Patients First Act of 2003

Mr. President, I object.

Mr. President, let me first commend my colleague, Senator McConnell of Kentucky, for his presentation and his leadership on this issue. Though we disagree on some very fundamental parts of this issue, I have the highest regard and respect for his ability and I look forward to working with him.

What occurred about 45 minutes ago was that Senator Frist, the majority leader, came to the Chamber and filed a motion to proceed, and I objected. What Senator Frist was asking was that the Senate stop its business and move directly to S. 11 relative to the issue of medical malpractice. Because I have filed an objection, Senator Frist indicated he would file a cloture motion. After collecting the necessary signatures from our colleagues, this will lead to a vote on cloture come Wednesday.

If Senator Frist can gather some 60 votes, he will be in a position to then move to this bill and begin the debate and the amendment process. That is the ordinary course of the procedure.

An obvious question is why I objected. An issue clearly as important as medical malpractice should be considered by the Senate. There is no doubt in my mind. But I would object to the fact that this bill comes to the floor without any hearing before a Senate committee. Consider that. The most revolutionary and dramatic reform of tort law in America, in modern memory, will come to the floor without the normal hearings, witnesses, opportunities to amend, opportunity to work out compromises and negotiate, all part of the legislative process. So why then does a bill of this gravity and importance only come to us in this circumstance where there is no chance for us to work out ways to resolve our differences? Why, I cannot explain that to my colleagues. For a person like myself who served for some time in the House and the Senate, it seems to me that the Republican leadership in control of the committee structure would not object to taking this bill to one of their committees, having hearings, bringing in the doctors, the lawyers, the victims, the insurance companies, the pharmaceutical companies, and the companies that make medical devices. Let's hear about this problem in its entirety. But, no, they object to that. They do not want hearings. They do not want the people of this country to hear both sides of the story. They would rather come to the floor and present their side with a take-it-or-leave-it approach. I do not think that is fair. I think we can and we should do better.

Let me say at the outset that though I have objected and though most major medical associations, like the American Medical Association, support this bill, I want to make clear my high regard for the medical profession. Time and time again, in my life and the life of my family, I have turned to some of the best and most talented medical professionals in America. I have entrusted them with the most important things I have on Earth--my wife, my children, and the people whom I love.

Time and again I have found them to be selfless, extraordinarily talented, compassionate men and women who give the medical profession a good name every single day. Thank God they are there, and I want them to continue to be there. So I do not come to this Chamber as a doctor basher, as someone who thinks doctors are overpaid or frankly should be held to task for this, that, and the other. Not at all. Like most Americans, if I, my wife, or children are ever sick, I want to look up into the eyes of the best and brightest doctor in America helping a member of my family through a medical crisis. My family and I have been lucky in our lives. Many times I think we have had the best and the brightest, and I still continue to thank them as I take a position with which many of them will not agree.

I believe there is a fundamental unfairness in the current situation with medical malpractice. I have seen that unfairness in my State. Senator McConnell has noted it in many other States. The largest medical malpractice insurance company in Illinois, the Illinois State Mutual Insurance Company, raised its rates last week 35 percent on doctors for medical malpractice insurance. Many lines of insurance are going up in cost, health insurance and other insurance, but this is an extraordinary increase.

Two neurosurgeons in Joliet, IL, have given up the practice of brain surgery because of malpractice premium increases. They have left the city's only two hospitals without a full-time coverage for head trauma cases. Senator McConnell is right; Victims of automobile accidents and trauma need immediate help and immediate care.

Memorial Hospital in Belleville, IL, near the area where I grew up, has lost three OB/GYN physicians in the past 6 months due to increases in rising malpractice premiums. I met one of them. I met one during the course of the campaign last year. She came to me and said: Senator, I just cannot continue to pay these premiums and deliver babies. And I believe her.

Eduardo Barriuso of Humboldt Park, an obstetrician in my State of Illinois, pays $104,000 a year for malpractice insurance. He says he earns $175,000 a year treating mostly poor people, Medicaid patients. He pays $104,000 in malpractice, and has $175,000 in income. Like other doctors who treat patients who depend on Medicare or Medicaid or insurance through an HMO, Dr. Barriuso cannot pass on his higher insurance rates to his patients.

The Family Health Partnership Clinic in McHenry, IL, was almost forced to close after its insurer left my home State. They found new insurance at four times the cost. The clinic serves the uninsured and operates off the volunteer services of physicians. It now pays $28,000 a year for malpractice insurance, up from $7,000 last year, for a clinic serving poor people.

A Chicago area OB/GYN is studying to obtain his pharmacist license. He has decided he cannot continue as a doctor. He thinks he can make a better life as a pharmacist. He is now paying $115,000 for his liability insurance. I would readily concede the point made over and over by Senator McConnell that these malpractice premiums are not fair. They are unfair particularly to certain specialties--neurosurgery, trauma care physicians, OB/GYN, and several others who have been hit hard by these increases. That is just not fair.

I suggest there is another unfairness involved in this discussion, an unfairness which my colleague from Kentucky never conceded. Frankly, there is an unfairness in this bill when it comes to the victims of medical malpractice. Of all the comments made by my colleague from Kentucky, little was said about whether it is fair to cap the recovery for a victim of medical malpractice at medical bills, lost wages, and pain and suffering of no more than $250,000.

Now, I do not come as an expert on anything. Some 20 years ago, in my legal practice in Springfield, IL, I handled medical malpractice cases. For a number of years I defended doctors through their insurance company. I had about 7 years with that experience. Another 2\1/2\ years I was a plaintiffs' attorney suing some doctors and hospitals for malpractice. So I have seen it from both sides of the table in a courtroom. I do understand the dynamics of a medical malpractice case, at least as they applied 20 years ago. I do not know how many others in this Chamber have had that experience. Some have but very few.

So we come to this discussion, frankly, listening to others who are experts

in the subject asking them for advice. What is the right thing to do to deal with this medical malpractice insurance crisis? I think, frankly, that this bill, which limits the compensation to be paid to an individual under a medical malpractice case to $250,000, is fundamentally unfair. It is as unfair to victims as the malpractice insurance rates are to doctors.

Is that the best the Senate can do, that we take the unfairness to doctors and then visit it on unsuspecting people who go to a doctor or to a hospital expecting professional care and come home with their lives changed or ruined?

I recall one case in Chicago. Let me give an illustration of what S. 11 would mean in this case. This woman, about 50 years old, had two moles on the side of her face. She said to her doctor: I think I would like to have those removed, doctor. He said: I will send you to one of the very best hospitals for this surgical procedure, and he did.

She went in for this surgical procedure to have two moles removed. She was given an anesthesia. They administered oxygen to her and they began to cauterize these moles. But there was a problem. Medical personnel were not supposed to use a cauterizing gun near oxygen.

As a consequence, there was an explosion and a fire on her face, burning off her nose, completely disfiguring and scarring her face. She is in her early fifties now and has gone through extensive reconstructive surgery. She is lucky to be able to breathe through what was once her nose. Her life will never, ever be the same.

She told the story herself in an article published in the newspaper in Chicago. Routine surgery went disastrously bad and her life was changed forever.

According to those who have brought the bill to the Senate, they have decided how much it is worth to live 20 or 30 years with permanent disfigurement and scarring, what it is worth to go into the hospital for routine surgery and have something happen that completely changes your life. Do you know what it is worth under this bill? It is worth $250,000 for her pain and suffering. Not a penny more, not one penny more.

The decision will be made in the Senate that in her case, and thousands of others across America, we will decide the maximum amount to which she is entitled. I don't think that is fair. I don't think it is fair to victims.

Malpractice premiums are too high and that is unfair to doctors. But a $250,000 pain and suffering cap? That is unfair in many cases of which I am aware.

Let me talk about another case from my home State of Illinois, in the city of Urbana. David was born prematurely with a lot of problems. By the time he was 6 years old many of the problems were behind him, though he still had some problems with his lungs and asthma. When he was 6 he had a respiratory infection and started running a fever. The doctor who usually cared for him was out of town so his parents took him to a clinic for nighttime care. At the clinic, he was given an antibiotic and sent home. He got worse. His parents took him to an emergency room that same night where he remained overnight with a fever. The next day, concerned about David's continuing fever, David and his parents returned. The doctor admitted him to the hospital at 5 p.m. At the hospital, they took his temperature and admitted him to a regular hospital room. They did not refer him to the ICU, nor did they place a temperature monitor on him.

His mother was dozing in the chair in his room when a nurse observed he appeared to be lapsing into a seizure condition. The nurse did an emergency code. By the time the emergency team arrived, he was in full seizure. His temperature spiked to 107.7 degrees. He remained in a state of seizure for quite some time and eventually went into cardiac arrest.

As a result of this ordeal, this 6-year-old boy was rendered a quadriplegic and lost all expressive ability. Professionals believe he has what is called receptive language. He can understand spoken language at an age-appropriate level but he is unable to communicate. He breathes through a tracheotomy stoma and is fed through a gastrointestinal tube.

That was 11 years ago. He is now 17. David can never be left alone, not for 1 minute of 1 day. His mother says she can tell he is interested in girls by the way he perks up when a girl his age enters the room. But he cannot express himself. He cannot say a word. There is no chance of recovery and, of course, in his condition he is at a heightened risk prone to infection.

The very issue that brought David to the hospital in the first place was his elevated temperature. Despite that fact, no temperature monitor was ever placed on him. In light of his history and his delicate medical condition he should have been admitted to the ICU rather than simply sent to the regular hospital room and given periodic attention. His family reached a settlement with the doctors and the hospital for the negligence in the treatment of David.

It is not likely with all of the liability protections and extreme cap on damages under this bill that defendants would have felt compelled to reach a settlement with that family if the bill before the Senate would have been the law of the land.

