remaining. The gentlewoman from Colorado
(Ms. DeGette) has 9 minutes remaining.
Ms. DeGette. Mr. Speaker, I yield 2 minutes to the gentlewoman from
Ohio (Mrs. Jones).
(Mrs. JONES of Ohio asked and was given permission to revise and
extend her remarks.)
Mrs. JONES of Ohio. Mr. Speaker, I thank the gentlewoman for yielding
time. I rise today not only as a lawmaker but also as a former judge
who tried many malpractice cases in Cuyahoga County, Ohio, to voice my
disapproval of H.R. 5, the medical malpractice legislation that
irresponsibly limits what might be rightfully owed to an injured
plaintiff.
My previous experiences have taught me to respect the independence of
our court and the jury system. Our judicial system must remain
uninhibited in order to be effective. In direct contradiction to this
fundamental democratic principle, H.R. 5 limits the capacity of a jury
to deliver a fair verdict by capping the amount of noneconomic damages
at $250,000. I say that the facts of each case should be able to
control.
Thomas Jefferson once stated: ``I consider trial by jury as the only
anchor ever yet imagined by man, by which a government can be held to
the principles of its Constitution.'' By handcuffing the jury, this
Congress would be trampling on this democratic principle.
Let me say that we can sit here on the floor of this House and talk
about a number, $250,000. But it does not reach to a courtroom where we
have an injured plaintiff who has the ability to put evidence on in the
courtroom to say to the jury and to the judge that these are the facts
of our case that deserve to have the law applied to it and have the
jury render a verdict.
It would be unfair in my mind as we look at the drug company
advertisements. It used to be that the doctor would recommend the drug
to the patient. Anymore, you turn on the TV and the TV is telling the
patients, Get that purple pill; it will make a difference in your life.
Why should we allow drug companies who spend millions of dollars to
entice parties into getting a particular drug without knowing any
information to be let loose or let go for these reasons.
I say vote against H.R. 5, the medical malpractice legislation,
because it is not what we need to help our plaintiffs.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes.
Mr. Speaker, let me share with my colleagues the result of three
studies,
[[Page H6994]]
and let me emphasize that these studies are not about hypothetical
situations. They are not theoretical studies. They are studies of the
actual experiences of States that have enacted reforms similar to the
ones we have in this bill that we are talking about today.
According to the U.S. Department of Health and Human Services, States
with reasonable legal reforms including caps on noneconomic damages
enjoy access to more physicians per capita: ``We found that States with
caps on noneconomic damages experienced about 12 percent more
physicians per capita than the States without such a cap. Moreover, we
found that States with relatively high caps were less likely to
experience an increase in physician supply than States with lower
caps.''
Mr. Speaker, also, research shows that California reforms, which the
HEALTH Act is based on, have not resulted in unfair awards to deserving
victims. A recent comprehensive study of California's MICRA reforms by
the Rand Institute concluded that under MICRA, ``awards generally
remained quite large despite the imposition of the cap, and
California's reforms have not resulted in any disparate impact on women
or the elderly.''
Mr. Speaker, in another study, researchers at the Harvard School of
Public Health stated that ``we found no evidence that women or the
elderly were disparately impacted by the cap by noneconomic damages in
California under MICRA.''
Mr. Speaker, I reserve the balance of my time.
Ms. DeGETTE. Mr. Speaker, how much time remains?
The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) has 10
minutes remaining. The gentlewoman from Colorado (Ms. DeGette) has 7
minutes remaining.
Mr. SMITH of Texas. Mr. Speaker, I yield 4 minutes to the gentleman
from Georgia (Mr. Gingrey).
Mr. GINGREY. Mr. Speaker, I thank the gentleman for yielding me time.
Mr. Speaker, I think it is important that we make sure that all our
colleagues are clear on some of the issues that have been discussed
here today. I know there has been some hyperbole maybe on both sides of
the issue, and I want to be very clear.
This bill protects our patients, first and foremost, and gives them
an opportunity to have access to affordable health care and to the
specialist that they need and when they need them. It also helps our
physicians, our doctors be able to stay in practice when they have an
opportunity to have a stable medical malpractice insurance premium that
they have to pay.
Yes, there is no question, Mr. Speaker, that section 7 in regard to
punitive damages, that is applicable to our doctors as well as to
companies that make medical equipment. It also is applicable to drug
companies that provide us with life-saving drugs if they have done so
in a fashion that is not negligent and not deliberately intended to
harm a patient.
Here is an example, Mr. Speaker: things like time released infusion,
chemotherapy, treating cancer patients, insulin pumps for diabetics,
titanium hip replacements, artificial heart valves. If the makers of
these life-saving devices were subject to punitive damages every time
something through no fault of their own went wrong, we would be in the
situation that we were in a year and a half ago in regard to the flu
vaccine. Nobody wants to get involved in that business for the fear of
a lawsuit. And with the government setting prices on flu vaccines, the
profit margin to begin with was very limited.
So this section 7 is a very important provision in this bill, Mr.
Speaker. So again, I want my colleagues on both sides of the aisle to
understand that this is not a bad provision. This is a good provision.
Mr. Speaker, also one of the speakers in opposition, well, actually
several of the speakers in opposition, said that this bill has been
brought to us, we have had no hearings, we have had no opportunity, we
have had no voice. It is not true, Mr. Speaker.
This is the fourth time in 3 years that this exact same bill, H.R. 5,
has been dealt with on the floor of this House. It is the exact same
bill.
I joined this body in 2003. We dealt with it in 2003. We dealt with
it in 2004, and here we are with the exact same bill. Section 7 was in
the bill, the section in regard to punitive damages. Nothing has
changed. In fact, in the Committee on Energy and Commerce this
February, a hearing was held on medical liability and some 15 witnesses
were at that hearing, Mr. Speaker. So it is untrue to suggest that we
have not had hearings and they have not had an opportunity. They know
this bill.
It is a good bill. We have passed it three times. We are going to, in
a few minutes, pass it for a fourth time; and, hopefully, the other
body will do the same thing so we can get this to the President for his
signature and level this playing field once and for all.
Ms. DeGETTE. Mr. Speaker, I yield 2 minutes to the gentleman from
Washington (Mr. Inslee).
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Speaker, there are better ways to solve this problem
than to strip Americans of the right to trial by jury. Fundamentally,
this bill takes the right of trial by jury of your peers away from
Americans and gives that authority to politicians who have never heard
any of the evidence.
Take this case about a 4-year-old girl I know from Yakima,
Washington, named Nichole. Several years ago, she went in with a
urinary tract problem. The doctors put in a foley catheter. When you do
that, there is a balloon they put in your bladder that is inflated to
hold the catheter. This was traumatic to this 4-year-old girl. When
they went to deflate the catheter, it would not deflate. So they tried
to deflate it by sticking a steel wire up through her urethra to try to
puncture the balloon so they could pull the catheter out. They tried it
many times. This was traumatic to this young girl. It did not work.
So they finally had to inject a solvent up her urethra to dissolve
the rubber and it dissolved the rubber and it also dissolved part of
her bladder and severely burned her bladder because of the malfunction
of a negligently designed and manufactured foley catheter.
Now, who is better to make a decision for that 4-year-old girl about
what is justice? Teachers, truck drivers, insurance salesmen sitting in
a jury who have heard the evidence and who have looked at Nichole and
understand the future dysfunction she may have and the trauma she had,
or 435 politicians who are clueless about that specific case?
Where is the wisdom from the Creator that these politicians are
vested in to tell us what Nichole went through? Nobody knows except
maybe someone who was at that trial.
This is moving authority from jurors, citizens, the people who are
sitting up in the gallery right here and taking it away from you and
putting it in the pockets, first of Members of Congress, through the
lobbyists for the drug companies and the medical companies. And by the
way you, know what happened because of Nichole's case? That company
cleaned up its act, and it started a new quality-control mechanism so
that we will not have future Nicholes, because we had a medical
negligence system that protected the Nicholes of this world.
There is a problem. This is not the best way to solve it. Respect
America, democracy, and our jurors.
announcement by the speaker pro tempore
The SPEAKER pro tempore. Members are to refrain from referring to
persons in the gallery.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 3 minutes.
Mr. Speaker, I just want to remind my colleague who just spoke that
our separation of powers provides that all aspects of the government
are limited to some extent. If juries or judges give outrageous awards,
like any other exercise of government power, they should be subject to
reasonable checks and balances.
Mr. Speaker, I also want to remind my colleagues that unnecessary and
frivolous litigation is threatening the viability of the life-saving
drug industry. To encourage the development of life-saving drugs, the
HEALTH Act contains a safe harbor from punitive damages from a
defendant whose drugs or medical product comply with rigorous rules or
regulations. The provision is manifestly fair.
Why should a drug manufacturer be found guilty of malicious conduct
when
[[Page H6995]]
all they did was sell a product approved as safe under the
comprehensive regulations of the FDA? Claims for unlimited economic
damages and reasonable noneconomic damages could still go forward under
the HEALTH Act. The safe harbor does not apply if relevant information
was misrepresented or withheld from the FDA.
Eight States have, in fact, provided an FDA regulatory compliance
defense against damages just like this bill. Those States are Arizona,
Colorado, Illinois, New Jersey, North Dakota, Ohio, Oregon, and Utah.
Opposing this bill jeopardizes those State laws. And the Members who
are from those States might want to remember that.
Mr. Speaker, the evidence is overwhelming. Without legal reform,
patients will continue to go without needed doctors: women will
continue to deliver babies on the side of the road because the nearest
OB/GYN is hundreds of miles away; parents will continue to be forced to
watch as their child with brain injury suffers because lawsuits forced
the nearest neurosurgeon to stop practicing.
Mr. Speaker, we need to pass this legislation.
Mr. Speaker, I reserve the balance of my time.
The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) has
3\1/2\ minutes remaining and has the right to close. The gentlewoman
from Colorado (Ms. DeGette) has 5 minutes remaining.
{time} 1545
Ms. DeGETTE. Mr. Speaker, I yield for the purpose of making a
unanimous consent request to the gentleman from Rhode Island (Mr.
Kennedy).
(Mr. KENNEDY of Rhode Island asked and was given permission to revise
and extend his remarks.)
Mr. KENNEDY of Rhode Island. Mr. Speaker, I rise to ask why we are
not doing more to ensure fewer mistakes are made in the first place.
Mr. Speaker, nobody disputes that malpractice premiums are heavily
impacting many physicians. I think very few of us would dispute that
there are frivolous claims filed. All of the justifications for this
bill about losing physicians in high-risk practices are real concerns.
So why is it that we are spending this time debating a bill that
won't address this problem? Repeatedly dramatizing the problem doesn't
make this bill a solution. This bill does nothing to prevent frivolous
lawsuits. It doesn't rein in the bad actors, in penalizes those who are
the most grievously injured.
Experience shows that the link between awards or settlements and
premiums is tenuous at best. An exhaustive study published this month
showed that premiums have gone up 120 percent over the last 5 years
while claims were flat. The GAO has found no evidence that caps on
damages hold premiums down.
But even if this bill could work--it would not, Mr. Speaker, but even
if it could--we are completely missing the real issue.
We are fighting about how or how not to compensate the victims of
mistakes and hold negligent providers accountable. Shouldn't we be
talking instead about how to ensure fewer mistakes in the first place?
We are talking about closing the barn door but the horse is already
galloping across the field.
Mr. Speaker, Sorrel King can teach us all a lesson. Several years
ago, her 18-month-old daughter Josie suffered severe burns and was
rushed to the ICU at Johns Hopkins Hospital.
She got the world-class care you would expect and they saved her
life. She was going home in just a few days. And then communications
were botched, orders were lost, and Josie was administered a drug she
was not supposed to get, over Sorrel's objection. And even then,
further warning signs were missed.
Josie King wound up dying of dehydration in one of our Nation's
finest hospitals. Johns Hopkins settled with Sorrel and her family.
And--here is where we can learn something--Sorrel turned around and
gave the money back to Hopkins to create a new patient safety program.
Mr. Speaker, like Sorrel, we need to spend less effort apportioning
blame and more effort making our system safer and better. Hundreds of
thousands of our constituents die in hospitals every year not in spite
of the care they get, but because of it. These are mostly systems
problems, not the result of individual negligence.
Last year I introduced the Josie King Act to begin transforming
health care delivery so that the system itself is driving better
quality at lower costs. It laid out a roadmap to bringing health care
into the information age and promoted the development of uniform
quality metrics so that providers, the public, and purchasers have a
clearer picture of which providers get the best outcomes for patients.
Now we are finally beginning to see attention to these priorities,
which, unlike the current debate, have bipartisan support. We won't
reach agreement about capping damages to patients who are hurt, but we
can agree that the system should hurt fewer people.
We can pass strong health IT legislation this year, like the bill Mr.
Murphy from Pennsylvania and I introduced or the one that was reported
out of committee in the other body.
We can pass legislation this year to begin linking reimbursements to
outcomes and quality. I know we have strong leadership on both sides of
the aisle, in several committees and in the House leadership, for both
of those things.
Until we begin aligning incentives in health care so that providers
who go the extra mile to make their patients better or, even better,
keep them healthy--people are going to keep getting hurt.
Until we begin aligning incentives in health care so that the tools
of the information age can help make care more accurate and more
efficient.
Mr. Speaker, I agree with my friends on other side that physicians
need lower malpractice rates. I also believe that the best way to get
fewer lawsuits is to get fewer mistakes. Let's keep our eyes on the
ball and make our health care system better, safer, and more efficient
and make everyone better off.
Ms. DeGETTE. Mr. Speaker, I am honored to yield 1 minute to the
gentlewoman from California (Ms. Pelosi), the distinguished minority
leader.
Ms. PELOSI. Mr. Speaker, I thank the gentlewoman from Colorado (Ms.
DeGette) for yielding me this time and for her leadership on issues
that relate to the health and well-being of the American people.
I also want to salute the two distinguished ranking members, first
the gentleman from Michigan (Mr. Conyers) of the Committee on the
Judiciary for his leadership on this important legislation; and I
especially want to acknowledge the gentleman from Michigan (Mr.
Dingell), who this year celebrates his 50th anniversary in Congress,
and every day of those 50 years he has worked to improve access to
quality health care for all Americans. But particularly on this 40th
anniversary of Medicare and Medicaid, it is worth noting the
contributions of the gentleman from Michigan in providing health care
security for millions of Americans and for upholding the fundamental
principle that Democrats believe in: Health care is a right, not a
privilege.
Mr. Speaker, I rise in strong opposition to the Republican medical
malpractice bill. Let me begin with this simple fact: Under President
Bush, 5.2 million more Americans have joined the ranks of the
uninsured. Today, 45 million Americans have no health insurance. The
bill before us does not, nor does any other Republican bill during this
so-called Health Week, provide health insurance to one single American.
This bill is not about solving the urgent health insurance crisis
that affects millions of American families, nor is it about improving
our health care system, containing costs, or even lowering medical
malpractice insurance premiums. Instead, the Republican medical
malpractice bill, first and foremost, is a windfall to the big drug
companies at the expense of Americans who have been injured or killed
by harmful and unsafe drugs. Once again, protecting the big drug
companies is at the top of the Republican agenda.
The Republicans have attempted to hide the true purpose and the real
reason for this bill. It contains a special liability waiver for drug
companies for the types of injuries caused by drugs. Under this
Republican bill, when Americans are injured, or even killed, by drugs
that have been negligently marketed, they will not be able to obtain
justice and hold drug companies wholly accountable.
The Republican leadership, beholden to the pharmaceutical companies,
refused to allow amendments that would strike this unjust provision. As
with the Medicare prescription drug bill, where Republicans prohibited
the government from negotiating for low prices for seniors, and forbade
Americans from purchasing lower-priced drugs from Canada, this is yet
another example of the Republicans being the handmaidens of the
pharmaceutical industry.
[[Page H6996]]
The Republican medical malpractice bill is an extreme bill that is an
injustice to consumers, and it unconscionably rewards irresponsible
drug companies. If we are to remain a Nation that seeks justice for
all, the special liability waiver for drug companies must be removed.
Unfortunately, the Republicans refused to permit the consideration of
the Emanuel-Berry amendment to remove this unjust and reprehensible
provision.
Apart from pandering to drug companies, this bill utterly fails to
achieve its stated purpose. It will not lower medical malpractice
insurance premiums, nor does it address the real cause. The real cause
of high malpractice premiums is not the payouts for malpractice claims.
Former Missouri State Insurance Commissioner Jay Angoff issued a recent
study showing the amount collected in premiums by major medical
malpractice insurers has doubled. The amount received in premiums has
doubled, while the claims paid out have remained flat, resulting in
excessive profits and excessive reserve surpluses.
The Angoff study found that insurance companies are charging far more
for malpractice insurance than actual payments or estimated future
payments warrant. This finding is also supported by numerous studies
that document that in States that have enacted caps or damage awards,
they have not seen their premiums for malpractice insurance lowered.
Rather than addressing insurance companies' refusal to lower rates,
the Republican bill instead interferes with the rights of injured
Americans to be compensated for their injuries and have their claims
heard by a jury of their peers. If enacted, the cap on damages would
severely harm women, children, and the elderly who have been injured.
Unfortunately, the Republican leadership did not allow the Democratic
substitutes by the gentleman from Michigan (Mr. Conyers) and the
gentleman from Michigan (Mr. Dingell) to be offered.
The Democratic substitute supports sensible approaches that permit
only valid claims to go forward. More significantly, the Democratic
substitute addresses real causes for premium increases and offers real
solutions for the doctors. It repeals the antitrust exemption for
insurance companies. It provides targeted assistance to help physicians
stay in crisis areas.
