Junk Fax Prevention Act of 2004

Mr. Speaker, pursuant to House Resolution 139, 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.

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 bill under consideration.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, our Nation is facing a health care crisis driven by uncontrolled litigation. Medical professional liability insurance rates have soared, causing major insurers to either drop coverage or to raise premiums to unaffordable levels. Doctors are being forced to abandon patients and practices or to retire early, particularly in high-risk specialties such as emergency medicine, brain surgery and obstetrics and gynecology. Women are being particularly hard hit, as are low income and rural neighborhoods.

H.R. 5, the HEALTH Act, is modeled after California's highly successful health care litigation reforms enacted in 1975 and known under the acronym MICRA. California'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, and authorization for defendants to introduce evidence to prevent double recoveries. The HEALTH Act also includes provisions creating a fair share rule by which damages are allocated fairly in direct proportion to fault, reasonable guidelines on the award of punitive damages, and a safe

harbor for punitive damages for products that meet applicable FDA safety requirements.

It is important to note that nothing in the HEALTH Act limits in any way the award of economic damages from anyone responsible for harm. Economic damages include anything to which a value can be attached, including lost wages, lost services provided, medical costs, the cost of pain-reducing drugs, and lifetime rehabilitation care, and anything else to which a receipt can be attached. Because of this, the reforms in the HEALTH Act still allow for very large, multi-million dollar awards to deserving victims, including homemakers and children, as the experience in California has shown.

Still, the California reforms have been successful. Information provided by the National Association of Insurance Commissioners shows that since 1975, premiums paid in California increased by 167 percent while premiums paid in the rest of the country increased by 505 percent. As Cruz Reynoso, the Democratic Vice Chairman of the U.S. Civil Rights Commission wrote recently in the Los Angeles Times, ``What is obvious about MICRA is that it works and it works well. Our California doctors and hospitals pay significantly less for liability protection today than their counterparts in States without MICRA-type reforms.''

The Congressional Budget Office has concluded that ``under the HEALTH Act, premiums for medical malpractice insurance ultimately would be an average of 25 percent to 30 percent below what they would be under current law.'' If California's legal reforms were implemented nationwide, we could spend billions of dollars more annually on patient care. Reform at the Federal level is necessary because the current crisis is national in scope.

According to a report by the Department of Health and Human Services, ``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. The system permits a few plaintiffs and their lawyers to impose what is in effect a tax on the rest of the country to reward a very small number of patients.'' Congress must act to let doctors treat patients wherever they are and to reduce health care costs for all Americans.

H.R. 5 will also save the Federal taxpayers billions of dollars. Former Democratic Senator George McGovern has written in the Wall Street Journal, ``Legal fear drives doctors to prescribe medicines and order tests, even invasive procedures, that they feel are unnecessary. Reputable studies estimate that this `defensive medicine' squanders $50 billion a year, enough to provide medical care to millions of uninsured Americans.''

According to the Department of Health and Human Services, ``If reasonable limits were placed on noneconomic damages to reduce defensive medicine, it would reduce the amount of taxpayers' money the Federal Government spends by $25.3-44.3 billion per year.''

Furthermore, despite accusations from the other side of the aisle, this is not a crisis caused by insurance companies. The President of the National Association of Insurance Commissioners wrote last month that ``To date, insurance regulators have not seen evidence that suggests medical malpractice insurers have engaged or are engaging in price fixing, bid rigging, or market allocation. The preliminary evidence points to rising loss costs and defense costs associated with litigation as the principal drivers of medical malpractice prices.''

We all recognize that injured victims should be adequately compensated for their injuries, but too often in this debate we lose sight of the larger health care picture. This country is blessed with the finest health care technology in the world. We are blessed with the finest doctors in the world. People are smuggled into this country for a chance at life and healing, the best chance they have in the world.

The Department of Health and Human Services issued a report recently that included the following amazing statistics. During the last half century, death rates of children and adults up to age 24 were cut in half and infant mortality rates have plummeted 75 percent.

Mortality among adults between the ages of 25 and 64 fell nearly as much and dropped among those 65 years and older by a third. In 2000, Americans enjoyed the longest life expectancy in American history, almost 77 years.

These amazing statistics just did not happen. They happened because America produces the best health care technology and the best doctors to use it. But now there are fewer and fewer doctors to use that miraculous technology or to use that technology where their patients are. We have the best brain-scanning and brain-operation devices in history and fewer and fewer neurosurgeons to use them. Unlimited lawsuits are driving doctors out of the healing profession. They are reversing the clock; and they are making us all less safe, all in the name of unlimited lawsuits and personal injury lawyers' lust for their cut of unlimited awards for unquantifiable damages. But when someone gets sick or is bringing a child into the world and we cannot call a doctor, who will we call, a lawyer?

As a Nation today, we have to choose. Do we want the abstract ability to sue a doctor for unlimited, unquantifiable damages when doing so means that there will be no doctors to treat ourselves and our loved ones in the first place? On behalf of all 287 million Americans, all of us who are patients, let us say yes to reasonable health care litigation management and pass the HEALTH Act.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Smith).