The tragic malpractice of which David was a victim literally took away from him all that every one of us take for granted. He will never walk again. He will never have a normal relationship with other people. Though he remains alert and is apparently not intellectually impaired, he cannot express himself and he never will be able to. He requires constant care. His mother gave up her job at a local college to care for him full time.

For all of these losses with their child, for being denied a normal life, those who bring S. 11 today say they know what it is worth. They know what the pain and suffering of David is worth for the rest of his life. It is worth $250,000. Not a penny more. Is that fair? Is that fair to David, his mother, his father? I don't think it is.

What we have here is a response to a medical insurance crisis which I don't believe gets to the root cause of a problem.

What I am about to say now is not a statement made by trial lawyers or those friendly to them. I quote from Dr. Carolyn Clancy, director for the Agency for Health Care Research and Quality at the U.S. Department of Health and Human Services. What I am stating she said, under oath, before a committee I attended several weeks ago. This is what she said:

As we all know, medical errors and patient safety issues

represent a national problem of epidemic proportion.

This is a spokesman for the Department of Health and Human Services, a medical doctor herself.

When listening to the explanation of this bill, at any point in time did you hear any reference to the fact that we are facing an epidemic of medical errors on patient safety issues in America? No. What we heard was we have lawyers who want to make too much money in court and they are taking these cases to the courtroom.

Do you know, according to Harvard, what percentage of medical malpractice actually ends up in a lawsuit being filed? Two percent. One case out of 50 ends up with a lawsuit being filed. Think of that. In the universe of medical errors and patient safety, think of it in terms of this statement by Dr. Clancy that we have a national problem of epidemic proportions.

The response of S. 11 to this epidemic of malpractice and medical negligence is to do what? It is to say that David, who is now 17, who is now a quadriplegic, unable to respond or express himself, is going to pay the price. David and children like him in the future will never, ever be able to recover more than $250,000 regardless of medical malpractice that brings them to the court.

I understand my colleague from Oregon is here and I yield to him for the purpose of a question.

That is correct. I say to my friend and colleague from Oregon, I think it is a disservice to the medical profession of America not to concede there is a medical malpractice insurance crisis affecting some specialties in some States. I do not argue that point. I have seen those doctors face to face. Maybe my colleague from Oregon has, too.

It is interesting, I might say to my friend from Oregon, as I listened carefully to the explanation on the other side as to how to deal with this crisis, I waited in vain to hear any suggestion that insurance companies should be brought in as part of this conversation. To the other side of the aisle it appears the only thing we need to do is to make sure the victims of medical malpractice have a limitation on what they can recover in court, no matter whether we are dealing with children or elderly people, no matter how serious the injuries. I do not think that is a complete and honest approach to an extremely complicated problem.

I thank the Senator. I did not have a chance to speak to Senator McConnell, but I did speak to Senator Frist, who was here earlier and made that same offer. I said to him, instead of bringing this bill to the floor, take it or leave it, with no committee hearings and no effort to try to work out our differences, wouldn't it be better for us to sit down at some point and try to engage all the elements that are necessary for success if we are going to deal with this true crisis in America?

He is open. I hope, if opportunity presents itself, we have that chance. I think we need to bring to the table, not only the legal profession but also the medical profession and the insurance companies. If you do not have all three of them at the table, as I will make clear in my statement, you are not going to get to the root cause of the problem.

The answer from the other side is strictly to limit for malpractice victims the amount they can recover in court. I am going to show in charts I will present that that has not worked. Caps really do not guarantee that malpractice premiums come down, for a variety of very complicated reasons.

I hope we can do that. I hope on a bipartisan basis we can stop this high-noon standoff and reach a point where we have real conversation and dialog.

I yield for the purpose of a question.

I would say through the Presiding Officer, there is no reason why it should not start this evening and I hope it will. But it will require people of good will on both sides. It will require some of the special interest groups that have not even been brought into this conversation to be brought in and to accept their share of responsibility.

I think we can work this out. We must work this out so we do not have the denial of basic medical services that are needed across the State of Oregon and Illinois and New Hampshire and Kentucky and so many other States. But we have to do it in a bipartisan, constructive way.

I thank the Senator from Oregon for coming to the floor.

The point I wanted to make with Dr. Clancy's quote is that medical malpractice in this country is a very serious problem. It is not just a matter of how many lawsuits are filed. As I indicated, only one out of 50 malpractice cases actually ends up in court, and fewer than half of them end up going to verdict or settlement. It is a serious problem. The source of my statement is none other than the Institute of Medicine, a well respected organization here in Washington. They say this epidemic of medical malpractice has caused more American deaths this year than breast cancer, AIDS, and car accidents combined. It is an equivalent of a jumbo jet liner crashing every 24 hours for a year.

More than 70 studies in the past decade have documented serious quality problems in medical treatment. One of the most well known studies published in 1991 by a team of Harvard researchers found adverse events occur in 3.7 percent of all hospital admissions and 58 percent of those events are due to error.

The Institute of Medicine later took that study and another similar study done in Colorado and Utah and extrapolated the results to all U.S. hospital admissions. The Institute of Medicine found that there are at least 44,000 adverse events every year and as many as 98,000.

They also found that each year drugs kill 14,000 hospital patients and injure another 750,000.

The group of Harvard researchers that published the 1991 study found only 47 malpractice claims in the 31,429 cases they discovered. Of the 280 identified patients who experienced adverse events as a result of medical negligence, only eight filed malpractice lawsuits. That is only 2 percent of the people who had a justifiable reason to file a claim. Those researchers concluded that we do not now have a problem of too many claims. If anything, they said they were surprised there were so few.

A similar study published in The Lancet found that although 17.7 percent of patients experienced an adverse event that led to longer hospital stays, only 1.2 percent filed a claim. Thirty patients filed a malpractice claim out of 1,047 who could have, under this study.

There are profound problems with the current system. Doctors are not being disciplined and errors are not being reported. How can we expect fewer errors in the future if we do not address the system as a whole? Despite the alarming incidence of malpractice, only about 2,000 doctors, one-third of 1 percent of the doctors in the United States, are disciplined each year by State medical boards. Let me repeat, one- third of 1 percent of all doctors are disciplined each year by State medical boards.

I was on a trip recently and picked up a book in a book store which I recommend to people on both sides of this issue because I think it is the best and most balanced story of what we are

facing and debating. It is entitled ``Complications.'' It is by a surgical resident from Boston, Atul Gawande, a National Book Award finalist for this book. It is subtitled ``A Surgeon's Notes On An Imperfect Science.''

If you read this book--some people won't want to because there are some parts that may make you squeamish. I think Dr. Gawande really talks to you about the difficulty of being a medical doctor. The first chapter talks about placing a central line. It was tough for me to read this chapter, let alone what it was like for him as a surgical resident after having seen this central line implanted in a person's chest to do it for the first time himself. He had to. Trial and error was the only way he would learn. Of course, some mistakes were made. In his case they were not fatal or serious. But it was part of the learning process.

I think we have to concede that medical practice is not perfect. But we also know some serious mistakes can be made with terrible consequences on an innocent patient.

Dr. Gawande refers in one part to this whole question of what to do or how to deal with the fact that many doctors practice with other doctors who they really are worried about.

Let me give you an example of what he refers to in a chapter entitled ``When Good Doctors Go Bad.'' He says:

But the problem of bad doctors isn't the problem of these

frightening aberrations. . . . In medicine, we all come to

know such physicians: the illustrious cardiologist who has

slowly gone senile and won't retire; the long-respected

obstetrician with a drinking habit; the surgeon who has

somehow lost his touch. On the one hand, strong evidence

indicates that mistakes are not made primarily by this

minority of doctors. Errors are too common and widespread to

be explained so simply. On the other hand, problem doctors do

exist. Even good doctors can go bad, and when they do,

colleagues tend to be almost entirely unequipped to do

anything about them.

He talks about situations that he has faced where doctors are taking drugs. Doctors continue to practice and make errors every day. Because of the tight-knit community of physicians, other doctors are even afraid to speak to them, let alone to governing boards. Those doctors continue to make serious mistakes.

Quoting again, he says:

When a skilled, decent, ordinarily conscientious colleague,

whom you've known and worked with for years, starts popping

Percodans, or become preoccupied with personal problems and

neglects the proper care of patients, you want to help, not

destroy the doctor's career.

There is no easy way to help, though. In private practice, there are no sabbaticals to offer, no leaves of absence, only disciplinary proceedings of public reports and misdeeds. As a consequence, when people try to help, they do it quietly, privately. Their intentions are good; the result usually isn't.

This is a serious problem. If we are talking about malpractice claims, don't we owe it to the American people to be talking about medical errors and negligence and what we can responsibly do to make certain that the small minority of physicians who are guilty of malpractice are changed or removed from the practice?

It is estimated that 50 percent of the malpractice cases in America are filed against 5 percent of the doctors. Yet all of the doctors end up seeing their malpractice premiums increase.

When Congress set up a national practitioner database in 1986 to collect data on adverse medical practice, it was expected that at most it would report about 1,000 disciplinary actions a month. However, fewer than 1,000 a year are reported across the United States.

Let me address another issue. It is interesting, when I speak to groups of doctors, this is the focus of their attention, as it should be, because malpractice premiums have gone up so high. But 2 years ago, this wasn't what doctors were talking about. Malpractice premiums were lower. They weren't raising this issue as often.

They were raising another issue which is related. They were raising the issue of HMOs and managed care. Doctors across America told me that for years they were having difficulty being good doctors because insurance companies were telling them whether or not they could have tests performed, how long they could leave a patient in the hospital, and whether or not a surgery was indicated. They were beside themselves saying we were trained as medical professionals. We are being overruled by insurance companies.