We all respect the magnificent contribution that doctors provide to
our society. It is not only a profession, it is a vocation, and we
literally could not live without them. So it is with great respect for
them that I say they deserve better than this bill, which purports to
help them.
President Harry Truman said it so well: ``The Democratic party stands
for the people. The Republican party stands, and always has stood, for
special interests.'' That was true almost 60 years ago when he said it,
and it is certainly true today. Let us uphold the public interest. Let
us stand up to the big drug and insurance companies, and let us oppose
this unjust bill.
Mr. SMITH of Texas. Mr. Speaker, I reserve the balance of my time, as
we are prepared to close on this side.
Ms. DeGETTE. Mr. Speaker, I yield myself 1 minute.
Mr. Speaker, the gentleman from Texas says that this bill does not
preempt State law. In fact, the bill includes a sweeping preemption of
State law which is designed to override State laws that protect
consumers and patients while keeping in place State laws that favor
doctors, hospitals, nursing homes, HMOs, pharmaceuticals and medical
device manufacturers, and other health care defendants.
In fact, the only laws that this bill does not supersede are the ones
that protect those groups, and that is at the great risk to patients.
Mr. Speaker, I yield the balance of my time to the gentleman from
California (Mr. Waxman).
Mr. WAXMAN. Mr. Speaker, there are a number of very important reasons
to oppose this bill, but I want to focus on one of the most egregious
parts of the legislation that has nothing to do with medical
malpractice. Under this legislation, if a drug or medical device
manufacturer sells a dangerous product that causes harm to a consumer,
so long as that product received FDA approval prior to being marketed,
a court would be prohibited from awarding punitive damages against that
manufacturer. This marks a dramatic change in current law by
transforming FDA product approval into a shield against liability.
Time and again we have seen that the FDA approval process cannot or
does not guarantee the safety of drugs and other medical products.
Every day our concerns increase about the adequacy of the FDA's
postmarket safety programs. And we have seen numerous instances in
which despite receiving FDA approval, drugs and medical devices, have
been pulled from the market because of the emergence of severe dangers
associated with their use.
Mr. Speaker, we have not given the FDA the tools or the ability to
approve a drug so that all the things that would happen after that
approval will not occur, such as the failure of the company that
manufactures it to make sure they follow their own safety standards; or
that new risks that are not known at the time of the approval will
never arise.
We have to rely on the civil justice system as an additional layer of
protection for American citizens. In court, consumers harmed by
dangerous medical products are given the opportunity to hold the
pharmaceutical companies accountable for their wrongdoing. Confronted
with the looming threat of liability, pharmaceutical and medical device
companies have every incentive to ensure that their products are safe
before they are marketed, and that they continue to be safe once on the
market.
We have seen mounting evidence that drug and device companies can
withhold key data from physicians, fail to conduct needed safety
studies, and carry out misleading advertisement campaigns even when
they know of the risks of their products. Yet instead of safeguarding
an individual's right to hold a drug and device company accountable for
this kind of conduct, this legislation offers sweeping protection for
those companies.
A company might mislead doctors about the safety of its drug and
continue to aggressively promote the use of a dangerous drug in spite
of studies raising questions as to its safety. Under this legislation,
such company would have a shield from liability for punitive damages
for this behavior. This is an issue that should be decided on the
evidence and in court.
If we fail to preserve the right of Americans to hold manufacturers
of dangerous medical products accountable, we will fail to uphold our
responsibility to American consumers to protect against unsafe products
and medical devices.
Mr. Speaker, I urge opposition to the legislation.
Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, first let me say to my colleagues who are not usually
concerned about States rights that if they will look at section 11 of
the bill, they will find the bill respects the right of any State to
set a cap of any amount, be it higher or lower, than the caps in the
bill itself.
Mr. Speaker, the HEALTH Act is the only proven legislative solution
to the current medical liability insurance crisis. According to the
Congressional Budget Office, under this bill, ``Premiums for medical
malpractice insurance ultimately would be an average of 25 percent to
30 percent below what they would be under current law.''
H.R. 5 allows unlimited awards of economic damages. These include
past and future medical expenses, lost or past and future earnings, the
cost of obtaining domestic services, loss of employment, and loss of
business or employment opportunities. Deserving victims can be awarded
tens of millions of dollars in damages, as we have already seen in the
States that have similar reforms to those contained in this bill.
Mr. Speaker, the Harvard Medical Practice Study found that over half
of the filed medical professional liability claims they studied were
brought by plaintiffs who suffered either no injuries at all or, if
they did, such injuries were not caused by the health care providers,
but rather by the underlying disease.
H.R. 5 is modeled on California's legal reforms. Those reforms have
resulted in California's medical liability premiums increasing at a
rate that is only one-third the rate of those of other States.
Mr. Speaker, we need to act, and we need to act now. The nonpartisan
Annals of Medicine predicts that the current doctor shortage could get
worse, and we could lose 20 percent of needed doctors in the coming
years. Let us protect patients everywhere. Let us pass the HEALTH Act.
[[Page H6997]]
Mr. AL GREEN of Texas. Mr. Speaker, I want to express my concern
regarding the passage of H.R. 5, the Help Efficient, Accessible, Low-
cost, Timely Healthcare (HEALTH) Act of 2005 also known as the medical
malpractice bill. Although some believe that ``reforming'' medical
malpractice litigation will ultimately serve as a solution for
skyrocketing healthcare premiums, it is my belief that this legislation
is both misguided and harmful to the American people.
One of the most contentious provisions within H.R. 5 is a $250,000
cap on awards for non-economic damages. Placing such a cap allows
corporations the opportunity to build into their bottom line a certain
amount of liability. Currently, we have a judicial system that creates
a fine balance between free corporate enterprise viability and consumer
protection. The medical malpractice bill will disrupt this equilibrium
in the name of reducing ``frivolous'' lawsuits without taking into
account the implications for those making legitimate claims. This bill
has the potential to reduce the incentive for corporations to remedy
defective products,and instead may allow those entities to easily
assume the loss incurred by ultimately accounting for the cost
liability, a sum inevitably less than their sometimes lucrative
profits.
I respect the efforts of all of my colleagues to address the concerns
of their constituencies. However, I would be remiss in that duty if I
did not oppose legislation that erodes consumer protection and the
ability of the courts to determine appropriate punitive measures for
negligent defendants.
Mr. ABERCROMBIE. Mr. Speaker, I rise today to support efforts to
address the medical malpractice problem we have in this country today.
There can be no doubt that doctors are paying excruciatingly high
premiums and as a result, patients,and our medical system are
suffering. However, I do not believe that H.R. 5 will do anything to
solve this problem. As many of my colleagues have pointed out, this
legislation will only lower expenses for the insurance industry and
limit compensation for those victims who need it the most.
Later in this Congress, I will be introducing legislation to offer an
alternative to the idea of caps on compensation. Instead of limiting
victim awards, my proposal is to limit the involvement of the insurance
industry in the medical malpractice system. Physicians will no longer
have to worry about the cost of their medical malpractice insurance.
The practice of defensive medicine and its toll on our medical system
would be eliminated.
In addition, my proposal will ensure that the small number of doctors
who are responsible for a large number of malpractice suits, will be
critically examined. According to the National Practitioner Data Bank,
11% of physicians are responsible for half of all malpractice payments
made between September 1, 1990 and December 31, 2003.
Yesterday, the House of Representatives passed S. 544, an important
first step in addressing one of the root causes to the situation we
face today. The Patient Safety and Quality Improvement Act will create
a voluntary reporting system for errors and ``near misses.'' This
information can then be analyzed so that better medical practices can
be established.
Mr. Speaker, it is time to address the other root causes of rising
medical malpractice premiums. Caps are an old and ineffective solution.
My proposal will be a substantive and constructive reform for the
entire system. I urge my colleagues to keep an open mind in trying to
solve the medical malpractice problems we face today.
Mr. HONDA. Mr. Speaker, for the fourth time in the 5 years I have
been a member of the United States Congress, I will be opposing a
flawed Republican bill which would limit damage awards to patients
injured by medical malpractice. While Republicans claim their measure
would reduce insurance costs for doctors by discouraging frivolous
lawsuits--which they blame for driving up insurance premiums and
reducing access to health care for patients--the Republicans
legislation completely ignores the rate-setting process followed by the
insurance industry. Furthermore, a 2002 study by the Congressional
Budget Office found that the effect of even a very large reduction in
malpractice costs would have a small effect on individual health care
premiums.
This bill broadly defines ``medical malpractice action'' to protect
HMOs, insurance companies, nursing homes and drug and device
manufactures for a broad range of liabilities, including suits by
physicians against those companies. Furthermore, the bill caps non-
economic awards for pain and suffering of $250,000, and punitive
damages at $250,000 or twice economic damages, whichever is greater.
All this measure really does is place legal obstacles on patients
injured by wrongful conduct. Under this bill, individuals face time
limits that would require an injured person to file health care
lawsuits no later than three years after the date of the injury or one
year after discovering the alleged malpractice, whichever occurs first.
In addition, there are limits to attorney contingency fees, which would
potentially force inured persons, faced with medical bills and lost
wages, to finance lawsuits they otherwise cannot afford.
Support of tort reform say large million-dollar damage awards in
medical liability suits are the reason that the cost of malpractice
premium insurance are so high. I believe premium increases represent
only one part of the problem facing many doctors throughout the nation
and these increases are not necessary linked to damage awards. Even
some insurance industry insiders say that recent increases in
malpractice premiums have nothing to do with lawsuits or jury awards,
and that tort reform will not reduce premiums. Rather, increases have
been driven by the insurance underwriting cycle and insurance
companies' bad investments.
Mr. Speaker, rather than truly deal with a crisis faced by medical
doctors, this bill is simply crafted to benefit the insurance industry
at the expense of victims of medical malpractice. Instead of fruitless
passing this flawed bill for the 4th time in less than five years, we
should be working hard to provide health care to the 45 million
Americans who are uninsured today.
Mr. BOUSTANY. Mr. Speaker, I rise in support of H.R. 5, the HEALTH
Act of 2005.
The medical liability crisis have been growing over the last decade
and is rapidly developing into a patient access crisis as well.
Frivolous lawsuits are overwhelming our legal system and wasting
billions of dollars each year.
In 2004, more than 70 percent of medical liability claims did not
result in payments to plaintiffs and only 1.1 percent of claims
resulted in a plaintiff's verdict.
In cases where the defendant prevailed at trial, the average defense
costs were $87,720 illustrating the high cost of unfounded claims.
Frivolous lawsuits further drive up costs by encouraging physicians
to practice defensive medicine ordering additional tests that are not
necessary to provide quality care. Physicians are also less likely to
try new and innovative medical treatments.
The resulting increase in medical malpractice premiums are
threatening access to quality care by forcing physicians to move their
practices, retire early, and limit services. The situation is
particularly critical for ob-gyns. From 2003 to 2004, increases in
rates for ob-gyns were as high at 66.9%. Illinois premiums rose from
$138,031 to $230,428.
H.R. 5, the HEALTH Act, will increase patient access to health care
services and provide improvised medical care by reducing the excessive
burden the liability system place on the health care delivery system.
This bill: Ensures that patients receive adequate compensation while
limiting non-economic damages to $250,000. Sets a statute of
limitations of three years after the date of manifestation of injury or
one year after the claimant discovers the injury to ensure timely
resolution; allows the introduction of collateral source benefits and
the amount paid to secure such benefits as evidence; authorizes the
award of punitive damages only where: (1) it is proven by clear and
convincing evidence that a person acted with malicious intent to injure
the claimant or deliberately failed to avoid unnecessary injury the
claimant was substantially certain to suffer, and (2) compensatory
damages are awarded. Prescribed qualifications for expert witnesses.
States including Louisiana and California that have instituted their
own liability reforms that include caps on non-economic damages have
shown proven success and as a result, these states are not facing a
medical liability crisis.
I urge my colleagues to support the HEALTH Act and ensure patient
access to quality medical care.
Ms. LEE. Mr. Speaker, I rise today in opposition to H.R. 5.
Proponents of this legislation make numerous false claims.
They claim that ``tort reform'' will magically reduce doctors'
skyrocketing malpractice premiums.
But the truth is that even a spokesman for the American Insurance
Association couldn't promise price reductions with tort reform.
Supporters also claim that capping non-economic damages will make
malpractice insurance more affordable for doctors.
But the truth is that the example set by my home state of
California's MICRA law proves this isn't the case. Enacted in 1975, it
wasn't until after 1988, when California passed insurance reform under
Proposition 103 that malpractice insurance rates began to stabilize.
Proponents even claim that this bill will protect patients' rights.
But the truth is that H.R. 5 would strip away the rights of patients,
especially women, seniors, children, and lower income families.
But Mr. Speaker, let's give credit where credit is due. This bill
does protect someone:
[[Page H6998]]
It protects HMOs, the insurance industry and the pharmaceutical
companies.
Mr. Speaker, instead of false claims and gifts to HMOs, we need a
bill like the Conyers-Dingell substitute that was not made in order.
Unlike H.R. 5, the Conyers-Dingell bill is balanced and would
eliminate frivolous lawsuits, increase competition, and reduce costs,
without sacrificing crucial protections.
Let's be real, Mr. Speaker. This bill is yet another example that
shows where Republican priorities lie--with their contributors--HMOs
and insurance companies.
Patients and people deserve more.
I urge my colleagues to reject the false claims and vote ``no'' on
H.R. 5.
Mr. BLUMENAUER. Mr. Speaker, there are two ways of dealing with the
medical malpractice problem. One is to take the approach that the House
Republican leadership has chosen for years; a narrowly drawn proposal
that appeases their partisan supporters but doesn't solve the problem.
As I said last year, the rationale was weak and there was little
evidence it would succeed. Instead, it may do more harm to the health
care community and doctors. Most important, because it is so narrow and
partisan, it's very unlikely to become law. Pushing a political
solution is the approach that has been tried repeatedly and is what
Oregon voters rejected again at the polls last year.
The other approach is to work cooperatively, bringing people to the
table to make progress. This is what appears to be happening in Oregon
in the aftermath of the last defeat. In Oregon, doctors, hospitals, and
other healthcare professionals are working with consumer advocates,
trial lawyers, and people from government to fashion a solution that is
acceptable; to make progress building on cooperation and trust.
Between the two approaches it's clear that the narrow, partisan, and
unbalanced approach is not only questionable on its merits, but is a
political dead end. I see no reason to change my longstanding
opposition to both the narrow solution and to the approach that created
it. Given the nature of the crisis of healthcare in the United States,
the problems will only get worse; politicizing them will only put off
the day when real progress is achieved.
Mr. HOLT. Mr. Speaker, I rise in opposition to H.R. 5. This
legislation will not reduce medical liability premiums, and it unfairly
and arbitrarily discriminates against those most severely injured by
medical errors.
I have consistently heard from physicians in Central New Jersey that
the rising cost of medical malpractice insurance represents a growing
crisis. The rising premiums have compelled many physicians to leave the
state or leave medicine altogether. My wife is a general practice
physician, so I fully appreciate the gravity of the situation facing
many doctors. The rising cost of insurance poses obvious dangers for
access to care, particularly for populations most in need.
Unfortunately, the Republican leadership has brought to the floor a
bill that does not reduce premiums for physicians and imposes an
arbitrary cap on damages for the most severely injured victims of
malpractice or negligence.
Capping non-economic damages at $250,000 for patients who have won a
medical malpractice tort will not result in lower insurance premiums
for physicians. Just listen to what the insurance industry itself has
said. ``We have not promised price reductions with tort reform,'' said
Dennis Kelly, an American Insurance Association spokesman in the
Chicago Tribune. In fact, over the past few years, payouts for medical
malpractice cases have remained flat while premiums have continued to
rise, in some cases doubling.
Because of insurance companies over-charging doctors for insurance,
the fifteen largest insurers have accumulated a surplus that is double
what they actually need to pay claims. We should be debating how to
most effectively rebate this surplus to the doctors, rather than
looking for ways to reward them for the squeeze that they are executing
on our healthcare system. The insurance industry is gouging medical
doctors and is trying to use patients as a scapegoat.
Imposing a cap on damages inherently affects the patients most
severely injured by malpractice or negligence. Setting the cap at
$250,000 is an insult to all those who have had their lives permanently
changed by medical errors. The figure is lifted directly from the 1975
California MICRA law. Adjusted for inflation, this amount would be
close to $1 million in 2005 dollars. $250,000 does not come close to
compensating for loss of life or permanent disability or disfigurement.
I am disappointed that, for the third time in three years, the Rules
Committee has eliminated any opportunity to amend the legislation. I am
particularly disappointed that the Rules Committee disallowed
substitute legislation by Ranking Members John Conyers and John
Dingell. Their bill would weed out frivolous lawsuits, require
insurance companies to pass savings on to health care providers, and
provide targeted assistance to the physicians and communities who need
it the most. That Congress is not permitted even to consider this
legislation as an alternative demonstrates that the bill we have before
us cannot survive on its own merits.
As liability insurance premiums continue to rise for physicians
across the country, the Republican leadership continues to prescribe
the same tired and ineffective legislation. For good reason, this bill
has not survived the legislative process for the past three years, yet
we are once again debating whether to enrich insurance companies at the
expense of victims of medical malpractice and negligence.
We need a comprehensive, fair, and effective approach to lowering
insurance premiums for physicians. The legislation we have before us is
none of the above. I encourage my colleagues to oppose H.R. 5.