Mr. Speaker, I yield 2 minutes to the gentlewoman from Pennsylvania (Ms. Hart).

Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Gingrey).

Mr. Speaker, I yield 2\2/3\ minutes to the gentleman from Virginia (Mr. Forbes).

Mr. Speaker, I yield 2 minutes to the gentleman from Iowa (Mr. King).

Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Chocola).

Mr. Speaker, I yield 2 minutes to the gentlewoman from Tennessee (Mrs. Blackburn).

(Mrs. BLACKBURN asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield 1 minute to the gentleman from Pennsylvania (Mr. Gerlach).

Mr. Speaker, I yield 1 minute to the gentleman from Texas (Mr. Burgess).

Mr. Speaker, I yield 2 minutes to the gentleman from Illinois (Mr. Kirk).

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, the gentlewoman from Texas (Ms. Jackson-Lee) displayed a chart that indicated that 61 percent of the malpractice cases were either settled or dropped, and she insinuated that that was for free. It is not for free. It costs money to defend those suits, to go to court, to file answers, to do whatever discovery is necessary in order to convince the plaintiff that they do not have a case, and those costs get folded into the liability premiums that the physicians have to pay.

Who gets off free? It is the plaintiff that gets off free because the plaintiff is on a contingency fee and if there is no recovery then the plaintiff does not have any lawyer fees at all.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself 1 minute.

We have heard an awful lot about the impact on insurance premiums, and I just want to read from the CBO estimate, the cost of this bill. The CBO estimates that under this bill premiums for medical malpractice insurance ultimately would be an average of 25 to 30 percent lower than what they would be under the current law. However, other factors noted above may affect future premiums, possibly obscuring the anticipated effect of the legislation.

The effect of H.R. 5 would vary substantially across States, depending upon the extent to which a State already limits malpractice litigation. There would be almost no effect in malpractice premiums at about one-fifth of the States, while reductions in premiums would be substantially larger than the overall average at about one-third of the States.

What this means is that the reduction in premiums will be much greater in the States where there is a crisis, and what this bill does is that it provides access to medical care in States where high risk specialists are closing their practices because they cannot make enough money to support themselves and to pay their liability insurance premiums.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Stenholm).

(Mr. STENHOLM asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Georgia (Mr. Scott).

Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Pence).

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, I think there is a little bit of confusion around about the noneconomic damage limit. There is a specific provision in H.R. 5 that says no provision of this act shall be construed to preempt any State law whether effective before, on, or after the date of enactment of this act that specifies a particular amount of compensatory or punitive damages or the total amount of damages in a health care lawsuit, regardless of whether or not such monetary amount is greater or lesser than that that is provided under this act.

Now, every one of the 50 States is free to adjust the $250,000 limit on noneconomic damages upwards or downwards by enactment of the State legislature. My State limits it at $350,000. This is not touched by the HEALTH Act whatsoever. So if anybody thinks that this act is a straitjacket, the legislature is free to change it.

Mr. Speaker, I yield 2 minutes to the gentlewoman from Connecticut (Mrs. Johnson).

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, I have been listening intently to this debate. Many of my friends on the other side of the aisle apparently have not been listening at all to the debate, and I just want to rebut a couple of their points.

First, they say this will not reduce insurance premiums. They were right in that it will not reduce insurance premiums by law, but the CBO says that overall insurance premiums will be reduced by 25 to 30 percent and more in States where there is a greater problem. That is the market working. That is the economics working on it. But those premiums are not going to be reduced if the current law stays where it is.

Then we have heard time and time again about $250,000 in noneconomic damages. This bill gives each State the right to adjust that amount to a greater or a lesser amount. So the State legislatures can make a determination on whether $250,000 is proper or not. If they fail to do so, then the $250,000 in the HEALTH Act is the law for that State.

Finally, we have heard ``Physician, heal thyself,'' and that a small number of physicians are responsible for the vast majority of malpractice claims. Let me say that the current tort liability system provides a huge disincentive for doctors to talk about problems

amongst themselves and to get the collective benefit of a number of doctors' opinions on how to treat a patient.

There has been a study that asked, ``Generally speaking, how much do you think the fear of liability discourages medical professionals from openly discussing and thinking about ways to reduce medical errors?'' Mr. Speaker, 59 percent of the physicians replied, ``A lot.''

If we pass this law, we will be seeing more collectively doctors' brains put together to deal with difficult cases, to talk about mistakes and make sure they do not happen again. This bill should be passed. I urge an aye vote on the bill.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise today in strong support of H.R. 5. I am joined by every major medical association representing the doctors of America across this country and across the very specialty organizations that are so deeply affected by the rising cost of medical malpractice insurance that many of them are leaving the practice that they were trained to do.