Is it a great leap for us to take that concern of doctors over these many years and understand that perhaps one of the reasons why malpractice has increased is that HMOs and managed care companies are squeezing doctors away from the professional standards that they were taught to follow? That is part of the reality.

Another part of the reality is that not very long ago increased malpractice premiums were passed on to patients. Patients paid more in fees. Hospitals, of course, charged more for their services. Now, with HMOs and managed care and strict accounting and restrictions in compensation, the malpractice premiums can't be passed on. The doctor pays more of it personally.

That is why this has become a dominant issue. But it also relates to insurance companies.

A special interest group that is so heavily favored here in the U.S. Senate, which was hardly mentioned in the opening statement about S. 11, is the insurance companies. We just do not talk about insurance companies in polite Senate company. It is considered inappropriate to think that perhaps they have gone too far.

Do you know what this bill does? I think this is a classic. When you get to section 13 of this bill, the sense of Congress--this is like sending a note to your sister, but it is a sense of Congress, not a law--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.

We debated for months as to whether the HMO and managed care company would be held accountable for making the decision on what is medically necessary and appropriate. Those on the other side of the aisle stood with the insurance companies and said: No, we don't want to hold those insurance companies liable. If they say that somebody has to leave a hospital too soon or that surgery is not indicated, the best we can do in this bill on malpractice is a sense of Congress--note to your sister--that says we really think a health insurer should be liable for damages performed. No law, just that is what we think; that is what we sense.

Is that any way to address this serious problem that is part of the medical malpractice crisis facing our country? Doctors and nurses many times know who the problem doctors are, and they know the problems with insurance companies. But the culture we are creating in the medical profession and the political culture which we created on the floor of the Senate has led us to the point where we can't honestly speak to the American people about remedying this problem.

I think there is a better way to deal with this. We should enact legislation following the lead of Senator Kennedy, who introduced a bill last year. It would establish a voluntary system to share medical error information among providers' and patients' safety organizations through the National Patients' Safety Database. Information shared in this manner would be privileged and not subject to legal discovery. But it would allow health care professionals to report accidents without fear that that information will put anyone in legal jeopardy. It would take a bad doctor out of the operating room when he should be out.

Health professionals who submit reports would also be protected from discrimination in the workplace for participating in reporting systems.

Also, consistent with the Institute of Medicine recommendation, this bill creates a new Center for Quality Improvement and Patient Safety and the Agency for Health Care Research and Quality. The center would conduct and support research on medical errors--something we need to face and face honestly.

We also have to concede another point. When the doctors from Illinois came in and said they favored this bill, I asked them: If we imposed a strict limitation of $250,000 on David and his family, a child who went to the doctor and hospital but unfortunately did not have his temperature monitored and became quadriplegic, if we said that child, no matter how long he lives, can never get more than $250,000 for pain

and suffering, no matter what the circumstances, if we did that, would it bring down your malpractice premiums? The doctors said: No, not right away, but maybe in 3 or 4 years we would start to see that turn around. In 3 or 4 years?

I listened to the Senator from Kentucky come before us and talk about an immediate national crisis. If his bill passes, it doesn't respond to this immediate national crisis. There is a better way to do this.

Over the past 2\1/2\ years with the Bush administration, we have been rather liberal--I guess I could use that word--in relation to their particular subject, tax cuts. We decided to use the tax cuts to reward and help certain people in our society. I believe we should construct legislation that allows a tax credit for those medical professionals and doctors who see their malpractice premiums going through the roof. To do that gives them immediate assistance, not something that may or may not help them 3 or 4 years from now.

The same could be true for hospitals and certainly for high-risk specialties. We need to allow doctors and hospitals to claim a tax credit for the percentage of malpractice premiums they are paying or will pay in the next number of years.

I also want to talk to you about the whole question of insurers and why we are in this dilemma. This has been analyzed by many groups, including the Government Accounting Office, the Wall Street Journal, and USA Today. How did we reach this point of a malpractice insurance crisis today? Why is it so much worse today than it was?

According to the Senator from Kentucky, one of the sponsors of S. 11, it is all about lawyers filing claims. That is not the whole story.

Insurance works in this fashion. If I am going to insure you for a loss, I collect the premium from you. The only way that I make a profit is if I collect more premiums from you than I have to pay back or I take those premiums and invest them in a way where I make money, and, coupling that together with excess premiums, make my profit.

It turned out that a few years ago, with the booming stock market and during the period of economic expansion in this country, a malpractice insurance company--a leading company in St. Paul, which is now out of business--had collected so much money in reserves and was making so much money in investments that they decided to declare a $1 billion dividend. Other companies saw this and said we need to get in the malpractice business; this is lucrative. So they did. They went in and made their investments. As the stock market started to crumble, they had no choice but to cut off their malpractice insurance or raise their premiums dramatically.

Did you hear any part of that explanation in the introduction of S. 11? You didn't. It was all about lawyers filing claims.

But there is another part of the story. The insurance companies are a part of the story. We are not supposed to talk about that on the floor of the U.S. Senate. Perhaps someone is entertaining a rule to prohibit reference to insurance companies. We just don't do that around here. That is not considered polite. But it is part of the problem, and it is also part of the solution. We need to deal with making certain that insurance companies treat doctors fairly--and reinsurance companies.

Now, this gets into the complexity of insurance policy, which I may not understand as well as I should, but I do know this part: There are five reinsurance companies in the world that reinsure for medical malpractice. Only one of them, the Hartford, is regulated in the United States and subject to State regulation; the other four are not. We have no idea whether the rates they are charging are fair. So before we say to David and his family, $250,000 and not a penny more, no matter how long you live, the obvious questions is, Are the insurance companies dealing with this challenge and dealing with it fairly?

Incidentally, the insurance companies are exempt from antitrust law. They can gather information and share that information without any penalty, through the Department of Justice, for violations of antitrust.

I think we understand what we are dealing with, but let me give you an idea of actual cases in States. The Senator from Kentucky talked about various States facing a malpractice insurance crisis, with which I do not quarrel. He suggested caps on recovery was the way to bring down malpractice insurance premiums.

The Weiss Ratings analysis took a look at the percentage increase in median medical malpractice premiums in the period between 1991 and 2002. They took a look at the States with caps, with limitations on how much a victim can recover, and those without caps.

You would assume, by the opening argument, that if the State has caps on how much a victim and his family can recover, the malpractice premiums must be low. But look at these States as examples of what happened during that 10- or 11-year period of time. The States without caps on recovery for malpractice victims such as this child David: Arizona had a 3 percent increase in median premiums for medical malpractice; New York, 6 percent; Georgia, 8 percent; the State of Washington, 27 percent.

When you go to the States with caps on recovery, let's see how their premiums reacted in the same period of time: California, up 50 percent; Kansas, up 60 percent; Utah, up 82 percent; and Louisiana, up 84 percent. So there is no direct correlation, no linear relation between caps and the premiums charged to doctors--exactly the opposite of what has been argued on the floor of the Senate on the motion to proceed to the bill.

In fact, if you look at it on a national basis--this, again, from the Weiss Ratings, Incorporated--the percentage increase in median medical malpractice premiums from 1991 to 2002: States with caps, with limitations on how much victims can recover, if they are the victims of medical negligence, a 48 percent increase in that period time; States without caps, 36 percent. So it is counterintuitive to argue that we are dealing with a linear relationship, direct relationship between caps and the premiums that are charged.

I would like to also add that I think we have to be honest about how we bring the groups together to deal with this. I think we also have to look to the legal profession. I do believe that if attorneys are guilty of filing frivolous medical malpractice lawsuits, we should put into law penalties to not only penalize them for costs and attorney's fees but ultimately to prohibit them from filing this kind of lawsuit if it is done with any repetition.

I do not believe doctors should be harassed. I want them to be doctors first and not sitting around in depositions and courtrooms for lawsuits that never should have been filed. But let me add very quickly, I have been there. I, as an attorney, had people walk into my office where they had husbands who had died, children who had died, and asked me to file medical malpractice lawsuits. I had to listen to those facts and make a decision. I will tell you, I thought long and hard before I considered taking on any of those cases.

Filing a medical malpractice case is not easy. It is not cheap. It is complicated and extremely expensive. If you do not start off with an understanding that you have a good chance of recovery, then, frankly, most attorneys will turn down those cases. That is why so few cases are filed relative to the number of malpractice claims that could be filed. Attorneys know that getting involved in those lawsuits in my State, now, requires an affidavit from a doctor which says, before you can file the complaint, that you do have a legitimate claim for medical malpractice.

We know the depositions will require expert witnesses, who are extremely expensive, in preparing your case to take it to the jury. All of these things are understood. We also know, at the end of the day, most plaintiffs lose their cases filed for medical malpractice, and that is after they have cleared all these hurdles. So to suggest that attorneys are just filing these cases frivolously, believing they are going to receive money for just filing a complaint, is certainly not my experience.

Let me say before I yield the floor--I notice my colleagues are in the Chamber and would like to speak--there is an element of this bill which the Senator from Kentucky made no mention of and no reference to whatsoever. He told us very good and important stories about doctors who could

not practice because of malpractice premiums. I think he should have also included the fact that this bill does not just provide a limitation on recovery for lawsuits brought against doctors; this bill provides a limitation on recovery for lawsuits brought against pharmaceutical companies and medical device manufacturers.

I did not read anywhere about a malpractice crisis involving pharmaceutical companies, but we learned 2 weeks ago, when we debated the prescription drug bill--and we have learned time and again--that hardly any major bill could go through the Senate unless it figured out a way to help drug companies. This bill is no exception. This bill has been designed to make certain there is a limitation on the amount of money that can be recovered from drug companies and medical device companies when they may be guilty of product liability, when they may have sold a product which injured someone.