Ms. DeLAURO. Mr. Speaker, we can all agree on one thing--the
skyrocketing cost of malpractice insurance impacts every doctor and,
indeed, every American. But contrary to what this majority has repeated
time and again, the reason for these soaring costs has nothing to do
with frivolous lawsuits.
Indeed, a new report by the Center for Justice and Democracy found
that in the last 4 years, the 15 largest malpractice insurers increased
premiums by 120 percent--more than doubling premiums. And what about
all those frivolous lawsuits supposedly driving those costs? The same
report found that claims during that same period rose by just 5.7
percent. In my State of Connecticut, the contrast between claims and
rates is even starker, with premiums for our 3 largest malpractice
insurers shooting up 213 percent over the last 4 years while claims
have increased only 1.6 percent.
So, let's call this situation what it is, Mr. Speaker--insurance
companies gouging doctors. To inflate their own profits, insurance
companies are putting doctors at risk, destabilizing our health care
industry and driving up costs for everyone.
And what is this majority's response? Granting authority to State
insurance commissioners to order refunds for doctors when excessive
rates are imposed? Requiring insurance companies to get approval before
rate increases? Demanding that States set standards for actuaries to
calculate rates?
No. Their response: ``blame the patients.'' Limit damages. Drive a
wedge between the parties being hurt the most by rising malpractice
costs--doctors and patients. At all costs, it seems they are saying, do
not hold the insurance industry's feet to the fire on this issue.
Mr. Speaker, this debate ought to be about helping doctors--about
doing something meaningful to ensure they can afford to continue
practicing medicine. Instead, this bill would insulate insurance
companies from having to follow any kind of responsible guidelines
regarding how malpractice insurance rates are set. And, as such, this
bill will do nothing to actually drive those rates down--an admission
the insurance industry itself has acknowledged.
None of this is to say that we do not need to crack down on frivolous
lawsuits--indeed, last year I voted to penalize lawyers who file
frivolous suits with a tough ``3 strikes and you're out'' rule. And
today, Democrats wanted to offer a substitute, which would have taken a
comprehensive approach to the malpractice insurance crisis. Our bill
would have prevented frivolous lawsuits but also required insurance
companies to pass some of their savings on to health care providers, as
well as providing assistance to the physicians and communities who need
it the most.
We had also hoped to strike a provision of this bill that would have
protected manufacturers such as the makers of Vioxx from liability. But
again, Republicans prevented that amendment from coming to the floor
today for consideration. And little wonder--I would not want to justify
why Republicans were protecting the makers of a drug found to be
responsible for thousands of deaths either.
Mr. Speaker, in the face of premium increases that are 20 times
faster than malpractice claims increases--frivolous or otherwise--this
legislation is irresponsible, plain and simple. I urge my colleagues to
do right by doctors and families by opposing this bill. Let's come back
and pass a bill that will actually address the malpractice insurance
crisis.
Mrs. BIGGERT. Mr. Speaker, I rise today in strong support of H.R. 5,
the HEALTH Act.
Will County, Illinois, part of which I represent, no longer has any
practicing neurosurgeons. A recent survey found that 11 percent of OB/
GYNs no longer practice obstetrics in my home State of Illinois. And
more than half of OB/GYNs in the State are considering dropping their
obstetrics practice entirely in the next 2 years due to medical
liability concerns.
Women and children are the first to suffer in a crisis like this. As
a mother and a grandmother, I don't want to see pregnant women driving
to another State because they can't
[[Page H6999]]
find an OB/GYN in their own area. I don't want to see injured children
transported miles away from their homes because there are no pediatric
neurosurgeons left to treat head injuries. And I don't want to see
health insurance premiums climb so high that employers can no longer
afford to provide benefits to their workers. We need reform and we need
it now.
Mr. ETHERIDGE. Mr. Speaker, I rise today in opposition to H.R. 5, the
Republican medical malpractice bill, and the process by which it is
being debated in this House.
Today, the House will vote on H.R. 5, a bill to impose caps on
damages that may be awarded for medical malpractice, defective
products, and other health related wrongdoings. Like many Members of
this House, I am concerned about the rising cost of medical malpractice
insurance and its impact on physicians and their patients, but H.R 5 is
the wrong medicine for this national problem.
I oppose H.R. 5 because it will not reduce medical malpractice
premiums. What's more, it protects manufacturers of faulty
pharmaceutical devices and medical equipment from product liability
actions, and overturns North Carolina State law. H.R. 5 also limits the
ability of injured persons to bring suits against pharmaceutical
companies, HMOs, and nursing homes, thus setting a dangerous precedent
allowing these entities to escape the law in even the most severe cases
of neglect and abuse. Finally, H.R. 5 undermines North Carolina's
patient protection statutes, which are some of the strongest in the
Nation.
My colleagues, Mr. Dingell and Mr. Conyers, have drafted an
alternative amendment to H.R 5. This alternative will help courts weed
out frivolous lawsuits without restricting the rights of legitimate
claims, repeal the Federal anti-trust exemption for medical malpractice
insurance companies, thereby increasing competition and lowering
premiums, and provide targeted assistance directly to physicians,
hospitals, and communities in medical malpractice crisis areas.
Finally, the alternative establishes an independent advisory commission
to examine and recommend long-term solutions to this important issue.
Unfortunately the Republican Leadership has denied Representatives
Dingell and Conyers the opportunity to offer this alternative.
Mr. Speaker, the issue of medical malpractice insurance is an
important one. H.R. 5 will without a doubt harm America's patients. I
urge all of my colleagues to vote against H.R. 5 and to support the
motion to recommit the bill.
Mr. UDALL of Colorado. Mr. Speaker, I'm reluctantly voting against
H.R. 5, which would limit medical malpractice awards.
I am not opposed to considering legislation that would do something
to respond to real problems. But I do not think this bill merits that
description.
In fact, I think the vote today has more to do with politics than
with policy--and if I had any doubts on that point, they ended when the
Republican leadership refused to permit any amendments at all to be
considered. Stifling debate is not the way to develop good policy.
As in the past, the bill's supporters argue that unless the tort laws
are changed, doctors will not be able to afford malpractice insurance
and so will give up providing medical care. And, again, opponents say
the bill would do nothing to affect insurance rates.
I think we're beating a dead horse. Both sides have dug in and aren't
willing to compromise. In the meantime, we aren't doing anything to
reform our medical liability system and we aren't doing anything to
make health care more affordable and accessible for Americans.
Our system is inherently adversarial and we've continued this finger-
pointing game and done nothing to improve patient safety and health
care access, which is what we're really talking about here.
I think we need a system that is non-punitive and encourages openness
and improvement so that doctors can report medical errors without fear
of being sued. This will help us understand medical errors and improve
procedures and patient safety. Fewer medical errors will result in
fewer medical malpractice suits, which in turn will help keep
malpractice insurance rates and health care premiums down.
That's why I have supported legislation to create a voluntary medical
error reporting system under which patient safety organizations, on a
confidential basis, would receive information on reported errors for
analysis. They would then be expected to develop and disseminate
evidence-based information to help providers implement changes in
practice patterns that help to prevent future medical errors.
In addition to that, I think we should explore ideas like alternate
dispute resolution, no-fault systems, and medical courts.
I also want to make it clear that I am not opposed in principle to
capping damages. That has been done in Colorado and some other states,
and I think there is evidence indicating that it can help keep health
care costs down and keeps doctors accessible. However, I think this
bill's low and arbitrary limits on damages will hurt those at the
bottom of the income scale the most. Also, I don't think we should be
shielding large and powerful HMOs and drug companies from liability.
So, I cannot support the bill as it stands.
Mr. Speaker, ultimately this issue is about health care access and
patient safety. If we aren't going to compromise, I hope we'd start
thinking outside the box on how to end the logjam. I offer these ideas
as a way to get there, because we aren't going to get there from where
we are today.
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I rise today in
opposition to H.R. 5, the Medical Malpractice bill.
H.R. 5 may have been conceived with good intentions, but it is a bad
bill. It is a particularly bad bill for low income Americans.
If a patient is injured by a caregiver due to medical malpractice,
and that patient sues, it should be up to a judge or a jury--not the
U.S. Congress, to decide how much compensation should be awarded.
Injured patients who don't get their fair compensation will suffer.
They will suffer in two ways. First of all, it's hard to put a blanket
price on damages resulting in life or limb.
Secondly, if the compensation is not sufficient, what will happen to
the disabled patient when the money runs out? Who, then, will pay for
their long-term care, or for the children of someone permanently
disabled or even killed?
I'll tell you who will pay for them: the American taxpayer. Those
children and disabled people will enroll in federal programs to help
them exist day by day. American taxpayers pay for those programs.
Mr. Speaker, this bill won't do anything to lower the cost of health
care.
This legislation is good intentions that will have bad consequences.
I ask my colleagues to consider very carefully who will end up paying
at the end of the day.
The American taxpayers--you and I, not the care providers at fault--
will end up paying for the damages incurred from medical malpractice.
Mr. GENE GREEN of Texas. Mr. Speaker, I rise in opposition to H.R. 5,
legislation to limit non-economic damages that victims may seek when
injured by medical malpractice. My primary objection to this bill stems
from the Congress imposing its will on the states regarding an issue
that rests squarely within State jurisdiction.
The states are responsible for licensing medical professionals and
for regulating the insurance industry. In fact, the states have had
jurisdiction over medical malpractice for more than 200 years, and it
should continue to be that way. This legislation would unnecessarily
preempt the laws of states that have taken measures to address this
issue. At least 30 states have enacted laws with regard to non-economic
damages, so it is unconscionable that anyone would argue that the
medical malpractice issue is trapped in a regulatory vacuum.
In 2003, the State of Texas saw a need for action on medical
malpractice and enacted a cap on non-economic damages. Having served in
the Texas State Legislature, I know first-hand that state legislatures
are best positioned to determine whether and how to address the medical
malpractice situation in their individual states. The State of Virginia
enacted a different cap that best balances the needs of consumers,
physicians and health care institutions in that particular state. The
situation is different in each state, and a Washington-knows-best
approach ignores the hard work and tough decisions that individual
states have made.
On a substantive level, I oppose this legislation based on two
provisions with significant flaws. First, the bill includes a firm
$250,000 cap on non-economic damages without providing for inflation
adjustment in future years. While that figure mirrors California's
MICRA law, it is important to recognize that California's cap has not
been adjusted for inflation in approximately 30 years. Further,
California's law was crafted during a time when a $250,000 cap would
have sufficed for all but the most egregious jury awards--which, I
might add, the judge has the discretion to overturn. That is certainly
not the case in the 21st century, and I object to the Congress placing
a price on pain and suffering. A cap on non-economic damages would
create a one-size-fits-all figure for each and every case of medical
malpractice. Members of Congress do not hear the details of each
medical malpractice case. Members of juries do, which is why they are
best equipped to determine the appropriate non-economic damages based
on the facts of each case.
This legislation also contains a dangerous provision that would
provide drug companies and device manufacturers with an affirmative
defense against punitive damages as long as their products had FDA
approval. This provision presupposes that FDA approval is an air-tight
process whose integrity need not--and legally cannot--be questioned.
Considering
[[Page H7000]]
the FDA's recent track record with regard to Vioxx and other
pharmaceuticals that have been removed from the pharmacy shelves, it is
clear that the integrity of the FDA approval process has been
compromised. Until some serious reforms are implemented at the FDA, the
FDA stamp of approval should not provide any company with an
affirmative defense against punitive damages. Such a provision would
only provide drug and device manufacturers with even less of an
incentive to report known adverse events before their products go to
market and ensure that their products are as safe as possible. Given
these concerns, I would urge my colleagues to oppose this bill and
leave this issue to the states, which have clear jurisdiction, as well
as the ability and willingness to handle this delicate issue.
Mr. WELDON of Florida. Mr. Speaker, I rise to express my strong
support of H.R. 5 and my interest in seeing that one significant
concern is addressed, should this bill move through the Senate.
As a practicing physician I know how important this bill is to
ensuring that Americans have access to good medical care. For too long
too many limited resources have been misdirected away from patient care
and have instead been spent to unnecessary malpractice awards and the
practice of defensive medicine. Defensive medicine offers little in
terms of better patient outcomes, but it adds billions of dollars to
the cost of medical care. I know this not only because studies show
this is the case, but I used to practice defensive medicine every day.
This bill makes sure that there is fair treatment for those
individuals who do suffer serious adverse medical outcomes, while
ensuring that our legal system is not overwhelmed with frivolous
lawsuits.
A serious concern I have with the bill, and an issue I have raised
with the chairman and others, is how it treats liability reform for
manufacturers of drugs and vaccines. With respect to pharmaceuticals we
are often unable to recognize all adverse reactions until we have post-
marketing information. This post-marketing safety data, such as in
cases like Vioxx, is provided to FDA on a voluntary basis by the
manufacturers. I agree with the intent of the bill which is to ensure
that Americans have greater access to potentially live saving
pharmaceuticals. However, it is equally important that we fully examine
the implications of such provisions on safety and the willingness of
manufacturers to come forward with adverse information.
I am also concerned that H.R. 5 offers significant liability
protection for vaccine manufacturers, while failing to fix the broken
vaccine injury compensation program (VICP). It is critically important
that these two not be separated. The VICP is very broken and it would
be wrong to cut off access to the courts without addressing the serious
deficiencies that exist in the compensation program today. As it
operates today, the VICP has essentially imported the tort system into
the program. That was not how the program was designed to operate. If
both the liability problem and the VICP deficiencies are not fixed
fairly, then our nation's immunization program will suffer serious
problems and parents could increasingly reject childhood immunizations
for their children.
Mr. DINGELL. Mr. Speaker, I rise in strong opposition to H.R. 5. The
Republican leaders of this House have denied us our right to offer an
alternative to the over-broad and ill-conceived legislation that is
before us today and have bypassed both committees of jurisdiction. Why
are they so afraid?
Are they afraid we will demonstrate that their bill will create
excessive litigation as opposed to reducing it? H.R. 5 is ambiguously
drafted, leaving its readers to surmise what its provisions could
possibly mean. Federal and State courts would take years trying to sort
it all out.
Are they afraid we will discuss how their legislation shields HMOs,
insurance companies, and drug manufacturers from all sorts of
skullduggery? The proponents of this legislation offer no evidence that
these privileged industries need additional protections, yet H.R. 5
grants them a special status under the law that is unprecedented.
Are they afraid we will show how this unprecedented immunity bath for
their favorite industries will hurt the rights of injured patients?
There is a human cost to this legislation that we must not forget.
Are they afraid we will tell how H.R. 5 would hurt women, seniors,
and low-income families by limiting non-economic damages to $250,000?
Because a large part of economic damages is an individual's income,
such a system would place a higher value on the lives of CEO's. My
friends, every human life is worth more than $250,000.
Unfortunately, my Republican colleagues are quite determined to move
quickly and harshly. Their legislation reaches well beyond malpractice
and offers no guarantees of assistance to providers and communities.
Physicians and patients are asked to cross their fingers and hope that
some of the benefits given to large corporations will trickle down to
them. And women, seniors, and low-income families are left to pay the
human cost of these corporate benefits. It is wrong.
But the rising cost of malpractice insurance is a real problem--
requiring careful, balanced, and targeted legislation. Regrettably my
colleagues will not have the opportunity to vote for the balanced
package that my friend from Michigan, Mr. Conyers, and I have crafted.
Perhaps their greatest fear is that you would prefer a bill that truly
helps physicians, hospitals and nurses, while protecting the rights of
patients and doctors over HMOs. I urge you to support the motion to
recommit and oppose final passage of H.R. 5.
Mr. STARK. Mr. Speaker, we have been told that weapons of mass
destruction required an invasion of Iraq, that ketchup is a vegetable,
and that global warming is a vast, left-wing conspiracy. Now, the great
minds of the Republican Party want us to believe that lawyers are to
blame for skyrocketing medical malpractice insurance premiums.
Respected insurance, health care, and legal experts all show that
insurance companies, with their record surpluses, are to blame for
rising premiums. Who are you going to believe? I cast my vote with the
experts, and against H.R. 5, the so-called Help Efficient, Accessible,
Low-cost, Timely Healthcare (HEALTH) Act of 2005.
This bill arbitrarily caps payments for pain and suffering at
$250,000 and extends liability protection not only to doctors, but to
HMOs, nursing homes and manufacturers of drugs and medical devices.
Furthermore, the President and other Republican proponents claim that
this bill will halt skyrocketing medical costs. That's hogwash. Even
the non-partisan Congressional Budget Office has found that the this
bill would have a negligible effect on health care spending, ultimately
reducing insurance premiums by less than one-half of one percent.
Ineffective legislation is one thing, but this bill is legislative
malpractice. It would mean that a child permanently disabled by an
incompetent doctor would receive only $250,000 to be compensated for a
lifetime of pain and the inability to lead a full life. If this bill
were enacted, nursing homes that abuse our seniors, HMOs that deny
critical care, and drug companies that market dangerous drugs like
Vioxx can take your life for a guaranteed low price set by their
friends in Congress.
The implication of limiting damages and attorneys' fees is that
greedy lawyers and their irresponsible clients are somehow faking
medical errors or blaming natural medical problems on innocent doctors.
Given that medical errors are the eighth-leading cause of death in this
country, exceeding car accidents, breast cancer, and AIDS, that
suggestion is off base. Anyone who's ever been at the bedside of
someone in the hospital and received 12 different answers from 12
different care providers about treatment instructions knows the risk of
a serious medical error.
This bill does nothing to reduce medical errors, and it won't reduce
malpractice premiums. Between 2000 and 2004, claims payments rose by
less than 6% while insurers' net premiums rose by 120%. The money isn't
going to lawyers--it is padding the pockets of wealthy insurance
companies, and they have no intention of ending the windfall even if
this bill passes.