I thank the gentleman from Pennsylvania (Mr. Greenwood) and the gentleman from California (Mr. Cox) for drafting this legislation. I certainly thank the gentleman from Wisconsin (Mr. Sensenbrenner) and the staff of the Committee on the Judiciary for working so closely with the staff of the Committee on Energy and Commerce to advance the cause of this very important bill.

We will hear many stories today about the victims and how they are harmed in the health care system. And, of course, we cannot dispute the fact that many doctors make human errors. In fact, yesterday we indicated that the To Err Is Human report encouraged us to pass a medical errors bill, which we passed yesterday on the floor, which is designed to begin sharing information to reduce the number of those errors and to make sure that doctors are not hauled into court every time they help one another when trying to reduce the number of errors in the system.

We know there are victims of medical errors, but we do not often hear about the victims of the medical malpractice system gone awry. They are the victims who get denied access to health care in very critical moments because some doctor could not get his insurance renewed because premiums were too high, some doctor left the practice, some medical clinic, some institute closed down in the community, the stories we heard from victims yesterday here in Washington, D.C.

One wife and children were here talking about how the husband and father was in a horrible automobile accident and went to the hospital, only to find out the neurosurgeon who should have been there to help him had lost coverage 4 days earlier and was no longer at the hospital to service them. That gentleman suffers massive brain disabilities as a result of not having someone there to serve him.

Many pregnant women look forward to a natural childbirth, only to find out that doctors are increasingly recommending C-sections, and doctors who deliver babies are getting out of the business because they cannot afford the skyrocketing liability coverage policies that they need.

60 Minutes did a piece on one of those doctors who gave his whole life, his career to delivering babies. He cannot do it any more. He is doing prenatal work now because he cannot afford the awful cost of liability coverage.

So not only are these doctors harmed because they cannot practice the professions they love and worked so hard to learn, but the patients that come to them are increasingly being harmed. Doctors are moving from one community to another, moving to States that have liability protection because they have learned that they cannot afford the liability coverage in the community they were raised and educated in. They have to move from Mississippi to Louisiana, for example, and Mississippi loses the availability of those good physicians.

Those hidden victims, patients who cannot get care, who suffer from a lack of access to health care, are just as real, just as injured as any victim who has been injured by medical error or malpractice in this country. We have to do something about this. It is a broken system. When the health care system breaks down, it is our responsibility to make sure that we fix it, and we fix it so it does not just work in California or Louisiana, it works across America.

Our families are spread all over. My children are living in all kinds of States. I want them to be able to walk into a hospital and find somebody ready to serve them. I do not want them to walk into a hospital in Mississippi and find out a needed doctor is not there. That is the task we have before us today. As we move this legislation forward, we will complete the task we started yesterday, on the one hand beginning to cure that awful problem of medical errors within the system, errors which produce injury, and recovery is possible under our legal laws; and, secondly, to make sure that the legal liability system is fixed.

What are we doing here? We are recommending to the Congress and to the Nation nothing more, nothing less than the experience of the great State of California, which in 1975 adopted the law upon which H.R. 5 is based, a law which has kept liability premiums in California at one- third the increase level which has been experienced across the country. The other side of the aisle have been debating whether this will reduce insurance premiums. I tell them, go to CBO. CBO has estimated a 25 to 30 percent reduction in insurance costs across America if we pass H.R. 5.

Mr. Speaker, guess what, my State will not get that benefit. We already have the benefit of lower premiums because of reforms like this. Those premium reductions will go to States that do not have the benefit of a State law like California and Louisiana. Therefore, the reductions in premiums are likely to be higher in those States where there are no caps on liabilities.

One final thought. For those Members that are arguing that we are somehow capping the entire liability award, we are doing what California did with a Democratic governor and a Democratic legislature: We are only capping the noneconomic damages. That is the only thing we are capping. We are capping it at $250,000, but we are telling California and Massachusetts and Louisiana, or any other State in the Nation, if they do not like that cap, they can adopt their own cap. They can adopt a higher or lower cap. This legislation preserves for the States the right to adopt the cap that works for them.

But this legislation for the first time will say to everyone in this country, we are all entitled to have a health care professional available to us when we need it who otherwise would not be here because of a liability system that is so broken that it drives decent health care workers out of business and out of their professions at our loss.

Mr. Speaker, this legislation has to get passed and has to get passed soon. I urge Members to adopt this legislation today.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, we would not help this debate by arguing that the other side is catering to trial lawyers. That is not going to help this debate. Let us argue on the facts for a change.

The gentleman from Ohio (Mr. Brown) may not agree with what happened in California, but this is what Senator Feinstein said. ``I believe MICRA is the reason rates have gone down.'' That is a California Senator talking about her State.

Mr. Speaker, I yield 2 minutes to the gentleman from Missouri (Mr. Blunt).

Mr. Speaker, I am pleased to yield 1\1/2\ minutes to the gentleman from Florida (Mr. Stearns), chairman of the Subcommittee on Commerce, Trade and Consumer Protection of the Committee on Energy and Commerce.