I can recall a specific situation: heart catheters. I am a little bit familiar with this issue, and maybe some of those who have followed the debate are as well. These are tiny little lines which are passed through a vein of a person to their heart, and they actually film what is going on in the person's heart. It is an amazing diagnostic device.

The medical device itself had been cleared by the Food and Drug Administration, but it turned out that the manufacturer was guilty of shoddy practices in Massachusetts. This manufacturer was creating and producing catheters which, when inserted into a patient and sent up to the heart, would break, leaving portions within the heart, leading to the necessity for surgery to retrieve those pieces that were left behind.

Now, I ask you, is that truly what this debate is all about, that medical device manufacturers which negligently make a product that can endanger the lives of individuals should also be limited in terms of their liability? These are not individual doctors; these are medical device companies. The same thing can be said of pharmaceutical companies.

So I would just ask the sponsor of this legislation, the next time he comes to the floor to explain this bill--and does it in compassionate terms about doctors--why he does not tell us the rest of the story. I want to hear the rationale about drug companies and medical device companies, why they, too, need this protection when their products cause extremely excessive damage to individuals.

It is my understanding that tomorrow we are going to return to the motion to proceed to this bill, and I am sure many of my colleagues will be coming to the floor. But I will say this, as I did at the outset: It is unfair the way doctors are being treated with medical malpractice premiums. Something needs to be done in a responsible fashion, and involving doctors and lawyers as well as insurance companies. If we do it, and do it right, it will be a service to every family in America and every community in America.

But this bill, S. 11, is equally unfair to the victims of medical negligence. To put a limitation on the amount a person can recover-- regardless of the permanent disfigurement, the incontinence, the blindness, the quadriplegia that these people will suffer for a lifetime--is fundamentally unfair and, as we have demonstrated, will not lead to lower premiums. There are better, more reasonable ways to approach this problem.

As I said before on the floor, and I repeat at this point, I stand ready to work with the majority and other Members of the Senate. Let's roll up our sleeves and do this the right way. Let's do it in a way that we can be proud of, and not do it in a take-it-or-leave-it fashion, as this bill has been brought to the floor.

I yield the floor.

Will the Senator yield?

I thank the Senator. I ask him this question: Is the Senator familiar with the provisions in this law relating to collateral sources? For example, health insurance?

Is the Senator from Mississippi familiar with the fact that in all 50 States across the United States, including his State and mine, there is no similar provision about the deduction of collateral sources? There is only one other instance where we have passed a law where collateral sources would be credited, and that was for the victims of 9/11.

If the Senator will further yield, is he aware of the fact that in most States, if you go into a civil lawsuit and raise the issue of insurance coverage, it is an automatic mistrial?

If the Senator will further yield, this bill says that in any health care lawsuit any party may introduce evidence of collateral source benefits. I ask the Senator, does he consider it fair that if David's family had health insurance that paid for some or all of his medical bills, that those who were guilty of malpractice, in his case, should somehow be absolved from paying because his family had the foresight to have insurance?

Mr. President, I assume the Senator from Mississippi has the floor.

I will do it in the nature of a question. Is it not true if the jury knows that the plaintiff's family, in David's case, has health insurance which is going to pay for some of his medical costs, which are obviously going to be extensive, that this is likely to diminish the amount that will have to be paid by the party responsible for David's condition?

I ask the Senator, he suggested earlier that this should not be about punishment. Is there not a question of accountability? If the doctor in this case did not monitor his temperature leading to quadriplegia and a lifetime of pain and suffering, is there not a question of holding that doctor accountable rather than his parents for having the foresight of buying insurance?

Mr. President, I thank my colleagues for joining us in this floor debate, and I hope others will tomorrow, and I am sure they will. It is worth noting that the State of Mississippi, faced with the circumstances described by my colleague and friend, Senator Lott, decided to do what each State has the right to do, and that is establish its own standards of recovering for noneconomic losses.

It is my understanding they have established a schedule that starts at half a million dollars and, over a period of 10 or 15 years, goes up as high as $1 million or $1.2 million. That has been done by the State of Mississippi, as it could be done by any other State. What we are considering here is what we will do on a national basis.

I was wondering if the Senator from Kentucky would help me understand the portion of the bill relative to what he described as flexibility in terms of States rights.

Would the Senator be kind enough to yield, without me yielding the floor, to engage him in a dialog about this State flexibility? Is that permissible under the rules of the Senate? I direct that request through the Chair.

If the Senator from Kentucky is kind enough to yield to this procedure, I ask unanimous consent--I do not yield the floor--that we be allowed to engage in a dialog about some aspects of this bill so there is a clear understanding on the record of his intention.

Mr. President, I thank the Senator from Kentucky. As I have said before, we get dangerously close to Senate debate on this floor from time to time. This just happens to be one of those moments. I am happy to be here to witness it.

I ask the Senator from Kentucky, what is the Senator's intention in the portion of the bill relative to State flexibility? I want to make certain I understand. If my State has any law relative to medical malpractice, relative to discovery or expert witnesses or, in my case, we do not have a limitation on noneconomic losses, what part of State laws would this new S. 11 preempt, and which portion would it not preempt?

If I could ask my colleague from Kentucky, that paragraph (b) goes on to say:

This Act does not preempt or supersede any law that imposes

greater protections (such as a shorter statute of

limitations) for health care providers and health care

organizations from liability, loss, or damages than those

provided by this Act.

As I read that, though, I understand that if one's State law is more generous to doctors, hospitals, drug companies, medical device providers, HMO

insurance companies, then that State provision would be the applicable provision. Is that correct?

So it is not a balanced playing field completely. We are not leaving it to the States to decide, for example, that wrongdoers of medical malpractice cases would be treated more strictly, more severely? If there is a stricter provision in the treatment of those individuals, it would be preempted by this act? Is that the way we have explained it?

Then if I might ask, the next section (c)--I am trying to get to the point of let's use an example of the State of Mississippi which has just decided on a cap of $500,000 on noneconomic losses effective January 1 of this year. Now, the underlying bill, S. 11, says that the cap on noneconomic losses will be $250,000. So in that instance, is it the position of the Senator that this bill would not preempt Mississippi law; that Mississippi's number would apply even though it is larger than S. 11?

May I ask the Senator to explain subsection 2(c)(2) in terms of defenses available to a party in a health care lawsuit under any other provision of State or Federal law that does not preempt it? I do not understand that particular section. If I have caught the Senator off guard on that particular section, we can return to it at a later time, but perhaps he could explain what that particular section means.

We can come back. I do not mean to catch the Senator off guard.

We can come back to that at some point. I thank the Senator for yielding and providing that additional information.

As my colleagues can tell, during the course of this exchange we are doing what usually happens in a committee hearing where sections of the bill are explained and members of the committee have a chance to ask questions such as I have asked of one of the sponsors, Senator McConnell. Then perhaps members of the committee say, perhaps, we need to change that language and we offer amendments. That is the committee process.

For this bill on medical malpractice, we have not done that. We are bringing it directly to the floor. As my colleagues can see, despite the fact that my colleague, the Senator from Kentucky, is certainly an able attorney, there are some complicated elements.

It is important, if we are going to consider a bill of this gravity, that we do take the time to do it and do it right.

I also note that a case which I mentioned earlier is a clear illustration of why this bill is fundamentally unfair to victims. I mentioned this case earlier because it involves a woman who lives in the city of Chicago. As I said in my opening statement, this lady, who has written an article in a leading newspaper in our town, says that she is literally the face of tort reform.

Three years ago, she went to a prestigious hospital in Chicago for a routine surgery to have two moles removed from the side of her head. During the surgery, the oxygen which was being administered to her ignited. In her words, it set her face on fire. It ended with her face in flames.

In her words:

My entire upper lip was burned off and much of my nose is

gone. For two years, I couldn't breathe on my own, and I now

wear a face mask with nasal tubes in what's left of my nose,

23 hours a day. I have endured eight surgeries, with more to

follow. The doctors who are trying to reconstruct my face and

teeth say the whole process could take up to seven years.

That is 10 years of surgery from that tragic accident.

Even then, the scars and burn marks will still be visible

and the emotional cost will be with me forever.

She says:

I'm 50 years old, and the mistakes made at the hospital

have damaged every part of my life--from my career to my

personal life to my sense of self. . . .

But today's proponents of medical malpractice reform don't

want to consider each case individually. They want to put a

cap on damages--regardless of how old a person was when they

were injured, how serious the injury, how an individual's

life has been affected by the negligence of others.

Let me interject for a moment. What is at stake in this debate is not just this important issue of medical malpractice but several other important issues. We are now talking about changing, at least in some respects, the right of States to make individual decisions about the lawsuits filed in their States.

As the Senator from Kentucky said earlier, there are some parts where the States will still have the last word but in other parts they will not. So we will preempt a State's right to establish standards for lawsuits in its State. Now that is an important issue which we consider from time to time, and depending on one's prejudice on the issue before them, they either ignore or honor States' rights. In this case, we clearly do not honor States' rights. The sponsors of S. 11 have decided that on a national basis we will preempt States' rights.

The other thing that S. 11 preempts that is critically important is the jury system. It is interesting that the men and women in the Senate who came here because of the votes of the people they represent, who trust the decision of the people they represent, would say that when 12 of them are gathered together in a jury box we cannot trust them; they are just not reasonable. They get carried away. And because they get carried away, according to those supporting S. 11, we have to restrain them. The only way to restrain them is to put limits in the law, say to them no matter how much they think this poor lady's case is worth they cannot give her more than $250,000. This bill says we just do not trust that jury.

Put the good lawyers in the room representing the doctor and the hospital, as well as those representing her, and the fear is, from those who bring S. 11 to the floor today, that they are just going to see this situation and say this is not fair, it is not right, and this poor lady deserves more than $250,000. Because of that fear that the jury may go too far, this bill says: We will stop them. We will stop them in every State in the Union.