I support the Democratic bill, which Republican leaders won't allow
to come up for a vote. That bill reforms the insurance industry--breaks
up insurance monopolies and gives doctors the right to challenge
premium increases--and has sensible tort reform without blocking
compensation for injured patients. Unlike the Republican bill, any
savings by insurance companies would be required to actually reduce
malpractice insurance premiums and 50% of punitive damage payments
would go to the Agency for Healthcare Research and Quality to reduce
medical errors.
If high premiums and medical errors are the problem, the Democratic
bill seems like a logical solution. So logical in fact, so tempting
even to my Republican colleagues, that their leadership won't even
allow them to vote on the Democratic alternative. I urge my colleagues
to reject this sham and force this House to consider real legislation
to solve this national crisis.
Mr. RYUN of Kansas. Mr. Speaker, I rise today in support of H.R. 5,
the next step in the ongoing struggle to reform medical malpractice
liability. Skyrocketing insurance premiums are debilitating our
Nation's health care
[[Page H7001]]
delivery system and liability insurers are either leaving the market or
raising rates to excessive levels. In turn, more physicians, hospitals,
and other health care providers are severely limiting their practices,
moving to other states, or simply not providing care. Without a change,
the exodus of these providers from the practice of medicine will
continue, and patients will find it increasingly difficult to obtain
needed health care.
H.R. 5 would help to lower the costs associated with health care
coverage by encouraging the speedy resolution of claims, limiting
lawyers' fees, and imposing caps on non-economic damages.
I urge the House to once again pass medical malpractice reform to
help lower the cost of quality health care and make it accessible to
more Americans.
Mr. CARDOZA. Mr. Speaker, I rise today to share my concerns about
H.R. 5 and to urge my colleagues to support the Democratic Motion to
Recommit.
I think we all agree that skyrocketing medical malpractice premiums
are spiraling out of control and demand our immediate attention.
As a former member of the California Legislature, I voted to uphold
MICRA on three separate occasions and I think that doctors everywhere
deserve the same protection. MICRA is a model for federal reform
because it has produced a stable, competitive medical liability
insurance market while ensuring prompt and fair payments to those
injured and in need.
While I am pleased that H.R. 5 adopts the basic framework of MICRA, I
am deeply concerned about other elements of the bill that provide cover
to special interests, including liability protection to HMOs,
pharmaceutical manufacturers and medical device manufacturers.
Now is not the time to give greater protections to pharmaceutical
companies that put unsafe drugs like Vioxx on the market. Such
protections have nothing to do with the liability insurance crisis
facing doctors and should be stripped from this bill.
I am also concerned that the caps California established in 1975
under MICRA were never indexed to inflation: To provide the same level
of compensation in today's dollars, the cap would have to equal
$800,000. Put another way, the $250,000 MICRA cap has decreased in
value since 1975 to approximately $70,000.
With that in mind, I believe we should adjust the $250,000 cap to
reflect its current value. As we all know, health care costs--including
hospital charges and medical fees--have risen dramatically since 1975.
If we are going to model our national law after the 1975 MICRA model, I
suggest that we start by using realistic figures that reflect 2005
dollars.
Despite these concerns, in 2003 and again last year, I voted for H.R.
5 with the expectation that improvements would be made in conference
with the Senate.
Unfortunately, that did not happen, and today we are considering a
bill under a Rule that blocked a number of reasonable amendments,
including a substitute offered by my colleague from Michigan, the
ranking member on the Judiciary Committee.
While I plan to support this legislation today, my continued support
is predicated on substantial changes as the Senate attempts to align it
more closely to California's MICRA law. If this happens, I will support
the conference report.
However, I--as well as a number of physicians I know--will oppose a
bill that provides inappropriate protection to drug companies, HMOs and
medical device makers.
I hope that my colleagues in the House leadership will take these
concerns into mind as debate moves forward on this critically important
issue.
Mr. MANZULLO. Mr. Speaker, the United States has been blessed with
the best system of medicine in the world. But we are having a crisis of
access. This problem is not a case of whether a patient has health
insurance. You may not be able to find a doctor to treat you.
The headlines are replete with stories of women having to drive
several hours because they cannot find a doctor to deliver their baby.
If you are in a car accident in southern Illinois and need a
neurosurgeon, you will be airlifted to another State because there are
no neurosurgeons left to treat you.
Litigation has escalated and awards have skyrocketed. Multi-million
dollar court decisions and jury awards have left doctors with medical
liability premiums increase 40 to 50 percent per year.
Doctors in certain fields of high-risk fields of medicine can expect
to be sued at least once in their career.
As a result, doctors are retiring or leaving the practice of
medicine. Emergency rooms and rural facilities have closed. Many other
doctors are moving to States that have taken action to cap jury awards,
which stabilizes malpractice costs.
I know of one OB-GYN in Illinois who left her practice to go back to
being a pharmacist where she could earn more money and not worry about
malpractice premiums. She explained that after paying malpractice
insurance, she and another physician made $50,000. A third doctor made
$60,000 and the fourth doctor made $70,000. Their office manager made
more than all of them: $75,000.
Thirty years ago, California passed comprehensive medical liability
reform. According to the Department of Health and Human Services,
States that have limited noneconomic damages have seen premium
increases by less than 20 percent. States without limits on noneconomic
damages have seen premiums increase on average of 45 percent.
This is quantifiable evidence that medical liability reform works. I
urge my colleagues to vote for H.R. 5.
Ms. ESHOO. Mr. Speaker, for 4 years we've been debating what to do
about the malpractice premium crisis. We clearly have a problem but
what's not so clear is what the solution should be.
I'm a Californian, and in my State, we have a law titled the Medical
Injury Compensation Reform Act, MICRA, that has been mentioned many
times on the floor. This law was passed by a Democratic legislature and
signed by a Democratic governor in 1975. It's been on the books ever
since, without a single change. MICRA has contributed to stabilizing
premiums in California, but without other reforms, we would still be
facing the same skyrocketing increases as other States.
The Help Efficient, Accessible, Low-cost, Timely Healthcare, HEALTH,
Act of 2005 has been described as a Federal version of MICRA. I
respectfully dispute this assertion.
The HEALTH Act places a $250,000 cap on noneconomic damages for suits
against physicians, insurers, HMOs and nursing homes as well as drug
and medical device manufacturers. MICRA limits that cap solely to
physicians. The Health Act also places a cap on punitive damages. MICRA
does not.
One of the reasons MICRA has worked is because it's prescribed in its
scope. If we're to get to the heart of exorbitant medical malpractice
insurance, we have to focus our efforts on those who truly need our
help. I'm concerned that extending these provisions to those outside of
the physician community may have a harmful effect on patient care and
on our legal system.
Patients must also be fairly compensated for any wrongs that befall
them, but this bill also uses MICRA's cap level of $250,000, which has
not been updated for inflation since the law was passed in California
in 1975. When adjusted for inflation, $250,000 from 1975 is now worth
only approximately $68,000.
This bill also does not contain any mechanism for studying the
insurance industry and its role in the premium crisis. A review of the
insurance industry is critical to understanding the problem and
possible solutions. While MICRA was enacted in 1975, premiums in
California continued to rise. MICRA did not address, collectively, the
problem of rapidly escalating premiums faced by California doctors.
Only because California voters enacted stringent insurance rate reform
after tort reforms failed did doctor's premiums fall.
In 1988, California enacted insurance reform law, Proposition 103,
which has saved physicians and other medical providers hundreds of
millions of dollars by regulating the premiums insurance companies are
allowed to charge. Premiums dropped and stabilized in the years
following passage of Proposition 103. I urge my colleagues to
accurately look to the experience in California. My State enacted both
tort limits and insurance reform.
This is a multi-faceted problem. If we are to truly help physicians,
we have to look at this issue from all angles and implement solutions
across all levels.
For these reasons, I urge my colleagues to oppose the HEALTH Act.
Mr. BACA. Mr. Speaker, I rise in opposition to H.R. 5, the Republican
Medical malpractice bill.
This bill is bad medicine for American consumers. It is a bitter pill
for our seniors, our children, and the middle class.
The Republican majority will stop at nothing to prevent access to the
legal system for those who are hurt. First they said that all they
wanted to do was limit class action lawsuits to Federal courts. Now
that they have succeeded, they are back again, to take more rights away
from American patients and consumers.
Mr. Speaker, the majority will distort the facts, but the American
people will not be deceived.
The bill places a $250,000 cap on pain-and-suffering awards in
medical malpractice lawsuits. $250,000. Is that what a lifetime of pain
and suffering at the hands of malpractice is worth?
Would you want your mother, grandfather or child to be in that
situation? As the bills pile up, and the Republicans say, sorry, but we
have sold out to the special interests?
The bill makes it much harder for patients injured by medical errors
to seek redress. It shortens the time for patients to prove they were
hurt by malpractice. It gives legal immunity to drug makers, those same
companies
[[Page H7002]]
that have already killed and maimed people with products that were
prematurely released on the market.
Many of us are alarmed at the skyrocketing cost of medical care,
including patients, who are the consumers. However, medical malpractice
is not the reason for these increasing costs. It is medical
mismanagement and corporate greed.
The Washington Post had an article this past weekend about the health
care system for our seniors. The frightening truth? Some health care
providers deliberately, or indifferently, provide bad medical care, so
that they can increase the costs of treatment, while patients become
even sicker. Wounds become infected, equipment is covered with dust,
and sterile techniques are not used.
It sounds like the plot of a bad medical thriller, or medical
practice in some remote corner of the globe, but it is happening, right
here in America, to your father or mother, grandmother or grandfather.
So, I say, stop picking on the legal system, which fights for the
rights of the poor, the sick, the elderly, and the injured.
Many of the rights that consumers enjoy today are the result of path-
breaking legal decisions and the lawyers who were willing to stand up
and fight.
The Republicans would like to take us back to a darker time, when
corporations ruled and the underserved had no rights. We must say, no;
we must oppose this bad medicine. Enough is enough. We must oppose this
bad bill.
Mr. SCOTT of Georgia. Mr. Speaker, one of the greatest challenges
facing our Nation's health care system today is the medical malpractice
insurance crisis. My State of Georgia is one of 18 States that have the
highest, most significant medical malpractice insurance premium costs,
and it is costing our Georgia and our entire country dearly. Because
when our health care industry is in danger, we are all threatened.
Who among us is not a patient, who among us does not need and deserve
quality medical care? At its heart, this crisis is a patient care
issue. Every one of us wants ourselves and our loved ones to receive
the highest quality health care possible.
We have to address the issue of medical malpractice insurance and the
extremely high cost of health care. In 2000, Georgia physicians paid
more than $92 million to cover jury awards. That amount was the 11th
highest in the Nation despite the fact that Georgia ranks 38th in total
number of physicians in the United States.
Forty percent of the State's hospitals faced premium increases of 50
percent or more in 2002. St. Paul, the State's second largest insurance
carrier, stopped selling medical liability insurance last year.
Remaining insurers have reportedly raised rates for some specialties by
70 percent or greater. Some emergency room physicians, OB-GYNs and
radiologists have not yet found a new carrier.
Our health care system is suffering immensely, but some say that this
moment in time will pass, that this crisis does not warrant taking
serious action. But study after study proves them wrong.
Earlier this year, the Georgia Board for Physician Workforce released
a study showing the effects of the medical liability crisis on access
to health care for Georgia's patients. For example, the study shows
that 17.8 percent of physicians, more than 2,800 physicians in Georgia,
are expected to limit the scope of their practices which is by far the
largest effect of the medical liability insurance crisis on access to
medical care.
These physicians are expected to stop providing high-risk procedures
in their practices during the next year in order to limit their
liability risk. Nearly 1 in 3 obstetrician/gynecologists and 1 in 5
family practitioners reported plans to stop providing high-risk
procedures, indicating that access to obstetrical care may be
significantly reduced during the next year as a result of the medical
liability insurance crisis.
In addition, nearly 11 percent or 1,750 physicians reported that they
have stopped or plan to stop providing emergency room services. Six
hundred and thirty physicians plan to stop practicing medicine
altogether or leave the state because of high medical malpractice
insurance rates. About 13 percent of doctors reported that they had
difficulty finding malpractice insurance coverage.
In fact, at one particular Georgia hospital, the hospital could not
give credentials to a surgeon and add that physician to its staff
because the surgeon could not afford to buy medical malpractice
insurance. In another instance, an obstetrician-gynecologist had to
close his Georgia practice and work for a health care agency because he
could not afford to buy medical malpractice insurance.
What happens to the patients that his hospital could have treated but
now it cannot because it does not have the surgeons that it needs? What
happens to the mothers who need a doctor to provide pre- and post-natal
health care but cannot find one because doctors are leaving the
profession due to the high cost of medical malpractice care?
In addition, Georgia is heavily dependent on other states to train
physicians. Approximately 70 percent of participating physicians in
Georgia completed training in another State. High costs of medical
malpractice liability insurance may reduce the attractiveness of
Georgia as a location for medical practice. High professional liability
insurance costs are a significant financial problem for teaching
hospitals, reducing the already limited funding available for faculty,
residents, and other medical education costs.
Even more upsetting, the high cost of medical malpractice insurance
for doctors and hospitals disproportionately affects seniors, minority
and low-income patients. The physicians and hospitals who depend on
Medicare reimbursements and who serve the over 44 million uninsured
Americans every day cannot afford to pay higher insurance premiums. We
need to ensure that these communities have access to quality health
care and the best physicians or the health disparity that currently
exists will continue to deepen and create a two-tier health care
system.
But it is not only medical care in the present that is threatened,
but also into the future. Many of the medical schools in our State are
saying now that many of students are having second thoughts about even
coming into the medical profession.
These statistics prove that Georgia's doctors cannot wait. More and
more each day, good, principled health care providers are confronting
the possibility of being unable to treat their patients because of out-
of-control medical malpractice insurance premiums. There is no question
that Congress must act, and act immediately.
I support H.R. 5 because doctors, hospitals, and the health care
industry are caught in the middle between insurance companies and
lawyers. Doctors are being squeezed by their medical malpractice
insurance premiums and by the high amounts being awarded to injured
patients. Doctors need to see results; they need to know that if this
bill becomes law that their insurance premiums will go down. The
message must reach the insurance companies that premiums have to go
down so that the medical profession can survive and access to health
care is improved. The health care industry must have relief and this
bill, although not the final answer, is the first step in addressing
the problems that affect doctors and the health care industry.
We must help doctors, physicians and dentists, hospitals, other
health care providers, and, ultimately, American patients who are
suffering in untold ways. Immeasurable damage is occurring in our
Nation's health care delivery system because of the high cost of
medical malpractice insurance. With the passage of this bill, the House
of Representatives will send a clear and salient message to the
insurance industry, and that message is: Bring down the cost of medical
malpractice insurance for physicians and hospitals.
Mr. LARSON of Connecticut. Mr. Speaker, I rise today in opposition to
H.R. 5, the so-called HEALTH Care Act of 2005. Quite simply, the
problems that we should be addressing today are burdensome malpractice
insurance rates, patient safety, and access to health care. This bill
addresses none of these. In another attempt to cede power from States
to the Federal Government, this bill would impose nationwide limits on
the compensation injured persons can receive in medical malpractice
cases.
We have all heard the stories of doctors leaving their practices
because they cannot afford their malpractice insurance rates. For the
6-year period from 1998 through 2003, medical malpractice insurance
premiums in my State of Connecticut increased, depending on the
insurance company, between 37 percent and 241 percent for internal
medicare, 35 percent and 185 percent for general surgery, and 45
percent and 128 percent for obstetrics/gynecology. During that same
period of time, the consumer price index only rose 13 percent and the
medical consumer price index rose 24 percent. I certainly cannot
imagine running a business where one of my expenses was that out of
line with the rest of my income and expenses. How can we expect doctors
to do that when they provide such an important service
[[Page H7003]]
to us all? The end result is the loss of good doctors practicing and
diminished access to health care. The bill we are debating today does
not address the underlying problem and has many flaws.
First, it would remove authority on the issue of tort reform from
States, where it has traditionally resided, and preempt various areas
of State law, including important consumer protections. Each State has
its own issues with regard to medical malpractice and tort law and a
one-size-fits-all solution imposed by the Federal Government is not the
answer.
Second, it would restrict the ability of injured patients to be
compensated for their injuries. An inflexible $250,000 cap on
noneconomic damages would punish victims of malpractice and cause
significant inequalities in compensation for women, children, seniors,
and lower-income workers. A woman who loses a pregnancy or her
fertility is not judged to have high economic value, but juries can
recognize the human value of her losses. A child with no job or income
will obviously have a limited economic value, but juries can recognize
the human value of his future. Even with the same injuries, a corporate
CEO would receive a much larger economic damage award than a minimum-
wage worker or a mother who stays at home to raise her kids, but a jury
can recognize the human value of their pain and suffering.
My final objection to this legislation is the manner in which it was
brought to the floor. It was never debated in committee and was
reported to the floor with a closed rule. In fact, the Rules Committee
has rejected 67 amendments to this legislation over the past 3 years.
This is the third time the House has voted on this legislation in the
past 3 years and the third time it has been the wrong answer for
doctors and patients. This is just another example of the majority
bringing the same legislation to the floor year after year knowing that
it will go nowhere because it is the wrong answer for Americans.
Legislation offered by the ranking members of the Judiciary Committee
and the Energy and Commerce Committee, Mr. Conyers and Mr. Dingell,
have been ignored as well as legislation offered by the gentlewoman
from South Dakota, Ms. Herseth. Americans deserve to have all of these
bills debated side by each.