Mr. Speaker, I am delighted to yield 2 minutes to the gentleman from Florida (Mr. Bilirakis), chairman of the Subcommittee on

Health of the Committee on Energy and Commerce, who has done such great work on this bill.

Mr. Speaker, I am delighted to yield 3 minutes to the gentleman from Pennsylvania (Mr. Greenwood), chairman of the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce and the author of this legislation.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I only want to point out to the House that the substitute offered by the gentleman from Michigan (Mr. Dingell) in subcommittee and full committee was defeated on a bipartisan vote in full committee of 30 noes to 20 yeas.

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from California (Mr. Cox).

Mr. Speaker, I have only one additional speaker to close, so I would urge my friend to use up the balance of his time.

Mr. Speaker, I want to quickly point out, our own Congressional Budget Office estimates a 25 to 30 percent reduction in malpractice insurance costs and a savings to the U.S. Government alone of $18.1 billion if this bill passes.

Mr. Speaker, I yield the balance of our time for closing to the gentleman from New Jersey (Mr. Ferguson).

I do, Mr. Speaker.

I first yield to the gentleman from Nevada (Mr. Gibbons) for a colloquy.

Mr. Speaker, I thank the gentleman. Subparagraph 11(c)(1) says: ``Any State law, whether effective before, on, or after the dates 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 under this Act.''

Nevada's $350,000 cap generally fits the terms of this subparagraph and would generally apply. The handling of the exceptions is not specifically stated in the legislation. I would be prepared to work with the gentleman to discuss these exceptions as we move further in the process of this legislation.

Mr. Speaker, the Dingell motion offers us a different solution than H.R. 5. Interestingly enough, not a single one of the 175 health care organizations and associations, doctors across America, endorses that solution.

But they have all endorsed H.R. 5. And let me explain to you why the doctors and the health care organizations have not endorsed the Dingell solution and have endorsed H.R. 5. By the way, the Committee on Energy and Commerce took a vote on the general substance of this motion to recommit and voted 30 to 20 against it and it was not a party line vote. Let me tell you why it was defeated, why so many organizations opposed it. Because what it generally offers is not insurance reform but a Federal commission, another bureaucracy to study the problem and to make recommendations one day to us.

We have studied this problem ad infinitum. We have held numerous hearings. The States have experienced this problem going back 25 years and they

have offered us a solution. We are following their lead after 25 years of experience. Do we really need another Federal commission? No insurance reform, just a commission? And then to solve the problem of high malpractice liability coverage, this is the Dingell motion to recommit solution, not a single limitation at all on recoveries, unlimited recoveries as in current law, not a single cap on any kind of damages. Instead we get an attorney's certificate of merit. An attorney's certificate of merit. We get the trial lawyer to say, I think I have got a good lawsuit, and that is the solution.

Mr. Speaker, when an attorney signs a petition, when he signs the most egregiously incorrect, horribly drafted, when he signs the most inappropriate false petition, when he signs his name on it he is attesting to the validity of that petition. It may be a bad petition. It may be the most horrible lawsuit ever filed. It may get dismissed on the first motion to have it dismissed, but when he signed his name on it, he said it was a good petition.

So what does the Democratic motion to recommit tell us? We are going to solve this problem in America by having the same attorney sign a certificate that he has got a good suit, that he has got a good petition. Wow, that will really solve the problem.

I think you see why now that solution has been rejected by 175 organizations representing the doctors, the nurses, all the organizations across America who are crying to us for relief, who are telling us we are tired of petitions signed by lawyers that have no merit, that drive up medical malpractice suits, that drive us out of business and deprive the citizens of our country needed medical care when their loved ones need it the most. They are crying to us for help and the victims that came to us in our committee room and said, for God's sake, it is horrible when somebody commits a medical error, but it is also terrible when the doctor is not there when my child is sick, when my husband has been horribly mutilated in an automobile accident, when my daughter is trying to deliver her first child and there is no doctor there willing to do it because the cost of liability insurance is too high. They are crying to us to do something today. The motion to recommit tells us, well, let us just trust the lawyers and create a Federal commission. Whoopie-ding.

What do we tell those victims when we said all we did was trust the lawyers and created another Federal commission? I did not come here to create new Federal commissions to tell us what the problems were and what the solutions were. I came here like the rest of you, to figure out what the problems were and to solve them. H.R. 5 solves this program and deserves to be passed. This motion to recommit needs to go down.

Mr. Speaker, I ask unanimous consent to control the time of the gentleman from Michigan (Mr. Conyers).

Mr. Speaker, it is my pleasure to yield 3 minutes to the distinguished gentlewoman from California (Ms. Waters), a member of the Committee on the Judiciary and a ranking member on the Committee on Financial Services.

Mr. Speaker, it gives me great pleasure to yield 3 minutes to the distinguished gentlewoman from California (Ms. Lofgren), a senior member of the House Committee on the Judiciary and Committee on Science.

Mr. Speaker, it gives me great pleasure to yield 1 minute to the distinguished gentlewoman from the Virgin Islands (Mrs. Christensen), a physician and an advocate for good health care for all Americans. We thank her very much for her leadership.