Is it not interesting that when it comes to juries in medical malpractice cases we have so little regard for their ability to find the truth and do what is fair? And yet when it comes to so many other areas of the law, such as criminal justice and the imposition of the death penalty, the jury is sacrosanct; the jury has the final word. When it comes to deciding what this is worth for this lady, we do not trust them.

She goes on to say:

Some claim that $250,000 compensates people who are

injured.

I refer to this photograph of this poor lady and what she has been through, and she asks: ``Would any healthy person allow their face to be set on fire, or worse, to receive that sum of money?''

She says:

Not in the worst type of reality television show.

Some claim that caps are necessary to protect insurance

companies and HMOs. With documented medical mistakes soaring,

it is astonishing that federally proposed legislation would

first target the victims of medical error, before addressing

the errors themselves.

Now the Senator from Mississippi earlier suggested that I went too far in suggesting we ought to look at the whole issue of medical malpractice. Well, I do not think that is an issue foreign to this debate. I think it is an issue central to this debate. If we are going to reduce exposure to lawsuits, if we are going to reduce the size of premiums, then we certainly have to look to the root cause of the problem. If we do not deal with medical malpractice and the fact that only 1 out of every 50 cases of malpractice ends up in a lawsuit being filed, then frankly no matter how much we lower the noneconomic losses per case, there is still a universe of liability, a universe of exposure, for doctors and hospitals which goes untouched.

If this is going to be an honest discussion about reducing malpractice insurance premiums and the crisis that

they have created among some specialities in some States, then I think frankly, as is said by this poor lady who was a victim, what is wrong with asking how we make our hospitals safer? How do we get our doctors to reach a point where they are making better informed decisions? That is a reasonable inquiry. It is one from which we should not shy away. It is certainly one that applies directly to what we are discussing.

She goes on to say:

Some claim that juries are the problem. I trust a jury of

my peers to competently determine a fair judgment in cases

like mine.

The proponents of this legislation want to rein in juries

in medical malpractice cases, but never question the

legitimacy of the jury in cases of the death penalty or other

cases of wrongdoing. It appears that their concerns focus

more on satisfying specific constituencies than protecting

citizens from harm.

Like many people, I have been injured by poor care at a

hospital. More than anything in my life, I wish I could take

that day back, to make myself the way I was before the fire

exploded all around me. But I can't have that day back. All I

can have now is the right to be treated as an individual, to

have others understand how this event has changed my life.

Caps on damages seek to treat all injured people in the

same way. No victim is exactly like any other. Devastating

injuries affect each life differently and deserve to be

treated individually.

In short, my injuries are personal--though part of a

national epidemic of negligence in hospitals. A recent study

showed that 98,000 people were killed in hospitals, through

neglect, in a single year.

I'm hoping that Congress and the public will see that each

victim of medical malpractice is worth considering on his own

and not put arbitrary caps on the personal suffering of so

many people.

That is what it comes down to, a question of individual worth. The question is whether or not we have reached such a point in our society where we have to step away from the rights of this individual who was clearly a victim--as much a victim as someone who would be shot by a gun on the street or hit by a drunk driver on the road--whether we have to say in her circumstance we cannot trust a jury of her neighbors and people in her community to decide what that injury was worth.

Have we reached that point? I hope we have not. I hope, instead, we will do something which would be a breakthrough in the Senate--that we will bring together the parties who are clearly responsible for where we are today. Those include insurance companies.

The Senator from Mississippi conceded the point. He said: I will concede that the investments of insurance companies have something to do with the premiums, of how high they are.

Well, though the Senator from Mississippi conceded the point, this bill doesn't have anything to do with it. It does not bring to task the insurance companies for the premiums they are charging or hold them accountable for premiums they will charge in the future.

We can keep noneconomic losses, limit the amount of money the victims like this can recover, find premiums still rising through the roof as they have in many States that already have these caps, and be powerless to respond. Our friends in the medical profession who are rightly asking us to do something should be enraged at that point, as well. Having been promised this so-called tort reform--though I don't believe it is real reform--that this limitation on the amount that can be recovered on individuals is going to be the answer to their prayers, it may fail. That is not fair to them.

Bringing together in one place the medical profession to deal with lessening medical malpractice, which according to the Bush administration spokesman, Dr. Clancy, has reached epidemic proportions, bringing together the insurance companies, which because of bad investments have seen their premiums skyrocket to try to make up the difference, bringing together the attorneys to make sure frivolous lawsuits are not filed, can bring a solution. If that solution is to be immediate--and it should be--it should necessarily involve some help in the Tax Code for doctors who are currently facing these problems, as well as hospitals.

I would like to know if the Senator from Kentucky would engage me, if he would explain why he has included in this medical malpractice bill, that was originally designed for doctors and hospitals, protection against lawsuits relative to medical device manufacturers and drug manufacturers. Why were these two additional groups included in S. 11 to limit their exposure to lawsuits? I don't recall any reports of a crisis when it comes to insurance for pharmaceutical companies.

I ask unanimous consent that the Senator from Kentucky be allowed to respond and I still retain the floor.

Fair enough. I yield the floor.

Let me go on to say that in this case the question I was going to ask the Senator from Kentucky is this: This poor lady was a victim in my home State of Illinois which does not allow punitive damages in medical malpractice cases. My question for him, which I will save for a time when he has a chance to answer--whether or not, under those circumstances, this victim of medical malpractice has been allowed to recover punitive damages under his bill.

The reason I ask that question is I think that the section relative to State flexibility and protection of State rights is not altogether clear. If he is saying that this lady who was a victim of this explosion in her face, which led to multiple surgeries over a projected 10-year period of time, might have recovered punitive damages under S. 11, then in my home State you cannot turn to punitive damages. Your recourse, in her case, is for noneconomic losses, which are limited.

I might also add the Senator should note his punitive damage section includes a phrase which is a very restrictive phrase. In my home State, when punitive damages were allowed they were allowed for reckless misconduct or willful and wanton misconduct, which is a higher level of negligence.

Under the specific language of S. 11, in order to recover for punitive damages, you must show a malicious intent to injure. So to have cases of gross negligence is not enough. There must be ``malicious intent to injure.''

Another question which I am going to ask the Senator from Kentucky to consider, and perhaps respond to at another time, is whether or not a situation where a doctor is either on drugs, addicted to drugs, or intoxicated, is a case of malicious intent as opposed to gross negligence or willful and wanton misconduct. Because if the doctor is clearly addicted or intoxicated and as a consequence someone is severely injured, the question in my mind is, Is that plaintiff, that victim, then strictly limited to $250,000? Is that a question of negligence or is that a malicious intentional act?

The reason I raise that is because though we come to the floor and have these phrases go back and forth in debate, in a courtroom it makes all the difference in the world, as in this case or similar cases where States allow punitive damages.

From my point of view, I think this bill is certainly deserving of a committee hearing where many of these questions could be asked and answered before taken up on the floor. We should have an amendment process. At the end of that process, we should decide whether or not this is the only way to deal with the malpractice insurance premium crisis, which we are facing in this country.

I will also add at this point, the Senator made reference earlier to some of the challenges facing my home State of Illinois as part of the crisis which he has referred to in his opening remarks. I might also note it was just a couple of weeks ago in his home State of Kentucky that a report that became very controversial was put together by the Program Review and Investigations Committee on the cost of medical malpractice insurance and its effect on health care. It turned out when this report was filed there were those who tried to suppress it so it would not be made public because it addressed the question of why malpractice insurance premiums were high in the State of Kentucky. They raised, I think, some important points that deserve being part of our debate, since the Senator from Kentucky has been kind enough to bring in my home State of Illinois.

This report talked about the impact of medical malpractice costs and access in Kentucky, and I quote:

The total number of physicians in Kentucky has increased in

every year for which data was available--1981 through 2000--

suggesting that the cost of medical malpractice has not

reduced the overall availability of physicians for the State.

It goes on to say:

The difference of premiums in states with joint and several

liability [another provision in S. 11] and other states was

generally not statistically significant.

Then it went on to say:

Premiums in states with caps on non-economic damages were

not statistically different than in other states.

This is a report from the State of Kentucky written as it considered capping its own noneconomic losses. They concluded:

Premiums in States with caps on non-economic damages were

not significantly different than in other states.

It said:

Premiums for internists and general surgeons were higher in

States that capped the amount of punitive damages that may be

awarded than in other states.

. . . There was no evidence that limiting the amount that

attorneys may charge for fees resulted in lower premiums.

That is from the State of Kentucky, this controversial report, which many people did not want released to the public.

I think it raises questions as to whether or not the premise of S. 11 is a sound premise. Certainly in the State of Kentucky, people who looked at it came to the opposite conclusion.

Let me say a word about attorneys' fees. There has been a lot said here about attorneys and contingency fees. The contingency fee is the way a poor person comes to court. Unless you are independently wealthy and can finance a lawsuit and pay a lawyer by the hour, your only recourse is to say to the lawyer, You recover your fee if I recover a settlement or a verdict. That is what a contingency fee is.

In this bill, S. 11, the authors go to great lengths to limit the amount of fees that can be recovered by attorneys filing medical malpractice cases.

I will tell you in my experience as a down-State Illinois attorney--I don't speak for any other part of the State or for current practitioners--it was not uncommon to say to someone coming in: I am going to charge you a 25 percent fee if we can settle this before court; a third if we have to go through a trial; and up to 40 percent if there is an appeal. You will also have to pay costs, but I will try to hold onto those in the hopes that ultimately you recover and we can take that out of the ultimate settlement.

Many people would say, What is my recourse? I can't pay for this lawsuit. I know it is expensive to hire experts, it is expensive to have attorneys prepare the case--for this lady who was a victim of malpractice and many others.