Mr. Speaker, I conclude by urging my colleagues to join me in
opposing H.R. 5 and working on real solutions for reasonable
malpractice rates, improved patient safety, and accessible health care.
Mr. JEFFERSON. Mr. Speaker, H.R. 5--the so-called HEALTH Act of
2005--is anything but healthy.
If there was even the remotest possibility that H.R. 5 could help get
efficient, accessible, low-cost, timely health care to the American
people, it would probably get 435 votes in this House.
However, H.R. 5 does absolutely nothing to achieve the admirable
goals embodied in its misleading name. It does absolutely nothing to
address the specific problem it is purported to fix: skyrocketing
medical malpractice insurance premiums.
Let me be perfectly clear. I am in complete agreement with this
bill's supposed and stated purpose: to help get efficient, accessible,
low-cost, timely health care to all Americans. I agree that one of the
obstacles to low-cost, accessible health care is outrageous medical
malpractice liability insurance premiums charged to physicians and
other health care providers throughout our Nation. I also agree that
some litigation strategies contribute to the escalating costs of our
Nation's health care by encouraging providers to order tests,
procedures and treatments that may not be medically necessary. I agree
with the supporters of H.R. 5 that high malpractice insurance premiums
charged by carriers have led some physicians to abandon high-risk
specialties and patients.
I ask you though to look at the legislation before us. H.R. 5
contains about 4,000 words. In those 4,000 words, the word ``premium''
appears only once; the word ``insurance'' appears only 5 times; and the
word ``cost'' appears 14 times, the vast majority in the definitions
and not the operative clauses of the bill.
I ask you to consider whether H.R. 5 is really about skyrocketing
medical malpractice insurance premiums as its proponents claim. I have
looked very carefully at this bill, and, after much reflection, have
reached the only reasonable conclusion: It is not.
I stand here today because someone needs to stand up for American
physicians. Someone needs to stand up for the American health care
system.
The proponents of H.R. 5 tell us medical malpractice insurance
premiums are skyrocketing out of control. There is no dispute that
malpractice insurance premiums are increasing at an alarming rate. We
agree on that.
There is no question that medical malpractice premiums are escalating
across the country, particularly for physicians in high-risk
specialties and certain geographic centers. In some cases, premiums
have increased so dramatically that physicians have relocated their
practices, reduced their services, or retired early. While there is
little doubt that something must be done to alleviate this crisis, H.R.
5 is no solution.
Our friends on the other side of the aisle believe that if you limit
the amount that insurance carriers have to pay for legitimate claims,
then insurance rates will fall.
But I ask you to consider the fact that the American Insurance
Association--the American Insurance Association--has repeatedly and
specifically denied that tort reform will result in premium savings.
Sherman Joyce, the president of the American Tort Reform Association,
has stated, ``We wouldn't tell you or anyone that the reason to pass
tort reform would be to reduce insurance rates.''
So, by the insurance industry's own admission, H.R. 5 will not stem
the tide of rising medical malpractice insurance rates. Nevertheless,
our friends on the other side would have us believe that limiting the
exposure of insurance carriers is a panacea. It is not.
H.R. 5 is a hoax. It is a sham, and our friends on the other side
know it. It is a fraud on the American medical establishment by
insurance carriers who want to limit their exposure but will not commit
to reducing premiums.
Please read the bill. H.R. 5 has absolutely no provision requiring
the reduction of medical malpractice premiums, despite the fact that
our friends believe that it is these high premiums that are crippling
the health care system. Nevertheless, there is not a single word in
this bill that directly calls for reductions in premiums: zero, zilch,
nada, nothing, and they know it. It is a scam. H.R. 5 is absolutely
nothing more than a boon, a windfall for the insurance industry.
Our friends on the other side tell us that damage caps will solve the
premium crisis. Mr. Speaker, I ask that you consider the fact that in
States that have enacted caps, the medical malpractice insurance
premiums are higher than in States that have no caps. The carriers do
not want us to know that.
In fact, in California--the State the other side holds up as a
shining example of the benefits of legislation like H.R. 5--the average
premium is $27,570, fully 8 percent higher than the average of all
States that have no caps on noneconomic damages.
Recently, the American Medical Association issued a list of States
that it concluded were in crisis due to exploding medical malpractice
insurance rates. Five of those States have caps on noneconomic damages
like the one proposed in H.R. 5. Yet, Mr. Speaker, they are still in
crisis.
One of those States is Florida, where, despite having caps of just
the kind proposed by H.R. 5, obstetricians and gynecologists pay the
highest premiums in the Nation for medical malpractice insurance, some
in excess of $200,000 per year. Florida has caps, and Florida has a
crisis. So, Mr. Speaker, damage caps alone are not the solution to the
problem.
If you look further at the California example, it becomes clear that
damage caps alone are not an effective premium-reduction measure. In
the 12 years after California passed MICRA, medical malpractice
premiums rose 190 percent. Only after California passed Proposition
103--actual insurance reform--did medical malpractice premiums
stabilize. Since California passed insurance reform--not medical
malpractice reform--its medical malpractice premiums have been more
stable than in most States.
Mr. Speaker, the lesson to be learned from California is that
measures like H.R. 5 do not reduce medical malpractice insurance
premiums. The facts simply do not bear it out.
Nevertheless, Mr. Speaker, our friends on the other side insist that
one-size-fits-all approach of H.R. 5 is the last and best cure for the
crisis of escalating malpractice insurance rates.
Some of our colleagues are, like me, very deeply concerned about
rising malpractice insurance rates. Some of our colleagues have
expressed an inclination to vote for this bill in order to get the ball
rolling, in order to take a first step toward solving the premium
crisis. But I want to be very clear: If H.R. 5 is our first step, as
the saying goes, it's a doozy. It is a step on the backs of doctors,
hospitals and patients to help out greedy insurance carriers. It is
certainly a step in the wrong direction. H.R. 5--as the best evidence
proves--is an ill-conceived, ill-advised bill that will not--let me
repeat--will not solve the problem. This bill helps insurance
companies--period.
Recent articles in newspapers across the country show in clear and
compelling ways that this crisis is as complex as it is serious.
``Malpractice litigation is only part of the cause of the huge
increases in insurance premiums. The insurance industry's pricing and
accounting practices . . . play [at least] as big a role.''
The insurance company patrons of our friends on the other side want
to hide behind what they consider out-of-control jury awards. Again,
Mr. Speaker, the facts simply do not support this claim.
[[Page H7004]]
Over the past few years, many physicians have been hit with medical
liability premium increases of 25 to 400 percent. Yet, according to The
Journal of Health Affairs, during the past decade, malpractice payouts
have grown approximately 6.2 percent per year. That's almost exactly
the rate of medical inflation: an average of 6.7 percent between 1990
and 2004.
Moreover, contrary to the claims of proponents of H.R. 5, juries are
not overly sympathetic to plaintiffs, as evidenced by the rate at which
physicians prevail in medical malpractice suits. Dr. Barry Manuel,
chairman and CEO of ProMutual Group, one of the Nation's leading
malpractice insurance carriers, reported in 2001 that ``we continue to
close 60 percent of all claims without payment, and of those cases we
are forced to defend in court, we prevail in 90 percent.'' In addition,
many of the leading scholars studying the problem have concluded that
despite conventional wisdom, juries in fact often favor physicians.
Neil Vidmar, a professor at Duke University School of Law and a
leading scholar in the field, states unequivocally that ``the assertion
that jurors decide cases out of sympathy for injured plaintiffs rather
than the legal merits of the case . . . have been made about
malpractice juries in the United States since at least the nineteenth
century. Yet, research shows no support for these claims.''
So, Mr. Speaker, one begins to wonder what has caused such
extraordinary increases on medical malpractice insurance premiums
during the past few years.
Well, investment losses, like those of average Americans, and a weak
economy have made a greater dent in the bottom lines of insurance
companies than malpractice payouts.
The difference between insurance companies and average Americans is
that most of us can't give ourselves a raise to cover our losses. A
medical malpractice insurance company can--and does. It alone controls
the premium rates it charges our country's doctors. I think you can
guess what malpractice carriers have done in response to the general
economic climate in the past few years.
The truth is that medical malpractice insurance carriers are asking
doctors, hospitals and patients to pay for underperforming investments.
It is as simple as that. They know it. We have asked the insurance
carriers to commit to reducing premiums in this bill. They will not do
it. They will not even talk about it. That is because they have
absolutely no intention of reducing medical malpractice insurance
premiums.
The bottom line is that H.R. 5 is a jackpot for insurance carriers,
and it is the doctors, hospitals and patients that are going to pay for
it.
Mr. Speaker, I want to talk for just a minute about the cap on
noneconomic damages. If H.R. 5 becomes law, we will be speaking with a
loud and clear voice that the injuries victims of medical malpractice
suffer are valued in direct relation to how much money those victims
have. The unfortunate consequence of this legislation is that--
regardless of the severity of your injury, regardless of how long you
suffer, regardless of its effect on even the most basic functions of
your life, the things we take for granted every day, regardless of
whether you can ever play with your children again, regardless of
whether you can ever hug your grandchildren again, regardless even
whether you or your child or your wife or mother die due to medical
malpractice--no one's injury is ever worth more than $250,000.
Our friends on the other side of the aisle like to equate
``noneconomic damages'' with ``pain and suffering.'' But ``pain and
suffering'' is a misleading label. What is capped is recovery for
disability and disfigurement, among other things, not just ``pain and
suffering.'' H.R. 5 lumps together everything that is not ``economic''
and calls it ``noneconomic''--subject to a $250,000 cap that the bill
does not even adjust for inflation.
Our friends on the other side of the aisle go to great lengths to
emphasize that H.R. 5 in no way limits economic damages as long as they
are objectively quantifiable monetary damages. In other words, if a
surgeon loses his hand and is unable to perform surgery again, the
injury he will suffer is greater than that suffered by a carpenter who
loses his hand due to medical malpractice and is never again able to do
his job. Why? Well, under H.R. 5 the answer is simple: The surgeon
makes more money, so his economic damages are greater. Not to worry,
they tell us, both of them can get up to $250,000 in addition to soothe
their wounds.
The same is true in the case of an injury suffered by a working
mother when compared to a mother working inside the home. Do our
friends on the other side of the aisle believe that those women's
husbands or children will understand the difference?
At many jobs, the loss of a leg, for example, may not prevent a
worker from earning a living. But it will make it difficult to enjoy
``noneconomic'' pursuits like playing soccer with your kids, or
basketball and volleyball with friends, or a multitude of other things
that make life enjoyable.
Mr. Speaker, H.R. 5 instructs that the value of life is capped at
economic losses plus $250,000. That seems inconsistent with the
administration's recent characterization of the value of life as
``immeasurable.'' Remarkably, our friends on the other side of the
aisle have taken out their calculators, and they have measured the
immeasurable. Perhaps they should call the White House, and let them
know.
While the proponents of H.R. 5 appear already to have figured it all
out, I want to ask them: How much is hugging your grandchildren worth?
How much is kissing your husband or wife worth? How much is the ability
to walk or to drive or to play a round of golf worth? How much is your
ability to feed, bathe and clothe yourself worth? How much is seeing
your children grow up worth? How much is your life worth?
I honestly don't know, and I don't think we should be answering those
questions for every American either.
Whether it's losing a limb, or an eye, or just the freedom to be able
to go where you want and do what you want, how many of us would trade a
lifetime of disability or disfigurement, not to mention pain, for
$250,000?
The very real consequence of this legislation is that it punishes the
most economically vulnerable members of our society to the benefit of
greedy insurance companies. It discriminates against children, against
women, against older Americans, against ethnic minorities, against the
poor. And for what, Mr. Speaker? History shows us the only winners
emerging from H.R. 5 are the medical malpractice insurance carriers--
not the doctors, hospitals and patients our friends on the other side
of the aisle purportedly seek to help.
I urge you to vote against this ill-conceived and mean-spirited
legislation.
Ms. SCHAKOWSKY. Mr. Speaker, I rise in strong opposition to H.R. 5,
the so-called HEALTH Act. The civil justice system is about giving
injured consumers their day in court, allowing them the opportunity to
hold wrongdoers accountable, recover damages and change dangerous
behaviors. H.R. 5 is a frontal assault on those consumer rights.
H.R. 5 is a dangerous, anti-consumer bill that would impose an
arbitrary ceiling $250,000--on the amount a patient injured by medical
malpractice, HMO denials, nursing home abuse or defective drugs or
medical devices could receive for noneconomic damages, no matter how
devastating the injury. In many cases, the victim may have few out-of
pocket losses, but suffer great harm. For example, an l8-year old woman
who loses her ability to have a child for the rest of her life may
suffer no monetary loss. Under H.R. 5, the most she could recover in a
medical malpractice lawsuit would be $250,000.
Politicians should not impose arbitrary caps on non-economic damages.
We are no substitute for a jury of one's peers, which has the ability
to look at the facts and weigh the evidence in individual cases. There
are some who say that it is appropriate to limit non-economic damages
since economic damages are not capped. But non-economic damages are not
``extras,'' they are not inconsequential. Unbearable and long-term
pain, loss of sight and mobility, the inability to bear children, the
loss of an infant or a grandparent--these may not be as easily
quantifiable as lost wages but the losses are just as real. And, for
many consumers who have been injured or lost a loved one, noneconomic
damages might be the only damages available.
The National Citizens' Coalition for Nursing Home Reform has provided
actual histories of nursing home residents harmed by medical
negligence. Frances G's physician described her as ``the victim of
gross nursing home neglect. Her pressure sores and dehydration were
inexcusable.'' Her nursing home was consistently understaffed, her
physician's orders were repeatedly ignored, and she endured
excruciating and continual pain from pressure sores but was given no
pain medication. Gertrude H., according to charge nurses, was grossly
neglected and suffered life-threatening pressure sores. Her physician
stated that, ``I have no doubt that Gertrude experienced severe and
unrelenting pain from June 27, 2000 to February 6, 2001, from the deep,
eroding pressure sores.'' Because both Frances and Gertrude were senior
citizens, any compensation would come in the form of non-economic
damages. Do my colleagues really believe that $250,000 is
``reasonable'' compensation for Frances and Gertrude and their
families?
Children are also adversely affected by caps on non-economic damages.
Shannon Hughes had a long and difficult labor. The doctor was called
repeatedly and finally showed up at her 35th hour of labor. At 37
hours, the doctor performed an emergency C-section. The umbilical cord
was twice wrapped around the child's neck. Tyler suffered cardiac
arrest for 18 minutes. As a result, Tyler, who is now 7 years old, is
severely brain-damaged and bedridden. He must be turned every two
hours, is
[[Page H7005]]
fed through a tube, suffers seizures daily and is non-communicative.
Shannon says, ``My son has no future but pain and suffering. No
politician in Washington has the right to decide what is proper
compensation for him.'' Like many parents, Shannon may need to use
whatever noneconomic damages she received in order to pay for Tyler's
care once her economic compensation runs out. In many instances,
because of rising medical costs and new technologies, the damages
awarded for medical care run out while the medical bills keep coming.
Tyler survived, but many babies do not. Where medical malpractice
results in the death of a child during labor, a mother most often will
not have any physical injury but only emotional distress of losing her
child. In this case, under the proposal by H.R. 5, no amount of
economic damages will be awarded, and the non-economic damages would be
capped at $250,000.
Non-economic damage caps have a disproportionate effect on women who
work inside the home, children, senior citizens, children and low wage-
earners who are more likely to receive a greater percentage of their
compensation in the form of non-economic damages if they are injured.
But caps on damages are not the only anti-consumer provisions in this
legislation.
In addition to the arbitrary ceiling on non-economic damages, H.R. 5
lets wrongdoers--those found guilty of medical malpractice--decide
whether to pay damages on a periodic basis, even if the injured
consumer wants and needs damages paid upfront.
H.R. 5 eliminates joint and several liability. This means that a
consumer injured by more than one wrongdoer will not be fully
compensated if one of those wrongdoers declares bankruptcy or cannot
pay their share.
H.R. 5 eliminates the collateral source rule, which could mean that
an injured consumer's health insurer--not the wrongdoer--pays the
medical bill.
H.R. 5 also places limits on punitive damages, gives special
protections for drug companies and medical device manufacturers, caps
attorneys' fees for plaintiffs but not defendants, and shortens the
statute of limitations. Finally, it includes a state preemption
provision that leaves in place state laws more favorable to medical
providers and organizations while overturning state laws more favorable
to injured consumers.
While it is clear what H.R. 5 would do in terms of eliminating
consumers' rights, it is equally clear what it won't do. No insurance
company executive has yet to come forward to say that passage of H.R. 5
would reduce medical malpractice premiums. In fact, according to
American Insurance Association spokesman Dennis Kelly, quoted in the
January 3, 2005 Chicago Tribune, ``We have not promised price
reductions with tort reform.'' The General Counsel for the American
Tort Reform Association admitted that ``There is no question that it is
very rare that frivolous suits are brought against doctors. They are
too expensive to bring.'' (Los Angeles Times, 10/22/04).
At the same time, multiple studies have indicated that medical
malpractice premiums are not connected to jury award or settlement
levels. A recent analysis of the top 15 medical malpractice insurers
found no rise in payouts from 2000 to 2004, at the same time that
premiums doubled. Some companies significantly increased premiums while
their claims actually decreased. A study by the Economic Policy
Institute found that the number of tort cases fell 4 percent from 1993
to 2002 and that the real causes of higher premiums were economic
factors and insurers' investment decisions.