(Mrs. CHRISTENSEN asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield myself 25 seconds.

I beg to differ with the gentlewoman from Tennessee. I wish her remarks were accurate, in noting from the American Insurance Association a comment that says, ``Insurers never promised that tort reform,'' which is what medical malpractice, what H.R. 5 is, ``would achieve specific premium savings.'' So in fact, the doctors will not be helped from this legislation, H.R. 5. The only persons that will be helped will be the insurance companies.

Mr. Speaker, it gives me great pleasure to yield 1 minute to the distinguished gentleman from Missouri (Mr. Clay), a fighter for the rights of many and an advocate for good health care for all Americans.

Mr. Speaker, I yield myself 15 seconds.

The playbook is being said over and over again. Victor Schwartz on tort reform says that many tort reform advocates do not contend that restricting litigation will lower insurance rates, and I have never said that in 30 years.

Mr. Speaker, I will not vote for H.R. 5, because as it is, it does nothing to decrease the premiums our Nation's physicians are burdened with. It does nothing to decrease the number of frivolous lawsuits. It does nothing to decrease the amount of malpractice being inflicted upon the American people, by bad doctors who are jeopardizing the lives of their patients, and driving up the insurance costs of their colleagues. And it does nothing to protect the rights of those suffering in the wake of an act of medical negligence.

I have doctors in my district, who are struggling with high malpractice insurance premiums. In some regions, for some specialties, those premiums can be outrageous. If this bill becomes law, the caps on claims from injured patients will put a lot of money into the coffers of insurance companies. I offered an amendment yesterday in the Rules Committee that would have forced insurance companies to pass at least half of that money down to physicians in the form of reduced premiums. That just makes sense, if this bill is really intended to decrease premiums. But that amendment will not receive a vote today. That fact lays bare the claim that this bill is anything more than a gift to the insurance industry.

This bill has many troubling aspects and omissions. For example, noneconomic and punitive damages are capped at $250,000 and there is no provision to have this arbitrary number rise over time with inflation. So, we know that the value of the dollar will go down over time. Do we also feel the value of a human life, or of a child's pain and suffering will also go down over time? I surely do not. This could have easily been changed, but it was not.

Another aspect of this bill that I feel is morally repugnant, is in its valuing of rich people's lives more than poor people's, or children's, or stay-at-home mothers'. In the case of truly heinous acts of negligence, a judge and jury can award a damaged person with punitive damages. Punitive damages, as the name implies, are meant to punish egregious wrong-doers. This bill caps punitive damages at $250,000 or twice the economic damages, whichever is higher. So if a CEO with a high salary is injured and can't go back to work, his economic damages could be in the millions, and therefore through punitive damages--the perpetrator would be punished severely. On the other hand, if the injured is a child or a stay-at-home mother, the economic damages would be low, and the punitive damages would be capped at $250,000. Why would the U.S. Government, dedicated to the idea that every person should be treated as equal, say that doctors who hurt rich people should be punished more than those who hurt poor people--that the value of a poor person's life is less--that it is OK to take bigger risks in treating poor people? This is absolutely morally bankrupt.

And the bill does nothing to stem the tide of frivolous lawsuits. This bill, by definition, cuts awards to those people who a jury decided were not frivolous. This is short-circuiting our judicial process.

What in the name of God and country are we doing giving a gift to insurance companies, while people are suffering and access to medical care is threatened? I will vote against H.R. 5 and urge my colleagues to do the same.

Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. Berman), a distinguished senior member of the Committee on the Judiciary who knows about California medical malpractice law firsthand.

Mr. Speaker, I yield 1 minute to the distinguished gentleman from New Jersey (Mr. Pascrell), one who has been a fighter for physicians and first responders.

Mr. Speaker, I yield the gentleman from New Jersey (Mr. Pascrell) 10 seconds to respond.

Mr. Speaker, I yield 3 minutes to myself.

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I want to answer and I thank the distinguished speaker.

Mr. Speaker, I am going to ask the young lady just to come closer. We have the personal touch here this afternoon.

I want to answer the question that has been raised. This is over and over again about whose problems we are solving. Can I give my friends the real facts?

Sixty-one percent of the cases are dropped. That means as you go into the courthouse, and those of you who have been injured, you have your cases dismissed 61 percent. Plaintiffs only get 1 percent of the verdicts across the Nation. Defense verdicts. That means they rule on behalf of the HMOs, the doctors, the hospitals, 6 percent, and settlements are 32 percent.

H.R. 5 is a bill that does not harm the doctors and the physicians, which we do not want to harm, but it literally destroys the victims. What it does is when the verdicts come it injures the victims because you tell them that they cannot get a recovery.

There is no crisis in medical malpractice insurance. What the crisis is is the insurance companies who refuse to reduce the payments.