In this particular law that is before us today, we try to put, at least it is suggested that we put, limits on the amount attorneys can be paid. We take away from the individuals the right to make that decision with their own attorney.

Undoubtedly there have been abuses on attorneys' fees. I am sure that is the case, as there have been abuses on medical fees and abuses on fees charged by hospitals. But to say we are going to have a one-size- fits-all, one single approach nationwide as to the amount you can recover is in fact to work a disservice as to whether or not attorneys will be able to take these cases.

I spoke to an attorney today who took an extremely complicated case in Chicago who said before he finally reached a settlement his firm had incurred $250,000 in costs alone and there was no way that a 70-year- old plaintiff could pay them. So this attorney and his firm decided they would put the money on the table, believing the case was meritorious, hoping ultimately they could recover it if there were settlement or verdict. And there was in this case.

But in this approach here, there is an attempt to try to limit the amount attorneys can receive. I think people like the woman I showed here, this lady here, who is a victim and certainly one deserving of any compensation coming back--but she may never have her day in court, may never have an attorney, may never get a chance to submit her case to a jury of her peers if some attorney doesn't offer a contingency fee arrangement. I have serious concerns about where this will take us in terms of limiting these contingency fee contracts. That, to me, is a concern which should be I think debated and debated openly here.

I also want to raise a question--I hope if the Senator from Kentucky does not want to address the issue at this point; he will at a later point--as to his qualifications of experts in medical malpractice cases. I want to understand the limitations he is putting on the experts who come before the court.

In each trial I have been involved in, it was a decision to be made by the judge initially, and ultimately by the

jury, as to the credibility of an expert witness. The difficulty which a plaintiff has in a medical malpractice lawsuit, in any city--whether it's in Illinois or Kentucky or New Hampshire--is most doctors are not anxious to testify against their colleagues. So if you are a person who has been injured in a malpractice case, you have to look hard, far, and wide to find an expert who will come to the courtroom and say the doctor did something wrong.

In this particular legislation there is a limitation on the types of doctors who can testify in medical malpractice cases. I hope tomorrow when we return to this bill the Senator from Kentucky will consider addressing that particular issue as well--what kind of limitations he puts in place. Usually it is a case for the judge to decide initially and the jury to weigh. If they take a look at the doctor who is brought in and say, This doctor doesn't even have a specialty that relates to this lawsuit, or has no experience or really no testimony, then they discount this and perhaps even reject it and maybe even use it against the party who called this doctor. But to establish standards of evidence in this law--I think at least during the course of debating this motion to proceed, we should have an opportunity to discuss the matter.

I yield the floor.

Mr. President, I thank the Senator from Kentucky for his invitation to improve the bill. I believe it would be a better exercise done in a committee setting with experts and witnesses and Senators having the opportunity to debate it openly and amend it and to include not just changes to the rights of malpractice victims to recover, but also the insurance industry and the medical profession. I think all of those would make for a very constructive and important and timely undertaking which, unfortunately, we are not doing here.

This is a vote to bring this bill to the floor immediately, and to literally debate it and pass it in a span of 3 or 4 weeks that we have left before the August recess.

I might also add that California is often referred to in this debate. It is true that in 1975 California passed a malpractice law which put caps on the amount that individuals could recover from malpractice lawsuits. They have not changed that $250,000 cap in the interim. The actual value has been calculated. Because there has been some 28 years since California put that in place, inflation has really taken its toll on $250,000. Its value today is about $38,877.

I am happy to yield.

I would be open to the Senator bringing that in as an option, as long as we are dealing with honest figures and fair compensation. But I would also say that in most States which have caps, there are exceptions. For instance, in the State of Mississippi, there were exceptions where judges could see extraordinary cases like the one I mentioned earlier and say that should not be subject to the caps. My problem with California is it is a blanket cap.

I hope the Senator also agrees with me that we ought to allow some exceptions to the cap. I don't want to put words in his mouth. But that is what I think. I think those exceptions should be allowed.

I would also say it is important to remember if there has been any containment of malpractice premiums in California, they also followed Proposition 103 which is insurance reform. It is not just the limitation on malpractice law that California has, but they passed insurance reform. After that reform, we saw some changes in the amount that was charged to physicians.

The last point I want to make is this: There has been talk that if we don't do something about malpractice insurance, some doctors are forced to leave the State in which they are practicing. I don't doubt that is a fact. I have spoken to doctors in Illinois in specialties in certain areas who are seriously considering leaving. I hope they don't have to. I hope we can do something here to avoid it.

But the fact is, in California there are indicators of significant physician dissatisfaction with medical malpractice, and they have the caps. There appears to be widespread problems recruiting physicians. Only a third of California physicians would still choose to practice in California, if they had to do it over today.

To suggest that this is all about malpractice premiums and whether you have a cap on how much victims of malpractice can recover, the California experience does not necessarily prove that.

Let me also say I would take exception--and we can debate this, I am

sure--to my colleague's interpretations of the punitive damage section. It is true there are two elements here for punitive damages. They are both possibilities.

One is that the person who is being charged with malpractice has acted with ``malicious intent to injure the claimant.''

So that is an intentional act.

Then it goes on to say, ``or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer.''

I would say to my colleague from Kentucky and those who drafted this bill that is unusual wording, and wording I am not familiar with. I would have to study that. But I think to talk about the deliberate act rises to intentional conduct again. The example I used was not a deliberate act but the act of a doctor who was under the influence of alcohol or drugs who may have imbibed or taken drugs, and then in that state of mind did a careless thing which resulted in medical malpractice. Whether that is included in the phrase ``deliberately failed to avoid unnecessary injury,'' I think is arguable. It should be clarified.

I also want to say in fairness to my friend from Kentucky, since Kentucky and Illinois have been part of this debate, that a report of Wednesday, August 9, 2000, in the Courier Journal noted that 329 physicians had been disciplined in Kentucky for alcohol or drug abuse, incompetence, and other offenses from 1990-1999 according to a report issued on questionable doctors.

I might also say, Kentucky was ranked as one of the 10 best States in 1999 in responding to this problem. I only raise that because, as painful as it is to concede by anyone, including those on the Senate floor, and certainly those in the medical profession, there are, in fact, cases where individuals have been involved in alcohol and drug abuse and then involved in malpractice.

What I am hoping we can do, if we seriously want to deal with the malpractice issue, is to go beyond limiting the amount that victims can recover and bringing this conversation to how we police the ranks, so doctors who are not doing the right thing are not going to continue to commit malpractice. That isn't fair to the patients, and it certainly isn't fair to other members of their profession who end up paying higher premiums as a result of it. I think that should be part of any legitimate discussion that deals with this malpractice crisis.

Mr. President, I know my colleague from Kentucky has yielded the floor for the evening, and I am prepared now, for my side, to close the debate on this matter and perhaps return to it tomorrow. At this point, until the Senate business is clear, I suggest the absence of a quorum.

Mr. President, there is perhaps no more vexing challenge confronting this Congress than improving the quality and affordability of health care for all our citizens.

Just a few weeks ago, this Senate took historic action to strengthen and modernize Medicare by providing seniors new choices and adding a prescription drug benefit. During the past year, this Senate passed legislation to provide new resources to the scientists at the National Institutes of Health and to strengthen our Nation's defenses against the threat of bioterrorism.

While we shouldn't minimize the importance of these initiatives, the Senate has not addressed one of the most fundamental problems limiting American access to quality health care; that is, reforming our Nation's flawed medical liability system.

Our current medical liability system encourages excessive litigation, drives up costs, and is literally scaring doctors out of the medical profession. All too often, these lawsuits result in exorbitant judgments that benefit personal injury lawyers more than they compensate injured patients. I am pleased that the Senate will soon consider legislation, the Patients First Act, authored by Senator Ensign, to address many of these shortcomings.

As we debate this legislation over the next several days, Members will use some complex actuarial terms such as ``combined loss ratios,'' ``asset allocation,'' and ``the McCarran-Ferguson Act'' to illustrate their points. While they may be important, I believe it is more important that we recognize this is a real crisis facing real families.

Let's look first at this photo of Tony and Leanne Dyess with their family. This picture was taken prior to July 5 of last year. On that evening, Tony was critically injured in a car accident while on his way home from work in Gulfport, MS. Immediately after the crash, Tony was rushed to Garden Park Hospital, right there in Gulfport, suffering from serious brain injuries that required immediate medical attention.

Tragically, nearly all of the specialists capable of treating this type of head injury had left Gulfport because of the medical liability crisis and none was available to treat Tony Dyess.

Tony had to be airlifted to University Medical Center in Jackson, MS. Six excruciating hours passed before he received the surgery he needed to relieve the swelling in his brain. As Dr. Frist can explain to us, every minute is critical when treating patients who have experienced serious brain trauma.

While the doctors in Jackson saved Tony's life, they were unable-- unable--to prevent him from suffering permanent brain damage. As a result, Tony will require constant care and medical attention for the rest of his life.

The Senate was fortunate to hear from Leanne Dyess when she testified before a joint HELP-Judiciary Committee hearing on the medical liability crisis earlier this year. I thank her for her willingness to share her story with the American people and ask unanimous consent that her testimony be printed in the Record following my remarks.

Mr. President, let's consider the case of Melinda Sallard. This is a picture of Melinda Sallard and her daughter. They live in Arizona.

In 2002, the administrators at Copper Queen Community Hospital in Bisbee, AZ, were forced to close their maternity ward because their doctors' insurance premiums had risen by 500 percent.

A few months later, Melinda awoke at 2 o'clock in the morning with sharp labor pains. Since her local hospital stopped delivering babies because of the medical liability crisis, Melinda and her husband were faced with a 45-mile drive to Sierra Vista in order to reach the nearest hospital with a maternity ward. As many of us who are parents know, babies do not always wait for the hospital, particularly when that hospital is almost an hour away.