H.R. 5 takes away consumers' rights and particularly hurts women,
children and seniors, while doing nothing to help doctors with high
malpractice insurance premiums. I urge my colleagues to vote ``no'' on
H.R. 5.
Mr. DAVIS of Illinois. Mr. Speaker, I rise today to express my
opposition to H.R. 5, the HEALTH Act of 2005. I rise to oppose this
legislation, not because I do not recognize the crisis that is brewing
in the area of medical malpractice insurance, but because this
legislation tries to remedy this crisis with the wrong prescription.
Many of my distinguished colleagues on both sides of the aisle have
expressed their concern regarding the access to healthcare that their
constituents face. We all recognize this is a major problem in our
country. In addition, physicians are constantly under increased
pressure throughout the nation to deal with the increased burden that
high malpractice premiums pose to their livelihood. In my home state of
Illinois, only two neurosurgeons can be found south of Springfield
because malpractice insurance rates are so out-of-control. Due to this
shortage of neurosurgeons, patients with serious brain injuries are
airlifted to St. Louis, many times costing them valuable minutes that
can mean the difference between life and death. To remedy this
situation as well as the overall problem of liability premium
increases, my state imposed caps on non-economic damages to offer a
quick fix to keep fleeing doctors. Currently, there are some 21 other
states with similar caps.
While caps give the appearance of remedying this crisis in some
states, they do nothing to stem the tide of ``frivolous lawsuits.''
Frivolous lawsuits by definition are lawsuits without merit. According
to the Physicians Insurers Association of America, the trade group
representing physician-owned insurance companies, 70% of malpractice
lawsuits are dismissed and only 0.8% of cases actually go through a
trial and reach a verdict in favor of the plaintiff.
Advocates of caps argue that this 0.8% is what drives up the cost of
malpractice insurance. They argue that out-of-control jury awards drive
up malpractice premiums. Are we to assume that this 0.8% of cases which
go through fair trial, find in favor of the plaintiff, are in fact
``frivolous''? I would argue that the 70% of cases which are dismissed
are the ``frivolous cases,'' and this 0.8% represents many egregious
cases of malpractice.
Without addressing this problem, this bill does nothing to stop
``frivolous lawsuits,'' it only limits the claims of a person who
suffers a terrible and often extreme example of malpractice. Minor
injuries or pain and suffering do not receive massive awards. I ask my
colleagues, if you or one of your family members suffered a
tremendously egregious example of malpractice, would you want to be
limited in what you or your family member could be compensated? I am
sure your response, much as mine is that you would not.
My colleagues, we can debate over and over again on legislation such
as this, but all the debate in the world will not lead to solving this
problem when we are headed in a direction such as this. As many of my
colleagues have pointed out, a recent study of the 15 largest
malpractice insurers in the country found that insurers substantially
increased their net premiums by an average of 120% while both their
payments and projected future claims payments were flat or decreasing
over the past few years. This directly contradicts the insurance
industry's claims that premiums are increasing due to increased jury
awards. Many of these same insurers even admit that capping malpractice
awards will not reverse the trend of rising premiums. The malpractice
insurance industry is unjustifiably raising their premiums, gouging
doctors, and pushing for legislation that only does one thing: pits
doctors against their patients.
If Congress is really serious about fixing this problem it will
develop a system which benefits patients most while sidelining the
interests of big business. Physicians are in the business of caring for
patients, and I appreciate the burden they face with increased
malpractice premiums. I am fully aware that this burden affects their
ability to practice the profession they love. I only hope that in this
struggle to find a remedy to this problem, the few patients who are
harmed as a result of malpractice will not be further harmed by a limit
on a just compensation.
Mr. LANGEVIN. Mr. Speaker, I rise today in strong opposition to H.R.
5, the Help Efficient, Accessible, Low Cost, Timely Health Care
(HEALTH) Act. It is irresponsible to limit patients' access to the
civil justice system, particularly without any guaranteed decrease in
the cost of malpractice insurance coverage. This measure contains no
provision requiring insurers to lower their rates once these so-called
reforms are in place. As a result, it would leave countless patients
deprived of relief while failing completely to help our struggling
health providers.
Like many of my colleagues, I am deeply troubled by the rising cost
of malpractice insurance. Doctors across the country are being
adversely affected by an increase in medical liability insurance
premiums. These increases are making it more costly for physicians to
practice, and rising insurance rates could eventually mean that
patients no longer will have easy access to medical care. Doctors
completing residencies in expensive areas are seeking better rates
elsewhere, and physicians already in the market are leaving. I
recognize that this is becoming a national crisis.
There is wide agreement that something must be done to ensure
reasonable rates and protect access to health care. Unfortunately, the
leadership has presented us with a partisan bill, identical to that
which we voted on in two previous Congressional sessions. Nothing in
this legislation would decrease premium costs or increase the
availability of medical malpractice insurance. Instead, it would make
detrimental changes to the health care liability system that would
extend beyond malpractice and compromise the ability of patients and
other health care consumers to hold pharmaceutical companies, HMO's and
health care and medical products providers accountable.
Once again, we are presented with a bill that the leadership claims
will lower costs of medical liability insurance for doctors, but fails
to address the rate-setting process followed by the insurance industry.
Insurance companies benefit from a federal exemption to antitrust
[[Page H7006]]
laws, which allows them to collectively raise premiums without fear of
prosecution. A recent study of the annual statements of the 15 largest
medical malpractice insurers found that insurers substantially
increased their premiums while both their claims payments and projected
future claims payments were decreasing. Other studies suggest that rate
changes in premiums are closely tied to the fluctuations of the stock
market--not the increases in claims from frivolous lawsuits.
Perhaps most troubling to me is that nothing in this bill stipulates
that savings earned as a result of the ``reforms'' must be passed along
to doctors, through a lowering of their own insurance costs. In light
of the lack of transparency requirements of the insurance industry,
there is no mechanism to hold them accountable to actually lower costs.
I believe this must be the crux of any meaningful reform measure.
I recognize that the rapid increase in insurance premiums is having
real effects on the health care industry. Not only does it drive up the
cost of health care for consumers and doctors--it is having an impact
on the medical professional workforce. Residents are being encouraged
to enter lower-risk fields of practice and doctors are making decisions
about their careers based the costs of insurance.
The Democratic motion to recommit proposes to address these issues by
allowing patients to seek redress and providing assistance to
physicians and hospitals in need. Specifically, this alternative would
end frivolous lawsuits by requiring affidavits to be filed by qualified
specialists certifying that the case is meritorious. It would also
establish an independent advisory commission to explore the impact of
malpractice insurance rates, particularly in areas where health care
providers are lacking. These are the steps that we must take in order
to adequately address this problem.
In addition to meaningful systemic reform, any responsible approach
to the issues of medical malpractice insurance costs should include
efforts to reduce medical errors in the first place. Reports show that
there preventable medical errors that kill nearly 100,000 hospital
patients a year. The utilization of electronic health records at our
hospitals can go a long way in this effort. The Veteran's
Administration (VA), which relies heavily on information technology,
has been the first large health system in the nation to replace paper
charts with this fully electronic record. Electronic medical records
and the efficient use of technology can be a significant agent for
change in health care quality across all settings, reducing not only
inefficiencies, but the number of medical errors as well.
Mr. Speaker, I urge my colleagues to oppose the underlying bill,
support the Democratic alternative and commit to working together on
reform measures that will result in significant change, benefiting
doctors and consumers alike.
Mr. SHUSTER. Mr. Speaker, I rise today to urge my colleagues to
support H.R. 5, the HEALTH Act.
This country's health care system and its providers are currently
faced with a crisis in regard to medical liability coverage.
Skyrocketing malpractice insurance premiums have taken an enormous toll
on the physicians and hospitals in my district in Western and Central
Pennsylvania. I have encountered many situations all over the
communities that make up the 9th district where doctors have moved to
lower-liability states, have reduced the scope of their practices, or
have chosen to retire in the face of this growing malpractice crisis.
This must not be allowed to continue.
I strongly disagree with those that would say there is no problem.
Currently, only 4 percent of physicians practicing in Pennsylvania are
under the age of 35 and students graduating from our medical schools
are choosing not to stay and practice in State. As our older doctors
retire or limit their practices there is no one to continue their
important work. This real and increasing threat to patients' access to
quality care cannot be ignored. The medical liability system in this
country is in desperate need of reform.
We must act now to reverse a dangerous litigious trend that is
eliminating doctors faster than we can replace them. I urge my
colleagues to support and vote in favor of H.R. 5.
Mr. SALAZAR. Mr. Speaker, today, the House of Representatives will
debate and vote on a proposal that supporters claim will solve the
problem of increasingly unaffordable medical malpractice insurance
premiums for our Nation's doctors. They argue that outrageous jury
awards are to blame for rising healthcare costs.
I am afraid this bill is not the end-all, save-all solution to our
health care crisis; and, in fact, I fear it will do nothing to relieve
the burden our doctors face. If we are serious about lowering the cost
of medical malpractice insurance why aren't we addressing the issue of
insurance reform or ways in which we can weed out bad doctors, or for
that matter, trial lawyers who abuse the court system?
This bill does little more than set a 1970's era cap on jury awards
for medical malpractice cases, an action which will only hurt those who
are already suffering--the patients and their loved ones.
An analysis of State by State medical malpractice insurance premiums,
obtained from the Medical Liability Monitor, compared with caps on
damages reveals no conclusive evidence these caps work. In fact,
according to one survey, insurance premiums in states with caps were on
average $4170 higher than those in States without caps.
This bill goes much further than simply addressing the medical
malpractice insurance dilemma; it even sets caps on damages for nursing
home neglect, unsafe prescription drugs, and a variety of other health-
related industries. In 2004, Congress and others raised questions about
the safety and effectiveness of several FDA-approved biomedical
products on the market, including certain antidepressants, Merck's pain
relief drug, Vioxx, Boston Scientific's cardiac stents, and other drugs
and medical devices. Evidence has suggested that there were problems
with these items during clinical trials.
Does this Congress really want to protect companies who knowingly put
dangerous products on the market? I know I don't.
H.R. 5 does not go nearly far enough to address the climbing medical
malpractice insurance rates or the healthcare crisis our constituents
are trying to negotiate. I again pose the questions, why doesn't this
bill address the insurance industry; why aren't we trying to weed out
bad doctors; or punish trial lawyers who abuse the system?
We need something more than caps on jury awards to lower the cost of
health care in this country.
Mr. CARDIN. Mr. Speaker, I rise in opposition to this bill. I support
reform of our nation's medical liability system. I also believe that
doctors and medical institutions who are experiencing unsustainable
increases in their malpractice premiums deserve relief. Before coming
to Congress, as Speaker of the Maryland House of Delegates, I worked to
craft legislation that brought significant changes at the state level,
including reasonable caps on non-economic damages. It worked well to
hold down the cost of premiums and make our State's malpractice system
a much fairer one.
The problems in our Nation's medical liability system require a
multi-faceted approach that includes addressing the causes of premium
increases, reducing the number of frivolous lawsuits, and limiting the
number of medical errors. I support enacting fair reforms that will
continue to permit injured patients to hold wrongdoers accountable, and
I am willing to support legislation that provides for reasonable caps
on non-economic and punitive damages.
In recent years, I have seen so-called malpractice ``reform'' bills
come to the floor of this House. Those bills provided an inequitable
approach--limiting patients' access to the courts and imposing strict
limits on compensation for their injuries, no matter how serious the
injury or how egregious the malpractice, while doing nothing to lower
malpractice premiums. Fortunately, they were not enacted into law.
I had hoped that this year's legislation would be the product of
careful deliberation at the committee level. I had hoped that the
authors would take into consideration the rights of patients and
balance them carefully with the need to alleviate the burden of
escalating malpractice insurance costs. Unfortunately, once again this
year, the bill before us does neither. In fact, the leadership has
simply rolled out a bill that is nearly identical to the one we
considered in the last Congress. There were no hearings, no markups,
and today, there are no opportunities to amend the bill. The same bill,
the same bill number, the same disregard for the rights of patients,
the same ineffectual approach to helping physicians.
Mr. Speaker, I want to call attention to a few aspects of this bill.
First, this bill contains an arbitrary cap of $250,000 on non-economic
damages. Non-economic awards compensate patients and their families for
real injuries, and sharply capping them will disproportionately hurt
families, children, seniors, and others who have lower or fixed
incomes.
Second, H.R. 5 provides a shield against punitive damages for
manufacturers of prescription drugs and medical devices as long as they
have been approved by the U.S. Food and Drug Administration. At one
time, the FDA shield might have been less controversial. After all, the
FDA has long been considered the gold standard for prescription drug
quality and safety, and for years its seal of approval was viewed by
the American public as a guarantee that drugs were safe. But in light
of developments related to several other pharmaceuticals approved by
the FDA, this provision is truly baffling. Cases involving life-
threatening complications from these drugs have raised fundamental
questions about the safety determinations made by the FDA.
In 2004, the Energy and Commerce Committee held hearings to examine
safety Issues
[[Page H7007]]
surrounding the prescribing of antidepressants to children. At that
time, several members of the Committee criticized the FDA for failing
to take prompt action to address these concerns. Last September, Vioxx
was withdrawn from the market after a study showed it doubled the risk
of heart attacks and strokes in patients taking the drug for more than
18 months. Since then, it has been reported that more than 130,000
persons have suffered heart attacks as a result of taking Vioxx.
Richard Matthews of Thurmont, Maryland, was one of the first reported
fatalities from Vioxx. According to an Associated Press account,
Richard's wife, Lisa, said her husband had no previous heart problems
and died in 2002 at age 42 of a heart arrhythmia only a few days after
he began taking Vioxx. Several Congressional committees have responded
to these events by initiating investigations of drug safety issues,
including the FDA's procedures for evaluating the safety of
prescription drugs.
Given the questions that have arisen about FDA's effectiveness, it is
truly astonishing that the leadership is here promoting a bill that
prohibits the awarding of any punitive damages and limits non-economic
damages for drugs and devices approved by the FDA. This bill, H.R. 5,
was referred to the Energy and Commerce Committee, the same committee
that acknowledged problems at the FDA. Did the committee's members try
to amend this bill to strike or tone down the FDA provision? There was
no opportunity. H.R. 5 was introduced one week ago, July 21, referred
to the Judiciary and Energy and Commerce Committees, which did not hold
a hearing or mark-up, and then brought to the floor today. The FDA
shield is an irresponsible provision that should have been stricken
from this bill. We have no opportunity to strike it today, because an
amendment that would have done so was not made in order by the Rules
Committee. It may endanger the health and lives of thousands of
Americans. It will certainly deny them the opportunity to receive fair
compensation when they are injured.
Third, I firmly believe that we must reduce medical errors in our
health care system if we are to reduce the number of malpractice cases.
It has been nearly six years since the 1999 report of the Institute of
Medicine, IOM, entitled ``To Err Is Human: Building A Safer Health
System.'' That report focused a great deal of attention on the issue of
medical errors and patient safety. IOM estimated that between 44,000
and 98,000 people die in hospitals each year as the result of medical
errors.
Even using the lower estimate, this would make medical errors the
eighth leading cause of death in this country, higher than motor
vehicle accidents, breast cancer, or AIDS. This House has just passed
S. 544, legislation intended to reduce medical errors and improve
patient safety. But its passage by a nearly unanimous vote of 428 to 3
is a clear indication that Congress knows there are valid cases whose
victims deserve their day in court. The patient safety bill has not yet
been signed into law. I hope it will be law soon, and that it will help
improve patient safety. But each case is an individual case, and those
who are harmed by medical errors deserve just compensation for their
injuries.
Finally, I must question why the authors of this bill are not
addressing malpractice insurance premium increases in this bill. The
provisions of H.R. 5 would not reduce the rates that insurance
companies charge providers. We have an alternative that would directly
address the problems of frivolous lawsuits and insurance industry
abuses. But once again this year, the base bill, H.R. 5, contains no
provisions that will lower malpractice premiums.
Mr. Speaker, I must tell you, malpractice premium costs are the
reason that providers ask me to support medical malpractice reform.
These are practitioners who truly love their professions, and they are
troubled by dramatic increases in their malpractice rates, increases
that they must pay whether or not there have been any malpractice
claims filed against them in the past year. They say that they want to
continue practicing medicine next year, but they may not be able to
afford to. When I ask if they would like to see provisions in the bill
that limit their premium increases, they emphatically reply yes. So it
is puzzling that this bill, which the authors say was written to help
physicians stay in business, fails to address their central concern by
even monitoring insurance companies' rate hikes. In fact, there are no
provisions anywhere in the bill that affect malpractice insurers.
In sum, H.R. 5 represents a missed opportunity for this House. We
could have produced a bill that would truly make a difference, in
lowering malpractice premiums, in placing reasonable caps on non-
economic damages. I am disappointed that we don't have a better bill, a
more responsible bill that we can vote on today. I urge my colleagues
to reject this approach, which will do nothing to improve access to
care, nothing to hold insurance companies accountable for premium
increases, and nothing to make our nation's medical liability system
more fair.
Ms. McCOLLUM of Minnesota. Mr. Speaker, I rise in opposition to H.R.
5, the Republican Medical Malpractice legislation. This flawed bill
provides sweeping liability protections to pharmaceutical and insurance
companies, provides inadequate protections for doctors, and will do
nothing to lower health care costs.
Doctors are rightly frustrated over the significant increases in
medical liability insurance premiums and I am truly concerned that
additional costs make it more difficult for physicians to stay in
practice. However, I do not believe that this legislation addresses the
real problem, which lies with the insurance companies.