So let me show you who will be hurt by H.R. 5. Nathaniel will be hurt by H.R. 5. This is the face of H.R. 5. Why? Because Nathaniel was 6 weeks old when Nathaniel became brain damaged because he was not diagnosed with jaundice. In the Democratic substitute we eliminate cutting off Nathaniel's damages. We take the caps off the noneconomic damages. Is it not interesting that physicians who want to have their rates reduced do not get any relief directly from the insurance payoff because this is not access to medical care. This is insurance payoff day.

What we do for Nathaniel in the Democratic substitute is we say to the doctors, if you are good doctors, we want the savings that have been given to those to be reduced. I had an amendment that said reduce it by 50 percent. Put 50 percent of the savings and reduce the premiums of the doctors. This is real medical malpractice response. This puts the doctors in the rural communities in New Jersey, in Mississippi, in Texas and New York in the innercity. This helps the babies like Nathaniel.

And then to my dear friends, what about the States rights? What about the States that want to make their own determinations to protect their own citizens, to ensure that Nathaniel does not lay languishing with brain damage, and because he was only 6 weeks old, the noneconomic damages that would provide for him for the rest of his life were cut off, the pain and suffering damages were cut off at $250,000 in today's time? So besides cutting us off from having amendments, besides denying us a substitute--a legitimate way to discuss a reasonable response-- this is what we have today: A false bill that addresses a false issue and Nathaniel languishing in brain damage. Our bill would have provided Nathaniel for getting his day in court, providing for his mother and father the pain and suffering they are experiencing while he languishes without hope.

Payoff day for insurance companies. I stand against it. Vote against

Mr. Speaker, I yield myself 25 seconds to respond.

The Republicans have represented that H.R. 5 is to reduce the premiums of physicians. Let it be perfectly clear, and I stand by my document, 61 percent are dismissed, but let it be perfectly clear that nowhere will the physicians have premiums reduced and more doctors be able to practice because we pass H.R. 5, which is a payout to the insurance companies. I maintain that position and it is accurate.

Mr. Speaker, I yield 1\1/2\ minutes to the distinguished gentleman from Pennsylvania (Mr. Hoeffel), who experiences firsthand what happens with a

crisis in his State. He is a leader on these issues.

Mr. Speaker, I yield myself 10 seconds.

The real point is that the insurance companies have specifically said they will not reduce premiums with the passage of H.R. 5.

Mr. Speaker, I yield 1 minute to the distinguished gentleman from Illinois (Mr. Davis), who knows hospitals because they are in his district, an advocate for good health care for all Americans.

(Mr. DAVIS of Illinois asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 1 minute to the distinguished gentleman from Rhode Island (Mr. Langevin), who has faced many issues that deal with the needs of hospitals and his own constituents and good health care, and I thank him for his leadership.

(Mr. LANGEVIN asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 1 minute to the gentleman from Massachusetts (Mr. Tierney), an individual who has stood firm on the rights of patients, the rights of victims.

Mr. Speaker, I yield 1 minute to the distinguished gentleman from Washington (Mr. Inslee), who knows what it is like to have victims denied economic damages under this legislation.

(Mr. INSLEE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I wish this bill would help cure that problem.

Mr. Speaker, I yield 1 minute to the gentlewoman from California (Ms. Linda T. Sanchez), one of our newest Members, and a new member on the Committee on the Judiciary, who we are very proud to have because she has been a real fighter for patients' rights.

Mr. Speaker, I ask unanimous consent that the gentleman from Massachusetts (Mr. Delahunt) be allowed to manage the balance of the time on the minority size.

Mr. Speaker, I yield myself such time as I may consume, and it is to make this point: That the majority worked very well with the minority on this issue. The gentleman from Michigan (Mr. Dingell) and I and all the Members on our side want to thank the gentleman from Michigan (Mr. Upton) and the gentleman from Texas (Mr. Barton) for their cooperation on this legislation.

I was the principal House sponsor of the original junk fax bill back in 1991. That bill worked quite well, but we need to update it, and this legislation will help to give the additional protections to American consumers so that they can protect themselves against the tsunami of unwanted junk faxes which go into their homes.

After all, what could be worse than to have something come into your home, consume paper in your fax machine that you have to pay for, and then not have an ability to be able to stop that person from sending any more junk faxes into your home?

That is what this bill will help to ensure does not occur in our country. The provisions in it, I think, are solid, they are sound, and they are the product of a bipartisan bill.

Mr. Speaker, I rise in support of this bill. This legislation reflects a compromise that was negotiated out between both Democratic and Republican Members over a number of weeks and I encourage Members to support this legislation today.

First, let me state that I was the principal House sponsor of the Telephone Consumer Protection Act (TCPA) of 1991, which contained the original junk fax prohibition. Congress endorsed my call in 1991 for a general prohibition against junk faxes because of the intrusive nature of that form of advertising. Junk faxes represent a form of advertising in which the ad is essentially paid for by the recipient. The recipient of a junk fax pays for the fax paper and printer costs, pays in the form of precious lost time as the machine is tied up, and also in the form of the clutter in which important faxes are lost in the midst of a pile of junk faxes.