Melinda gave birth to her daughter in a car on a desert highway heading to Sierra Vista. When the newborn was not breathing, her levelheaded mother cleared the child's mouth and performed CPR. After resuscitating the infant, Melinda wrapped her in a sweater, and the new family completed the journey to Sierra Vista. Thankfully, both mother and daughter survived. However, it is unacceptable that expectant mothers should be forced to drive past a perfectly good hospital and drive 45 miles through the desert to deliver a child.

Unfortunately, these are not isolated anecdotes but just a few examples of the impact runaway litigation is having on patients in every corner of our country. Patients across America--from the Pacific Northwest to the Southeast, from New England to the desert Southwest-- are facing a medical liability crisis.

As many of our colleagues will recall, I offered an amendment to the generic drug legislation just last year that included some very modest medical liability reforms. During that debate, I called our colleagues' attention to this map produced by the American Medical Association. At that time, the AMA had identified 12 States, those States that are depicted on the map in red--this was a little over a year ago--as experiencing a medical liability crisis. The States shown on the map in yellow were ones at that time with significant problems which were nearing a crisis.

As I am about to illustrate, the situation has grown worse in the past year. The AMA reports there are now 19 States experiencing a medical liability crisis, with the addition of Wyoming just today.

Unfortunately, my own State of Kentucky is one of those States now facing a medical liability crisis. Knox County Hospital in Barbourville, KY, which is in the eastern part of our State, recently announced it would no longer deliver babies because its doctors could no longer handle the malpractice premiums. The hospital averaged about 200 deliveries per year. These mothers-to-be will now be forced to travel an additional one-half hour through Kentucky's mountain roads to the next closest hospital.

Not surprisingly, these expectant mothers are upset. One mother-to-be told the Lexington Herald Leader: ``To have to see someone new at the last moment is just horrible. You develop a close bond with your doctor, almost like family. You don't want a stranger.''

In another part of our State, Dr. Susan Coleman, up in Danville, was forced to give up delivering babies after her premiums doubled from $44,000 a year to $105,000 a year--even though she has never lost a jury verdict or paid an out-of-court settlement. More than two-thirds-- 84 of 120--of Kentucky's counties have either one or no obstetricians who will deliver babies.

This crisis has hit Kentucky's teaching hospitals as well. These valuable institutions not only train our future doctors, they also tackle many of the most difficult medical procedures. Earlier this year, the University of Louisville Obstetrics Department was just days away from closure because it could not find insurance for its doctors.

As I travel through Kentucky, I am approached frequently by doctors who plead for reforms we are proposing today. Some have already packed up their practices and moved across the river to Indiana, which has medical liability reforms. Many more doctors are thinking about following them.

Kentucky is now one of these States facing a medical liability crisis. So, Mr. President, Kentucky now goes from yellow to red.

Let's talk about Connecticut. This year, 28 OB/GYNs in Connecticut announced they could no longer afford to deliver babies because of rising medical liability premiums. According to the Connecticut State Medical Society, each doctor would deliver approximately 100 babies a year. This means that 2,800 Connecticut patients must now find new doctors because of the medical liability crisis.

Dr. Sally Crawford of Norwich, CT, provides a compelling example. She retired from medicine this year at age 55 because she could no longer afford her medical liability premiums. She had never been sued, but her liability insurance premiums became so expensive, they cost her $124,000 a year.

Dr. Jose Pecheco's insurer stopped offering medical liability insurance, so he shopped around for a new policy. When he learned that a new policy with ``tail'' coverage would cost him $150,000 a year, he did what Dr. Crawford did; he retired.

Why are insurance premiums for doctors rising? They are rising because the size of jury verdicts and settlements is rising at an alarming rate. According to the Hartford Courant, the average payment made of one of the State's major insurers to resolve claims increased from $271,000 in 1995 to $536,000 in 2001. When so many experienced physicians such as these take early retirement or curtail services, it is not surprising that the AMA has now designated Connecticut a crisis State. So Connecticut goes from yellow to red. Connecticut is now a State in crisis.

Let's take a look at North Carolina. Time magazine recently featured the story of Dr. Mary-Emma Beres, a family practitioner in Sparta, NC, who had always loved delivering babies. However, when she learned her malpractice premiums were about to triple, she was forced to give up her calling. Now Sparta is left with one obstetrician for difficult cases, and some women who need C-sections must now take a 40-minute ambulance ride to the next nearest facility.

We have heard several examples about escalating premiums that cause some doctors to retire early, but what impact is the medical liability crisis having on doctors at the beginning of

their careers? The same article in Time features the story of Martin Palmeri, a medical student at East Carolina University. He had his heart set on a career in obstetrics, but after witnessing a medical liability trial in North Carolina, he decided ``the risks of the specialty were greater than the rewards.'' He is now considering a less risky specialty.

The crisis has hit North Carolina hospitals particularly hard. According to McNeary Healthcare Services, small rural hospitals in North Carolina experienced an average increase in liability premiums of 180 percent in 2002 alone.

The crisis is impacting patient access to emergency care in Cabarrus County. The county's Level III trauma center was facing possible closure this year when its 17-member emergency medical group was faced with an 88-percent increase in premiums for reduced coverage. It is no wonder that North Carolina is facing a medical liability crisis, and North Carolina now moves from a yellow State to a red State, a State in crisis.

Like Kentucky and North Carolina, the AMA has recently added Arkansas to its list of States facing a medical liability crisis. In Ashdown, AK, the emergency room at the Little River Memorial Hospital was in danger of closing when it could not find an insurance carrier. It was only able to stay open after obtaining new insurance coverage at a 300- percent increase in premiums. According to a recent survey by the Arkansas Medical Society, 90 percent of doctors have practiced expensive and often unnecessary defensive medicine; 80 percent of doctors are less willing to perform high-risk procedures; 71 percent of physicians surveyed in Arkansas stated they were considering early retirement; and one-third of Arkansas physicians are considering moving their practices.

Doctors in Arkansas who want to care for the State's frailest patients are in a particularly difficult bind. There are currently no insurers writing new policies for doctors who treat nursing home patients, and those doctors who have coverage report a whopping 1,000- percent increase. Let me say that again: There are currently no insurers, none, in Arkansas writing new policies for doctors who treat nursing home patients, and those doctors who have coverage report a whopping 1,000-percent increase.

Why? Jury awards and settlements are rising faster than insurers can raise their premiums to meet these increased costs. From 1992 to 2000, the amount that doctors and insurers paid out in jury verdicts and settlements tripled, but then it doubled again in 2001. In that year, for every $1 an Arkansas medical liability insurer received in premiums, it had to pay out $1.61 in jury awards and settlements. Arkansas, as you can imagine, is now confronting a medical liability crisis. So Arkansas moves from a yellow State, which indicates a State with problems, to red, indicating a State in crisis.

Next we turn north to Missouri. This April, St. Joseph Health Center in Kansas City was forced to close its trauma center when its neurosurgeons decided to leave. Last April, Overland Park Regional Medical Center in suburban Kansas City closed the only trauma center ever in suburban Johnson County, KS. This means residents of southern Kansas City and the millions of motorists who pass through on I-35 or I-70 have limited access to a trauma center in an emergency. Now critically injured patients in Kansas City must be transported to either the University of Kansas Medical Center or the Medical Center of Independence, but even that may not be for long. Because of exorbitant medical liability premiums, the two neurosurgeons who service the Independence Medical Center are packing up their practice and moving on November 1.

But this crisis isn't limited to just Missouri's major cities. In May, Dr. Julie Wood was forced to close her rural family practice in Macon because she could no longer afford her $71,000 malpractice premium while treating Medicare and Medicaid patients. Macon's other two family doctors recently stopped delivering babies in order to reduce their insurance premiums, making the nearest point of care for expectant mothers nearly an hour away.

All of that explains why Missouri unfortunately is now facing a medical liability crisis and moves from a State with problems to a State in crisis.

Let's look across the Mississippi River to Missouri's neighbor, the great State of Illinois.

Time magazine recently ran a cover story entitled ``The Doctor is Out,'' highlighting the plight of Dr. Alexander Sosenko of Joliet, IL, and his patients.

Dr. Sosenko's insurance carrier recently dropped him and his cardiology partners, even though the practice had never lost or settled a single malpractice case. The one offer of insurance the practice received would have raised their annual premiums from $14,000 per doctor to nearly $100,000 per doctor.

Dr. Sosenko and his colleagues are trying to determine their next step, but he is clearly worried about his practice's 6,000 patients. He told Time: ``We doctors can move, but our patients can't.''

Dr. Sosenko's cardiology practice is not the only one in Joliet coping with a medical liability crisis. The town is quickly losing all of its neurosurgeons.

In February, two Joliet neurosurgeons gave up performing brain surgery, leaving the city's two hospitals without full-time coverage for head trauma cases. The situation may soon get worse for Joliet's patients. The town's last remaining neurosurgeon must now pay $468,000 a year for insurance and is considering leaving the State. If seriously injured patients need the trauma services of a neurosurgeon, then they will have to travel another 45 minutes to the next nearest trauma center.

These problems are not confined to Joliet. The Chicago Tribune reports that for specialties such as neurosurgery and obstetrics, medical liability rates have increased by more than 100 percent and could climb even higher later this year. So it is no wonder the AMA has now observed that Illinois is experiencing a medical liability crisis.

Mr. President, I am sorry to say that this week the AMA added a 19th State to its list of States facing a medical liability crisis. Dr. Willard Woods of Wheatland, WY, was forced to give up delivering babies earlier this year. Throughout his career, he delivered 2,500 babies, which is most of the young people within Wheatland and the surrounding communities.