Republicans have for years claimed that the rising costs of
malpractice insurance are due to a dramatic increase in malpractice
lawsuits. However, a recent study of the 15 largest insurance companies
shows that over the past 5 years, premiums have doubled while claims
payments have been reduced or remained static. This study proves that
insurance companies are simply increasing their profits on the backs of
our physicians.
Another totally outrageous provision of this bill is the sweeping
liability protection for pharmaceutical companies. This bill states
that if a product has gone through the Food and Drug Administration
approval process, no punitive damages can be awarded against the
manufacture of the device or drug later. If this were to become law,
the manufacturers of Vioxx would be protected from lawsuits from the
families of those harmed or killed by this faulty medication. It is
unacceptable to put into law that pharmaceutical and insurance
companies are without accountability when their products or decisions
knowingly cause harm.
This Republican bill will hurt patients who are harmed by medical
malpractice by arbitrarily capping damages and denying justice to
injured patients and their families. This is not only unfair, it is
unnecessary. New information shows that there is no link between the
existence of malpractice caps and insurance premiums.
Finally, because medical malpractice accounts for less than one
percent of national health care costs, this legislation will do nothing
to reduce health care premiums. Families across America are struggling
to afford quality health care and the numbers of uninsured are on the
rise. We need to address the real issues involved in the dramatic
increase in health care costs, such as the cost of prescription drugs,
provider shortages, uninsurance, and the cost of new technologies.
This Congress must become serious about increasing access to quality
health care. We need to put families, not pharmaceutical companies,
first. I support the Democratic substitute which would have weeded out
frivolous lawsuits but allowed justice for injured patients. Democrats
were ready to take steps to really reduce insurance premiums by
requiring insurance companies to give half of their savings to
reductions in medical malpractice rates for doctors. Finally, this
substitute would create a commission to evaluate the real causes of
increases in premiums as well as insurance reform proposals. We all
recognize that this is an important issue. This substitute will give us
an opportunity to work together, with accurate information, to make
real progress for patients and providers.
Mr. Smith of Texas. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Shaw). Pursuant to House Resolution 385,
the bill is considered read and the previous question is ordered.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
Motion to Recommit Offered by Mr. Conyers
Mr. CONYERS. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. CONYERS. I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Conyers moves to recommit the bill H.R. 5 to the
Committee on the Judiciary and the Committee on Energy and
Commerce with instructions to report the same back to the
House forthwith with the following amendment:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Medical
Malpractice and Insurance Reform Act of 2005''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--LIMITING FRIVOLOUS MEDICAL MALPRACTICE LAWSUITS
Sec. 101. Statute of limitations.
[[Page H7008]]
Sec. 102. Health care specialist affidavit.
Sec. 103. Sanctions for frivolous actions and pleadings.
Sec. 104. Mandatory mediation.
Sec. 105. Limitation on punitive damages.
Sec. 106. Reduction in premiums paid by physicians for medical
malpractice insurance coverage.
Sec. 107. Definitions.
Sec. 108. Applicability.
TITLE II--INDEPENDENT ADVISORY COMMISSION ON MEDICAL MALPRACTICE
INSURANCE
Sec. 201. Establishment.
Sec. 202. Duties.
Sec. 203. Report.
Sec. 204. Membership.
Sec. 205. Director and staff; experts and consultants.
Sec. 206. Powers.
Sec. 207. Authorization of appropriations.
TITLE I--LIMITING FRIVOLOUS MEDICAL MALPRACTICE LAWSUITS
SEC. 101. STATUTE OF LIMITATIONS.
(a) In General.--A medical malpractice action shall be
barred unless the complaint is filed within 3 years after the
right of action accrues.
(b) Accrual.--A right of action referred to in subsection
(a) accrues upon the last to occur of the following dates:
(1) The date of the injury.
(2) The date on which the claimant discovers, or through
the use of reasonable diligence should have discovered, the
injury.
(3) The date on which the claimant becomes 18 years of age.
(c) Applicability.--This section shall apply to any injury
occurring after the date of the enactment of this Act.
SEC. 102. HEALTH CARE SPECIALIST AFFIDAVIT.
(a) Requiring Submission With Complaint.--No medical
malpractice action may be brought by any individual unless,
at the time the individual brings the action (except as
provided in subsection (b)(1)), it is accompanied by the
affidavit of a qualified specialist that includes the
specialist's statement of belief that, based on a review of
the available medical record and other relevant material,
there is a reasonable and meritorious cause for the filing of
the action against the defendant.
(b) Extension in Certain Instances.--
(1) In general.--Subject to paragraph (2), subsection (a)
shall not apply with respect to an individual who brings a
medical malpractice action without submitting an affidavit
described in such subsection if, as of the time the
individual brings the action, the individual has been unable
to obtain adequate medical records or other information
necessary to prepare the affidavit.
(2) Deadline for submission where extension applies.--In
the case of an individual who brings an action for which
paragraph (1) applies, the action shall be dismissed unless
the individual (or the individual's attorney) submits the
affidavit described in subsection (a) not later than 90 days
after obtaining the information described in such paragraph.
(c) Qualified Specialist Defined.--In subsection (a), a
``qualified specialist'' means, with respect to a medical
malpractice action, a health care professional who is
reasonably believed by the individual bringing the action (or
the individual's attorney)--
(1) to be knowledgeable in the relevant issues involved in
the action;
(2) to practice (or to have practiced) or to teach (or to
have taught) in the same area of health care or medicine that
is at issue in the action; and
(3) in the case of an action against a physician, to be
board certified in a specialty relating to that area of
medicine.
(d) Confidentiality of Specialist.--Upon a showing of good
cause by a defendant, the court may ascertain the identity of
a specialist referred to in subsection (a) while preserving
confidentiality.
SEC. 103. SANCTIONS FOR FRIVOLOUS ACTIONS AND PLEADINGS.
(a) Signature Required.--Every pleading, written motion,
and other paper in any medical malpractice action shall be
signed by at least 1 attorney of record in the attorney's
individual name, or, if the party is not represented by an
attorney, shall be signed by the party. Each paper shall
state the signer's address and telephone number, if any. An
unsigned paper shall be stricken unless omission of the
signature is corrected promptly after being called to the
attention of the attorney or party.
(b) Certificate of Merit.--(1) A medical malpractice action
shall be dismissed unless the attorney or unrepresented party
presenting the complaint certifies that, to the best of the
person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances,--
(A) it is not being presented for any improper purpose,
such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(B) the claims and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or
the establishment of new law; and
(C) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable
opportunity for further investigation and discovery.
(2) By presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion,
or other paper, an attorney or unrepresented party is
certifying that to the best of the person's knowledge,
information and belief, formed after an inquiry reasonable
under the circumstances--
(A) it is not being presented for any improper purpose,
such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(B) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of
existing law or the establishment of new law; and
(C) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
reasonable based on a lack of information or belief.
(c) Mandatory Sanctions.--
(1) First violation.--If, after notice and a reasonable
opportunity to respond, a court, upon motion or upon its own
initiative, determines that subsection (b) has been violated,
the court shall find each attorney or party in violation in
contempt of court and shall require the payment of costs and
attorneys fees. The court may also impose additional
appropriate sanctions, such as striking the pleadings,
dismissing the suit, and sanctions plus interest, upon the
person in violation, or upon both such person and such
person's attorney or client (as the case may be).
(2) Second violation.--If, after notice and a reasonable
opportunity to respond, a court, upon motion or upon its own
initiative, determines that subsection (b) has been violated
and that the attorney or party with respect to which the
determination was made has committed one previous violation
of subsection (b) before this or any other court, the court
shall find each such attorney or party in contempt of court
and shall require the payment of costs and attorneys fees,
and require such person in violation (or both such person and
such person's attorney or client (as the case may be)) to pay
a monetary fine. The court may also impose additional
appropriate sanctions, such as striking the pleadings,
dismissing the suit and sanctions plus interest, upon such
person in violation, or upon both such person and such
person's attorney or client (as the case may be).
(3) Third violation.--If, after notice and a reasonable
opportunity to respond, a court, upon motion or upon its own
initiative, determines that subsection (b) has been violated
and that the attorney or party with respect to which the
determination was made has committed more than one previous
violation of subsection (b) before this or any other court,
the court shall find each such attorney or party in contempt
of court, refer each such attorney to one or more appropriate
State bar associations for disciplinary proceedings, require
the payment of costs and attorneys fees, and require such
person in violation (or both such person and such person's
attorney or client (as the case may be)) to pay a monetary
fine. The court may also impose additional appropriate
sanctions, such as striking the pleadings, dismissing the
suit, and sanctions plus interest, upon such person in
violation, or upon both such person and such person's
attorney or client (as the case may be).
SEC. 104. MANDATORY MEDIATION.
(a) In General.--In any medical malpractice action, before
such action comes to trial, mediation shall be required. Such
mediation shall be conducted by one or more mediators who are
selected by agreement of the parties or, if the parties do
not agree, who are qualified under applicable State law and
selected by the court.
(b) Requirements.--Mediation under subsection (a) shall be
made available by a State subject to the following
requirements:
(1) Participation in such mediation shall be in lieu of any
alternative dispute resolution method required by any other
law or by any contractual arrangement made by or on behalf of
the parties before the commencement of the action.
(2) Each State shall disclose to residents of the State the
availability and procedures for resolution of consumer
grievances regarding the provision of (or failure to provide)
health care services, including such mediation.
(3) Each State shall provide that such mediation may begin
before or after, at the option of the claimant, the
commencement of a medical malpractice action.
(4) The Attorney General, in consultation with the
Secretary of Health and Human Services, shall, by regulation,
develop requirements with respect to such mediation to ensure
that it is carried out in a manner that--
(A) is affordable for the parties involved;
(B) encourages timely resolution of claims;
(C) encourages the consistent and fair resolution of
claims; and
(D) provides for reasonably convenient access to dispute
resolution.
(c) Further Redress and Admissibility.--Any party
dissatisfied with a determination reached with respect to a
medical malpractice claim as a result of an alternative
dispute resolution method applied under this section shall
not be bound by such determination. The results of any
alternative dispute resolution method applied under this
section, and all statements, offers, and communications made
during the application of such method, shall be inadmissible
for purposes of adjudicating the claim.
SEC. 105. LIMITATION ON PUNITIVE DAMAGES.
(a) In general.--Punitive damages may not be awarded in a
medical malpractice action, except upon proof of--
[[Page H7009]]
(1) gross negligence;
(2) reckless indifference to life; or
(3) an intentional act, such as voluntary intoxication or
impairment by a physician, sexual abuse or misconduct,
assault and battery, or falsification of records.
(b) Allocation.--In such a case, the award of punitive
damages shall be allocated 50 percent to the claimant and 50
percent to a trustee appointed by the court, to be used by
such trustee in the manner specified in subsection (d). The
court shall appoint the Secretary of Health and Human
Services as such trustee.
(c) Exception.--This section shall not apply with respect
to an action if the applicable State law provides (or has
been construed to provide) for damages in such an action that
are only punitive or exemplary in nature.
(d) Trust Fund.--
(1) In general.--This subsection applies to amounts
allocated to the Secretary of Health and Human Services as
trustee under subsection (b).
(2) Availability.--Such amounts shall be available for use
by the Secretary of Health and Human Services under paragraph
(3) and shall remain so available until expended.
(3) Use.--
(A) Subject to subparagraph (B), the Secretary of Health
and Human Services, acting through the Director of the Agency
for Healthcare Research and Quality, shall use the amounts to
which this subsection applies for activities to reduce
medical errors and improve patient safety.
(B) The Secretary of Health and Human Services may not use
any part of such amounts to establish or maintain any system
that requires mandatory reporting of medical errors.
(C) The Secretary of Health and Human Services shall
promulgate regulations to establish programs and procedures
for carrying out this paragraph.
(4) Investment.--
(A) The Secretary of Health and Human Services shall invest
the amounts to which this subsection applies in such amounts
as such Secretary determines are not required to meet current
withdrawals. Such investments may be made only in interest-
bearing obligations of the United States. For such purpose,
such obligations may be acquired on original issue at the
issue price, or by purchase of outstanding obligations at the
market price.
(B) Any obligation acquired by the Secretary in such
Secretary's capacity as trustee of such amounts may be sold
by the Secretary at the market price.
SEC. 106. REDUCTION IN PREMIUMS PAID BY PHYSICIANS FOR
MEDICAL MALPRACTICE INSURANCE COVERAGE.
(a) In General.--Not later than 180 days after the date of
the enactment of this Act, each medical malpractice liability
insurance company shall--
(1) develop a reasonable estimate of the annual amount of
financial savings that will be achieved by the company as a
result of this title;
(2) develop and implement a plan to annually dedicate at
least 50 percent of such annual savings to reduce the amount
of premiums that the company charges physicians for medical
malpractice liability coverage; and
(3) submit to the Secretary of Health and Human Services
(hereinafter referred to in this section as the
``Secretary'') a written certification that the company has
complied with paragraphs (1) and (2).
(b) Reports.--Not later than one year after the date of the
enactment of this Act and annually thereafter, each medical
malpractice liability insurance company shall submit to the
Secretary a report that identifies the percentage by which
the company has reduced medical malpractice coverage premiums
relative to the date of the enactment of this Act.
(c) Enforcement.--A medical malpractice liability insurance
company that violates a provision of this section is liable
to the United States for a civil penalty in an amount
assessed by the Secretary, not to exceed $11,000 for each
such violation. The provisions of paragraphs (3) through (5)
of section 303(g) of the Federal Food, Drug, and Cosmetic Act
apply to such a civil penalty to the same extent and in the
same manner as such paragraphs apply to a civil penalty under
such section.
(d) Definition.--For purposes of this section, the term
``medical malpractice liability insurance company'' means an
entity in the business of providing an insurance policy under
which the entity makes payment in settlement (or partial
settlement) of, or in satisfaction of a judgment in, a
medical malpractice action or claim.
SEC. 107. DEFINITIONS.
In this title, the following definitions apply:
(1) Alternative dispute resolution method.--The term
``alternative dispute resolution method'' means a method that
provides for the resolution of medical malpractice claims in
a manner other than through medical malpractice actions.
(2) Claimant.--The term ``claimant'' means any person who
alleges a medical malpractice claim, and any person on whose
behalf such a claim is alleged, including the decedent in the
case of an action brought through or on behalf of an estate.
(3) Health care professional.--The term ``health care
professional'' means any individual who provides health care
services in a State and who is required by the laws or
regulations of the State to be licensed or certified by the
State to provide such services in the State.
(4) Health care provider.--The term ``health care
provider'' means any organization or institution that is
engaged in the delivery of health care services in a State
and that is required by the laws or regulations of the State
to be licensed or certified by the State to engage in the
delivery of such services in the State.
(5) Injury.--The term ``injury'' means any illness,
disease, or other harm that is the subject of a medical
malpractice action or a medical malpractice claim.
(6) Mandatory.--The term ``mandatory'' means required to be
used by the parties to attempt to resolve a medical
malpractice claim notwithstanding any other provision of an
agreement, State law, or Federal law.
(7) Mediation.--The term ``mediation'' means a settlement
process coordinated by a neutral third party and without the
ultimate rendering of a formal opinion as to factual or legal
findings.
(8) Medical malpractice action.--The term ``medical
malpractice action'' means an action in any State or Federal
court against a physician, or other health professional, who
is licensed in accordance with the requirements of the State
involved that--
(A) arises under the law of the State involved;
(B) alleges the failure of such physician or other health
professional to adhere to the relevant professional standard
of care for the service and specialty involved;
(C) alleges death or injury proximately caused by such
failure; and
(D) seeks monetary damages, whether compensatory or
punitive, as relief for such death or injury.
(9) Medical malpractice claim.--The term ``medical
malpractice claim'' means a claim forming the basis of a
medical malpractice action.
(10) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, American Samoa, Guam, the Commonwealth of the Northern
Mariana Islands, the Virgin Islands, and any other territory
or possession of the United States.
SEC. 108. APPLICABILITY.
(a) In General.--Except as provided in section 104, this
title shall apply with respect to any medical malpractice
action brought on or after the date of the enactment of this
Act.
(b) Federal Court Jurisdiction Not Established on Federal
Question Grounds.--Nothing in this title shall be construed
to establish any jurisdiction in the district courts of the
United States over medical malpractice actions on the basis
of section 1331 or 1337 of title 28, United States Code.
TITLE II--INDEPENDENT ADVISORY COMMISSION ON MEDICAL MALPRACTICE
INSURANCE
SEC. 201. ESTABLISHMENT.
(a) Findings.--The Congress finds as follows:
(1) The sudden rise in medical malpractice premiums in
regions of the United States can threaten patient access to
doctors and other health providers.
(2) Improving patient access to doctors and other health
providers is a national priority.
(b) Establishment.--There is established a national
commission to be known as the ``Independent Advisory
Commission on Medical Malpractice Insurance'' (in this title
referred to as the ``Commission'').
SEC. 202. DUTIES.
(a) In General.--The Commission shall evaluate the causes
and scope of the recent and dramatic increases in medical
malpractice insurance premiums and formulate additional
proposals to reduce such medical malpractice premiums and
make recommendations to avoid any dramatic increases in
medical malpractice premiums in the future, in light of
proposals for tort reform regarding medical malpractice.
(b) Considerations.--In formulating proposals under this
section, the Commission shall, at a minimum, consider the
following:
(1) Alternatives to the current medical malpractice tort
system that would ensure adequate compensation for patients,
preserve access to providers, and improve health care safety
and quality.
(2) Modifications of, and alternatives to, the existing
State and Federal regulations and oversight that affect, or
could affect, medical malpractice lines of insurance.