I think it is important to emphasize that the bill we bring to the House floor today retains the general prohibition against sending junk faxes. In other words, sending an unsolicited facsimile advertisement is against the law. We are not changing the law or the policy with respect to this--sending a junk fax was illegal and remains illegal under this bill. Neither are we changing any of the statutory enforcement mechanisms available to the FCC or consumers in this bill.

The legislation we are proposing will address certain provisions affecting an exception to the general prohibition against sending junk faxes and will improve the bill in these areas. Since the FCC originally implemented the 1991 junk fax provisions of the TCPA, Commission regulations contained an exception for faxes that were sent because an ``established business relationship'' existed between the sender and the recipient. These regulations were in place and the ability to send junk faxes based upon the exception was permitted by the Commission for over a decade.

This concept of an ``established business relationship'' permitted a commercial entity to invoke its ability to prove such a relationship with a consumer in order to contact that consumer in spite of the general prohibitions of the law. The FCC has more recently determined that the term ``established business relationship'' was not specifically included in the provisions addressing junk faxes in the TCPA and therefore changed its regulations. The new rules require ``written'' permission from consumers and these new rules have been stayed from going into effect until January of 2005.

The legislation before us is designed to put specific language into the statute permitting an ``established business relationship'' exception to the general prohibition against junk faxes. Many businesses have complained that written permission is too onerous a regulatory requirement for many of the faxes that they stipulate are routinely sent in the ordinary course of business, presumably without complaints from the recipients of such faxes. The draft bill is responsive to these complaints.

We must recognize, however, that many small businesses and residential consumers find many of these unsolicited faxes, including those faxes sent because a valid claim of an ``established business relationship'' was being asserted in order to send them, to be a considerable irritant and strongly object to receiving them. The legislation, therefore, addresses additional issues, including putting into the statute an ``opt-out'' ability for consumers to object to receiving junk faxes, even when such faxes are sent to them based on an established business relationship. For the decade that the original FCC regulations were in place, many consumers simply were not aware of the FCC's established business relationship exception, nor did very many know they had an ability to stop these faxes or any clear way in which to effectuate such a request.

The bill the House is considering includes new provisions requiring an ``opt-out'' notice and policy that we will add to the statute. The bill requires junk faxes to include, on the first page, a clear and conspicuous notice to consumers that they have the right not to receive future junk faxes from the sender. Second, the notice must include a domestic contact telephone number an fax number for consumers to transmit a request not to receive future faxes. Third, the bill stipulates that consumers must be able to make such requests during normal business hours. Fourth, the bill requires the notice to conform with the Commission's technical and procedural standards for sending faxes under Section 227(d) of the law, which include the requirement to identify the entity sending the facsimile advertisement.

This is an important provision because one of the biggest complains from the FCC at the hearing, and with other law enforcement entities and aggrieved consumers, is that they have had difficulty legally identifying the source of many of the unsolicited faxes. In addition, there were some senders of junk faxes who evidently and falsely believed that simply because they were sending an unsolicited fax based upon their ability to prove they had a ``established business relationship'' with a consumer, and thus did not have to abide by the general prohibition against such faxes, that this also meant they did not have to abide by the other FCC and statutory technical rules. These statutory and regulatory rules include requirements that junk fax senders identify themselves in such faxes. Law enforcement entities and consumers need to be able to find the legal business name or widely recognized trade name of the entity sending a junk fax in violation of the rules in order to pursue enforcement actions.

Fifth, this bill makes it clear that a consumer can ``opt-out'' of receiving faxes to multiple machines, if they have more than one, rather than opting out solely for the particular machine that received the junk fax. Sixth, in this

legislation the Commission is tasked with exploring additional mechanisms by which a consumer might opt-out, such as in person or by e-mail or regular mail, and also requests that the Commission established cost-free ways by which consumers can opt-out. These notice and opt-out requirements all represent new provisions to the law for which existing enforcement remedies will apply.

This legislation also includes the ability for the FCC to limit the duration of an established business relationship notwithstanding the fact that the law would include an opt-out notice and ability which avails consumers of the right to opt-out of receiving faxes at any point in time. I believe this is an important concept and one which deals with the legitimate expectations of consumers. If a consumer buys something from a store, consumers might expect to hear from that store within a reasonable period of time under the notion that they have an established business relationship and the store was sending an unsolicited fax based upon that fact. Over time however, a consumer's expectation changes and there is a time after which the established business relationship can be said to have lapsed.

There are some who believe that no time limit is necessary, in light of the fact that we are now adding a clear way by which consumers may opt-out of receiving junk faxes at any time. There are others who believe that a time limit is necessary for consumer protection, and many of us have different views over what period of time is reasonable. While it is not the preferred resolution for any of us, the bill contains a new provision which tries to bridge the gap between our different perspectives on this issue. The legislation will permit the Commission to put in place a sunset of the established business relationship, after the FCC implements the new opt-out policy and it gets a track record on what is happening in the marketplace. In particular, the Commission will examine consumer complaints to the agency during this period with an analysis as to whether junk faxes from entities with whom consumers have an established business relationship constitute a significant number of complaints. If so, the Commission may establish a limit, between 5 and 7 years, for the duration of an established business relationship. If it does so, then after the limit, entities would not be able to send junk faxes because they can prove an established business relationship with a consumer. In other words, the relationship would end for purposes of the exception and the policy would revert back to the general prohibition against sending the junk fax for that consumer.

Finally, I think it is important to take a comprehensive look at overall enforcement of the junk fax law. I am concerned that some of the most egregious junk fax operations, the entities that broadcast such faxes to millions, often escape enforcement. They may be found guilty, cited by the FCC and sometimes fined--but often it appears as if they either ignore the fines, skip town, or live overseas. For these reasons the bill includes provisions that will give us an annual accounting of the FCC's enforcement activities as well as a GAO analysis of what additional enforcement tools may be necessary to provide sufficient deterrent, especially to the most egregious and abusive junk fax senders.

Again, I want to commend Chairman Upton and Chairman Barton for their work on this bill, and in particular for their willingness and openness in working with me and Mr. Dingell in crafting the compromises needed to achieve consensus. I encourage all the members to support it.

Mr. Speaker, I thank the gentleman very much for yielding that time.

I am very delighted to stand before a distinguished House of Representatives to make this plea.

I support this measure. I come from Georgia and represent a new Congressional district that represents one of the fastest growing areas in this country. It is the 13th Congressional District. I am here because of that growth, and I am also here to tell my colleagues that there is no greater pressing issue facing my district and the people of Georgia than this health care crisis that we are faced with today in medical liability insurance.

Our doctors are suffering immensely, not only in terms of having to cut back on the quality of services that they have to offer but also in our medical schools, where they are preparing our doctors for the future. Many of the medical schools in my State are saying now that many of the students are having second thoughts about even coming into the medical profession; 17.8 of the 2,800 physicians in Georgia are already reporting that they are contemplating, contemplating cutting back in their critical services for at-risk procedures, and nearly 2 percent have even indicated that if things do not change they are moving out of the State of Georgia.

I think we all know that Georgia is one of 18 States that has the highest, most significant medical malpractice insurance premium costs, and it is costing our State dearly. I am here to speak for those doctors and the dentists and the hospitals in that 11-county area that I represent around the City of Atlanta that is faced with this crisis, and I hope that this Congress will hear us as we cry out in Georgia on behalf of our physicians, our dentists, all of our health care providers, give us some relief.

I know this H.R. 5 before us is not a perfect bill. Nothing is perfect. Who amongst us or what amongst us is perfect? But it is a start. It is a beginning, and it is not incumbent upon us to complete the task, but neither are we free to desist from doing all we possibly can. That is what the American people are expecting of us.

Take this first step. Let us move this process forward. When it gets to the Senate we can work to perfect it even better. I urge my colleagues' vote on this very important matter, and let us bring better health care to our people of Georgia and the Nation.

I am here representing the patients, doctors, hospitals, and health care providers in the 13th Congressional District in Georgia. This is a new district, which encompasses parts of eleven counties due to the tremendous growth in this part of the state. It is also a diverse district, including county, regional, and private hospitals, several health care facilities, and hundreds, if not thousands of physicians and dentists, and other health care professionals. Georgia has been designated as one of 18 states facing a medical liability crisis and since Georgia's health care industry is being threatened by this crisis, I have decided to support the patients . . . and the doctors . . . and the hospitals . . . by supporting H.R. 5.

Earlier this year, the Georgia Board for Physician Workforce, the state agency responsible for advising the Governor and the Georgia General Assembly on physician workforce and medical education policy and issues, 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 reduce 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. 630 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?

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 have to address the issue of medical malpractice insurance and the extremely high cost of health care. We have to do something. This bill is not the complete answer. It is not the final answer. It is not the best answer but it is a start. We do have to do something and we have to do it now. 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% 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.

In addition, Georgia is heavily dependent on other states to train physicians. Approximately 70% 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. The high cost of medical malpractice insurance for doctors and hospitals harms mostly those communities who serve minorities and low income patients. The physicians and hospitals who depend on Medicare reimbursements and who serve the 44 million uninsured Americans everyday 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 2 tier health care system. We must do something now. We must support the patients who cannot speak for themselves. We must support our doctors and hospitals and we must pass relief for them today.

It is important for the House to pass a bill that can go to the Senate for consideration. I hope to perfect the bill even more as it moves through the legislative process. It would be a mistaken not to do anything. In fact, I have never seen a problem solved by doing nothing.

We must help doctors, physicians and dentists, hospitals, other health care providers,

and 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, we are sending a clear and salient message to the insurance industry, which sets the premium rates for medical malpractice insurance and that message is: Bring Down the Cost of Medical Malpractice Insurance for Physicians and Hospitals.