(3) State and Federal reforms that would distribute the
risk of medical malpractice more equitably among health care
providers.
(4) State and Federal reforms that would more evenly
distribute the risk of medical malpractice across various
categories of providers.
(5) The effect of a Federal medical malpractice reinsurance
program administered by the Department of Health and Human
Services.
(6) The effect of a Federal medical malpractice insurance
program, administered by the Department of Health and Human
Services, to provide medical malpractice insurance based on
customary coverage terms and liability amounts in States
where such insurance is unavailable or is unavailable at
reasonable and customary terms.
(7) Programs that would reduce medical errors and increase
patient safety, including new innovations in technology and
management.
[[Page H7010]]
(8) The effect of State policies under which--
(A) any health care professional licensed by the State has
standing in any State administrative proceeding to challenge
a proposed rate increase in medical malpractice insurance;
and
(B) a provider of medical malpractice insurance in the
State may not implement a rate increase in such insurance
unless the provider, at minimum, first submits to the
appropriate State agency a description of the rate increase
and a substantial justification for the rate increase.
(9) The effect of reforming antitrust law to prohibit
anticompetitive activities by medical malpractice insurers.
(10) Programs to facilitate price comparison of medical
malpractice insurance by enabling any health care provider to
obtain a quote from each medical malpractice insurer to write
the type of coverage sought by the provider.
(11) The effect of providing Federal grants for geographic
areas that have a shortage of one or more types of health
providers as a result of the providers making the decision to
cease or curtail providing health services in the geographic
areas because of the costs of maintaining malpractice
insurance.
SEC. 203. REPORT.
(a) In General.--The Commission shall transmit to
Congress--
(1) an initial report not later than 180 days after the
date of the initial meeting of the Commission; and
(2) a report not less than each year thereafter until the
Commission terminates.
(b) Contents.--Each report transmitted under this section
shall contain a detailed statement of the findings and
conclusions of the Commission, including proposals for
addressing the current dramatic increases in medical
malpractice insurance rates and recommendations for avoiding
any such dramatic increases in the future.
(c) Voting and Reporting Requirements.--With respect to
each proposal or recommendation contained in the report
submitted under subsection (a), each member of the Commission
shall vote on the proposal or recommendation, and the
Commission shall include, by member, the results of that vote
in the report.
SEC. 204. MEMBERSHIP.
(a) Number and appointment.--The Commission shall be
composed of 15 members appointed by the Comptroller General
of the United States.
(b) Membership.--
(1) In general.--The membership of the Commission shall
include individuals with national recognition for their
expertise in health finance and economics, actuarial science,
medical malpractice insurance, insurance regulation, health
care law, health care policy, health care access, allopathic
and osteopathic physicians, other providers of health care
services, patient advocacy, and other related fields, who
provide a mix of different professionals, broad geographic
representations, and a balance between urban and rural
representatives.
(2) Inclusion.--The membership of the Commission shall
include the following:
(A) Two individuals with expertise in health finance and
economics, including one with expertise in consumer
protections in the area of health finance and economics.
(B) Two individuals with expertise in medical malpractice
insurance, representing both commercial insurance carriers
and physician-sponsored insurance carriers.
(C) An individual with expertise in State insurance
regulation and State insurance markets.
(D) An individual representing physicians.
(E) An individual with expertise in issues affecting
hospitals, nursing homes, nurses, and other providers.
(F) Two individuals representing patient interests.
(G) Two individuals with expertise in health care law or
health care policy.
(H) An individual with expertise in representing patients
in malpractice lawsuits.
(3) Majority.--The total number of individuals who are
directly involved with the provision or management of
malpractice insurance, representing physicians or other
providers, or representing physicians or other providers in
malpractice lawsuits, shall not constitute a majority of the
membership of the Commission.
(4) Ethical disclosure.--The Comptroller General of the
United States shall establish a system for public disclosure
by members of the Commission of financial or other potential
conflicts of interest relating to such members.
(c) Terms.--
(1) In general.--The terms of the members of the Commission
shall be for 3 years except that the Comptroller General of
the United States shall designate staggered terms for the
members first appointed.
(2) Vacancies.--Any member appointed to fill a vacancy
occurring before the expiration of the term for which the
member's predecessor was appointed shall be appointed only
for the remainder of that term. A member may serve after the
expiration of that member's term until a successor has taken
office. A vacancy in the Commission shall be filled in the
manner in which the original appointment was made.
(3) Compensation.--Members of the Commission shall be
compensated in accordance with section 1805(c)(4) of the
Social Security Act.
(4) Chairman; vice chairman.--The Comptroller General of
the United States shall designate at the time of appointment
a member of the Commission as Chairman and a member as Vice
Chairman. In the case of vacancy of the Chairmanship or Vice
Chairmanship, the Comptroller General may designate another
member for the remainder of that member's term.
(5) Meetings.--
(A) In general.--The Commission shall meet at the call of
the Chairman.
(B) Initial meeting.--The Commission shall hold an initial
meeting not later than the date that is 1 year after the date
of the enactment of this title, or the date that is 3 months
after the appointment of all the members of the Commission,
whichever occurs earlier.
SEC. 205. DIRECTOR AND STAFF; EXPERTS AND CONSULTANTS.
Subject to such review as the Comptroller General of the
United States deems necessary to assure the efficient
administration of the Commission, the Commission may--
(1) employ and fix the compensation of an Executive
Director (subject to the approval of the Comptroller General)
and such other personnel as may be necessary to carry out its
duties (without regard to the provisions of title 5, United
States Code, governing appointments in the competitive
service);
(2) seek such assistance and support as may be required in
the performance of its duties from appropriate Federal
departments and agencies;
(3) enter into contracts or make other arrangements, as may
be necessary for the conduct of the work of the Commission
(without regard to section 3709 of the Revised Statutes (41
U.S.C. 5));
(4) make advance, progress, and other payments which relate
to the work of the Commission;
(5) provide transportation and subsistence for persons
serving without compensation; and
(6) prescribe such rules and regulations as it deems
necessary with respect to the internal organization and
operation of the Commission.
SEC. 206. POWERS.
(a) Obtaining Official Data.--The Commission may secure
directly from any department or agency of the United States
information necessary to enable it to carry out this section.
Upon request of the Chairman, the head of that department or
agency shall furnish that information to the Commission on an
agreed upon schedule.
(b) Data Collection.--In order to carry out its functions,
the Commission shall--
(1) utilize existing information, both published and
unpublished, where possible, collected and assessed either by
its own staff or under other arrangements made in accordance
with this section;
(2) carry out, or award grants or contracts for, original
research and experimentation, where existing information is
inadequate; and
(3) adopt procedures allowing any interested party to
submit information for the Commission's use in making reports
and recommendations.
(c) Access of General Accounting Office to Information.--
The Comptroller General of the United States shall have
unrestricted access to all deliberations, records, and
nonproprietary data of the Commission, immediately upon
request.
(d) Periodic Audit.--The Commission shall be subject to
periodic audit by the Comptroller General of the United
States.
SEC. 207. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
such sums as may be necessary to carry out this title for
each of fiscal years 2006 through 2010.
(b) Requests for Appropriations.--The Commission shall
submit requests for appropriations in the same manner as the
Comptroller General of the United States submits requests for
appropriations, but amounts appropriated for the Commission
shall be separate from amounts appropriated for the
Comptroller General.
Amend the title so as to read: ``A bill to limit frivolous
medical malpractice lawsuits, to reform the medical
malpractice insurance business in order to reduce the cost of
medical malpractice insurance, to enhance patient access to
medical care, and for other purposes.''.
Mr. CONYERS (during the reading). Mr. Speaker, I ask unanimous
consent that the motion to recommit be considered as read and printed
in the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. CONYERS. Mr. Speaker, I am pleased to bring a motion to recommit
that goes to the heart of the medical malpractice crisis. Rather than
limiting the rights of legitimate malpractice victims, as the
underlying bill actually does, our motion would directly address the
problem of frivolous lawsuits and insurance industry abuses.
Title I of the substitute addresses the problem of frivolous
lawsuits. Among other things, it would require that both an attorney
and health care specialist submit an affidavit that the claim is
warranted before a malpractice action
[[Page H7011]]
can be brought, and imposes strict sanctions for attorneys who make any
frivolous pleadings.
Unlike the majority's bill, our amendment is limited to licensed
physicians and health care professionals for malpractice cases only. It
does not include lawsuits against HMOs, insurance companies, nursing
homes, and drug and device manufacturers. And it sure does not insulate
the manufacturer of Vioxx from liability.
Title II establishes a national commission to evaluate the rising
insurance premiums and to review whether the McCarran-Ferguson
antitrust exemption for medical malpractice insurers should be
repealed.
This is a good motion.
Mr. Speaker, I yield the balance of my time, the last 2\1/2\ minutes,
to the gentlewoman from Colorado (Ms. DeGette).
Ms. DeGETTE. Mr. Speaker, Congress is faced with an irony today. We
have identified a problem, and the problem is that doctors are going
out of business because of their high medical malpractice insurance
premiums. So what are we going to do? We are going to pass a bill that
caps damages for victims injured by medical malpractice, but we are
going to do nothing to reduce the premiums for these doctors.
{time} 1600
So doctors get no relief, and victims of malpractice get less. But
wait, there is more. There is so much more to this bill. We have not
heard one word today about the pressing problems the pharmaceutical
industry has and how we need to give them immunity so they will keep
making drugs. But yet that is what this bill does.
We have not heard one word today about how all of the nursing homes
are going out of business because of the lawsuits against them, but we
are giving them immunity today.
We have not heard a thing about the medical device manufacturers and
how they will not make the titanium hip replacements or the insulin
pumps, but yet we are giving them immunity today.
This bill goes further than any State law. It goes further than any
law anybody would contemplate, and it is just a giveaway to the
insurance industry, to the pharmaceutical industry, to the nursing home
industry, and to the medical device manufacturers.
If we pass the Conyers-Dingell motion to recommit, we will send this
bill back and we will do something that will really give relief to the
doctors who face these high malpractice insurance premiums.
I urge a ``yes'' vote on the motion to recommit. If that fails, I
urge a ``no'' vote on the underlying bill.
Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time.
This motion to recommit sets up a limitation on malpractice cases
being brought. It requires that there be an attorney and health care
specialist to submit an affidavit that the claim is warranted; and then
in the second part, we establish a national commission to evaluate the
causes of rising health insurance premiums.
This motion to recommit protects legitimate victims, limits frivolous
lawsuits, and gives us a much-needed opportunity to examine the real
causes of the medical malpractice insurance crisis that has this Nation
in its grip.
I urge my colleagues to support the motion to recommit so that we can
deal with medical malpractice insurance as a crisis and not as a
giveaway to the companies that have been named throughout this debate.
Mr. Speaker, I yield back the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I rise to claim the time in
opposition to the motion to recommit.
The SPEAKER pro tempore (Mr. Shaw). Is the gentleman opposed to the
motion?
Mr. SMITH of Texas. Yes, Mr. Speaker.
The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) is
recognized for 5 minutes.
Mr. SMITH of Texas. Mr. Speaker, the motion to recommit must be
defeated because it contains zero legal protections for doctors beyond
current law, and in some cases it actually makes the current crisis
even worse.
The Democratic alternative would require that before a health care
lawsuit is filed, the claimant file an affidavit declaring that a
qualified specialist has been consulted and has issued a written report
that says the filing is meritorious.
Mr. Speaker, the definition is so broad it is meaningless. The
Democratic alternative also imposes another wasteful layer of
bureaucracy on the health care system, mandatory mediation, which
simply has no binding effect.
The motion to recommit even makes the situation of OB/GYNs worse than
it is today by allowing someone as old as 21 to file a lawsuit claiming
the doctor who delivered them caused their injury 21 years before. The
motion to recommit would subject OB/GYNs to even more nuisance suits
and drive even more of them out of business.
So the Conyers-Dingell substitute contains zero legal reforms and
would make the current litigation crisis even worse; yet legal reforms
are needed to solve the current crisis in medical liability insurance
and increase access to health care.
H.R. 5 is the only proven legislative solution. According to the
Congressional Budget Office under the HEALTH Act, ``premiums for
medical malpractice insurance ultimately would be an average of 25 to
30 percent below what they would be under current law.''
Mr. Speaker, for the sake of health care providers and the people who
need them, let us keep doctors practicing their profession and defeat
this motion to recommit.
Mr. Speaker, I yield the balance of my time to the gentleman from
Wisconsin (Mr. Green), who is an expert on this subject.
Mr. GREEN of Wisconsin. Mr. Speaker, it all boils down to this: we
cannot get a handle on health care costs unless we first get a handle
on the least productive part of heath care costs. Excessive liability
costs are unproductive. They do not increase the quality of care. They
do not increase accessibility to care, and they certainly do not
increase affordability of care.
Here is what excessive liability costs do. They drive up insurance
costs for doctors. They drive physicians out of high-risk specialties
and fields, and they drive them out of high-cost areas. In some cases,
they drive them out of practice altogether; and in those cases we all
lose.
The great thing about the bill before us is we know it will work. It
is not speculative. We know it works. We know that reforms which permit
injured parties to recover every last dollar of economic damages, but
place a modest cap on noneconomic damages, loss of society, loss of
companionship, we know these reforms can help solve the medical
liability crisis. It worked in California. It once worked in Wisconsin.
And it can work all across America if we pass the HEALTH Act. If we
defeat this motion to recommit, we can solve the medical liability
crisis. This is what we must do.
Mr. SMITH of Texas. Mr. Speaker, I urge my colleagues to vote ``no''
on the motion to recommit and ``yes'' on the HEALTH Act.
The SPEAKER pro tempore (Mr. Sweeney). Without objection, the
previous question is ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair
will reduce to 5 minutes the minimum time for any electronic vote on
the question of passage.
The vote was taken by electronic device, and there were--yeas 193,
nays 234, answered ``present'' 1, not voting 5, as follows:
[Roll No. 448]
YEAS--193
Abercrombie
Ackerman
Allen
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carnahan
Case
Chandler
Clay
Cleaver
Clyburn
[[Page H7012]]
Conyers
Cooper
Costa
Costello
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Edwards
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank (MA)
Gonzalez
Green, Al
Green, Gene
Grijalva
Gutierrez
Harman
Hastings (FL)
Herseth
Higgins
Hinchey
Hinojosa
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Marshall
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McIntyre
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Moore (KS)
Moore (WI)
Moran (VA)
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schiff
Schwartz (PA)
Scott (GA)
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn
NAYS--234
Aderholt
Akin
Alexander
Bachus
Baker
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boustany
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carter
Castle
Chabot
Chocola
Coble
Cole (OK)
Conaway
Cox
Cramer
Crenshaw
Cubin
Culberson
Cunningham
Davis (KY)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Flake
Foley
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Holden
Hostettler
Hulshof
Hunter
Hyde
Inglis (SC)
Issa
Istook
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mollohan
Moran (KS)
Murphy
Murtha
Musgrave
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Otter
Oxley
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schwarz (MI)
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (NJ)
Smith (TX)
Sodrel
Souder
Stearns
Sullivan
Sweeney
Tancredo
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
ANSWERED ``PRESENT''--1
Sensenbrenner
NOT VOTING--5
Andrews
Carson
Kelly
Paul
Schakowsky
{time} 1631
Mr. McHUGH, Mr. ISSA, Mrs. DRAKE, Mr. GORDON, Mrs. MUSGRAVE, and Mr.
HOBSON changed their vote from ``yea'' to ``nay.''
Messrs. HINCHEY, FARR, SMITH of Washington, and SPRATT changed their
vote from ``nay'' to ``yea.
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore (Mr. Sweeney). The question is on the passage
of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 230,
noes 194, answered ``present'' 2, not voting 7, as follows:
[Roll No. 449]
AYES--230
Aderholt
Akin
Alexander
Bachus
Baker
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boustany
Boyd
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Cardoza
Carter
Castle
Chabot
Chocola
Cole (OK)
Conaway
Cox
Cramer
Crenshaw
Cubin
Cuellar
Culberson
Cunningham
Davis (KY)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
Dent
Diaz-Balart, M.
Doolittle
Drake
Dreier
Ehlers
Emerson
English (PA)
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Foley
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Holden
Hostettler
Hulshof
Hunter
Hyde
Inglis (SC)
Issa
Jindal
Johnson (CT)
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Murtha
Musgrave
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Otter
Oxley
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schwarz (MI)
Scott (GA)
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (NJ)
Smith (TX)
Sodrel
Souder
Stearns
Sullivan
Sweeney
Tancredo
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOES--194
Abercrombie
Ackerman
Allen
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Boucher
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Carnahan
Case
Chandler
Clay
Cleaver
Clyburn
Coble
Conyers
Cooper
Costa
Costello
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Diaz-Balart, L.
Dicks
Dingell
Doggett
Doyle
Duncan
Edwards
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Flake
Ford
Frank (MA)
Gonzalez
Green, Al
Green, Gene
Grijalva
Gutierrez
Harman
Hastings (FL)
Herseth
Higgins
Hinchey
Hinojosa
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
King (NY)
[[Page H7013]]
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren, Zoe
Lowey
Lynch
Maloney
Markey
Marshall
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McIntyre
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Price (NC)
Rahall
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schiff
Schwartz (PA)
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stark
Strickland
Stupak
Tanner
Tauscher
Terry
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wynn
ANSWERED ``PRESENT''--2
Burton (IN)
Sensenbrenner
NOT VOTING--7
Andrews
Burgess
Carson
Johnson, Sam
Paul
Schakowsky
Wu
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised there
are 2 minutes remaining in this vote.
{time} 1640
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________