Dr. Woods described his situation in the Washington Post. He said:

I love delivering babies. I really love delivering the

babies of women I delivered a couple of decades ago. And I

know this community needs an obstetrician. But you can't

practice without insurance. And I can't get coverage for

deliveries anymore.

Since Dr. Woods stopped delivering babies, mothers with complicated pregnancies must now make the 3-hour round trip to Cheyenne. Sadly, Wyoming, too, is now facing a medical liability crisis.

So why are premiums rising so quickly that good physicians such as Dr. Coleman, Dr. Crawford, and Dr. Woods are forced to give up their practices? The primary reason is rapidly increasing jury awards.

As this chart clearly shows, the Jury Verdict Research Service reports that the median award made by a jury has more than doubled between 1996 and 2000. As you can see, between 1996 and 2000 the median jury awards have gone up dramatically, actually more than doubling. In fact, the median liability award jumped 43 percent in just 1 year--from $700,000 in 1999 to $1 million in 2000.

This chart depicts growth in liability claim payments. Not surprisingly, the increase in jury awards has led to similar increases in the dollar value of settlements reached out of court.

As this chart shows, the average claim--including both jury awards and out-of-court settlements--has risen sharply in the past 6 years, rising from $176,000 in 1995 to approximately $325,000 in 2001.

The crisis will continue to grow worse until Congress acts. If we miss yet another opportunity to pass meaningful liability reforms, I have no doubt that more of these yellow States will turn red next year as they find themselves facing a medical liability crisis.

Thankfully, President Bush has outlined several commonsense legal reforms that Congress can adopt to address this crisis. The President's proposal is based on the Medical Injury

Compensation Reform Act, commonly called MICRA, which California adopted back in 1975.

As this chart shows, California MICRA reforms have kept medical liability premiums affordable for California's physicians. Since the reforms were adopted back in 1975, California's total premiums have risen 182 percent, while the rest of the Nation's have risen 573 percent--three times the California increase.

In short, while medical liability premiums across the country have taken off over the last 25 years, California's have remained relatively stable.

So what do the California MICRA reforms mean for the average doctor and his patients? Quite a bit, as this chart shows.

This chart lists the going market rate for an insurance policy with the largest insurer in each of the following cities. It should be noted that Colorado has passed meaningful liability reforms that are very similar to California's reforms. These take a look at Los Angeles, Denver, New York, Las Vegas, Chicago, and Miami. Doctors in Los Angeles and Denver, where States have enacted reforms, pay less than those in States that have not enacted comprehensive reforms.

For example, an obstetrician in Los Angeles, with the State's MICRA reforms, can expect to pay $54,000, while his colleague in Miami is looking at a bill of more than $200,000. As you can see, Florida is certainly a medical liability crisis State.

Similarly, a surgeon in Los Angeles or Denver can expect to pay about one-half as much as a colleague in Las Vegas or Chicago. These same surgeons would face an enormous liability bill--about $175,000--if they moved their practices to Miami.

Senator Ensign has shown a great deal of leadership on this issue dating back to his days in the House of Representatives. He has incorporated the best parts of the President's proposal and MICRA, the California law, into the legislation before the Senate, S. 11, the Patients First Act of 2003.

While I would allow the author of this legislation to explain it in detail, I will briefly describe some of the important reforms included in the Patients First Act.

First and foremost, the Patients First Act allows patients to recover 100 percent of their economic damages. This can include hospital bills, lost wages, therapy, and rehabilitation costs and a wide variety of additional expenses a victim might incur. So all of the economic losses would be recovered.

In addition to recovering every dime of economic damages, patients can receive additional sums up to $250,000 to compensate for ``pain and suffering.'' The $250,000 is a substantial amount of money, identical to California's MICRA limit. But it still places at least some limit on unquantifiable noneconomic damages in order to prevent doctors from being driven out of business.

Let's look at punitive damages. In those rare instances where a medical professional acts in a malicious or particularly egregious manner, the Patients First Act also allows victims to recover punitive damages the greater of $250,000 or twice the economic damages. This is in addition to recovering full economic damages and up to $250,000 in noneconomic damages.

The legislation establishes a standard of ``fair share'' liability. What this simply means is doctors and hospitals will not be held liable for harm they did not cause. Simple justice. Doctors and hospitals won't be held liable for harm they didn't cause which is possible today and would not be possible after the passage of this act.

The Patients First Act also protects the injured by ensuring that a majority of any jury award or settlement goes to the patient who is actually hurt and not their personal injury lawyer.

Finally, this legislation preserves State flexibility on damages by including what is commonly referred to as a flexicap. Recognizing that different States have adopted different approaches to address this crisis, the Patients First Act allows States to establish their own limits on damages. Under the flexicap provision, in any State that has adopted limits on economic, noneconomic, or punitive damages, those State limits, not the Federal limits, will apply.

The flexicap also applies prospectively. If any State legislature believes the monetary limits established in this bill are too generous or not generous enough, it can simply enact a statute to change the limits within that State.

I will be happy to yield.

Mr. President, I say to my friend from Mississippi, the argument typically made for this type of legislation is that we are interfering with the rights of the States. What we have done in this measure is to give the States an opportunity to act, to, in effect, supercede what we have done to make it less generous or more generous, depending on what they may conclude. A State is given an option to address this crisis in a way that is different from the way we addressed it within certain guidelines. By doing that, we do make an effort to respect the State's right to act.

Mr. President, I say to my friend from Mississippi, I do not know the exact figure--maybe my staff does--but clearly it has had an impact on the cost to the Federal Government. In addition, these doctors are moving back and forth across State lines seeking a place where they can practice their profession without basically giving away their services.

Kentucky happens to be next to Indiana which adopted standards similar to California some two decades ago. I have met a number of doctors in Louisville and Henderson who are contemplating simply moving across the river to even afford to continue to practice their profession.

At least in two ways it impacts at the Federal level, with interstate movement of doctors seeking a place to go where they can practice their profession, and the direct costs to the Federal Government under Medicare.

Mr. President, I say to my friend from Mississippi, he is absolutely right. Not only does it affect decisionmaking at the end of one's career but at the beginning. The younger doctors taking a look at which speciality to choose are shying away from obstetrics because they believe they cannot afford to go into that specialty, thus creating a shortage at that end as well as on the other end where doctors who have been in the field a number of years are no longer able to afford it. This is truly a national problem that cries out for a national solution.

One modest estimate from CBO, in response to Senator Lott's earlier question--this is from my staff--this bill would probably save the Federal Government at least $11 billion. Our suspicion is it is higher than that.

In conclusion, as this map shows, most of America is either nearing or facing a medical liability crisis. There are not many white States on this map. The white States are the ones that are currently OK. There are six of them. The rest are either in yellow, States showing problem signs, or red, States now in crisis, to which we have added a reasonable number just since this debate last year.

During the last 8 years, the House of Representatives has recognized this brewing storm and has passed meaningful medical liability reforms on multiple occasions. Unfortunately, during this same period, the Senate has served as a graveyard for meaningful legal reforms.

However, I believe the tide has begun to turn. The American people are beginning to understand this is not a battle about doctors, personal injuries, lawyers, and insurance companies; it is about ensuring their access, the patients of America, to needed medical care. Expectant mothers are worried that their obstetricians will have to discontinue practice before their baby is born. Parents are concerned that their local trauma center might not have a neurosurgeon on staff to treat a child injured in a car accident. Seniors worry that the double whammy of rising malpractice premiums and reduced Medicare payments will drive their doctors out of business.

I believe the Patients First Act encompasses the key reforms needed to address this crisis. This legislation allows patients to be fairly compensated--fairly compensated--while placing badly needed limits on often out-of-control damage awards. I believe it is time for the Senate to address this crisis, and I urge my colleagues to support the Patients First Act.

Mr. President, I yield the floor.

Exhibit 1

Testimony--United States Senate Committee on the Judiciary: Patient

Access Crisis: The Role of Medical Litigation--February 11, 2003

Ms. Leanne Dyess. Chairman Hatch, Chairman Gregg, Senators

Leahy and Kennedy, distinguished members of the Senate

Judiciary and HELP committees, it's an honor for me to sit

before you this afternoon--to open up my life, and the life

of my family, in an attempt to demonstrate how medical

liability costs are hurting people all across America. While

others may talk in terms of economics and policy, I want to

speak from the heart.

I want to share with you the life of my two children and I

are now forced to live because of a crisis in health care

that I believe can be fixed. And when I leave and the lights

turn off and the television cameras go away, I want you--and

all America--to know one thing, and that is that this crisis

is not about insurance. It's not about doctors, or hospitals,

or even personal injury lawyers. It's a crisis about

individuals and their access to what I believe is, otherwise,

the greatest health care in the world.

Our story began on July 5th of last year, when my husband

Tony was returning from work in Gulfport, Mississippi. We had

started a new business. Tony was working hard, as was I. We

were doing our best to build a life for our children, and

their futures were filled with promise. Everything looked

bright. Then, in an instant, it changed. Tony was involved in

a single car accident. They suspect he may have fallen

asleep, though we'll never know.

What we do know is that after removing him from the car,

they rushed Tony to Garden Park hospital in Gulfport. He had

head injuries and required immediate attention. Shortly

thereafter, I received the telephone call that I pray no

other wife will ever have to receive. I was informed of the

accident and told that the injuries were serious. But I

cannot describe to you the panic that gave way to

hopelessness when they somberly said, ``We don't have the

specialist necessary to take care of him. We need to airlift

him to another hospital.''

I couldn't understand this. Gulfport is one of the fastest

growing and most prosperous regions of Mississippi. Garden

Park is a good hospital. Where, I wondered, was the

specialist--the specialist who could have taken care of my

husband? Almost six hours passed before Tony was airlifted to

the University Medical Center--six hours for the damage to

his brain to continue before they had a specialist capable of

putting a shunt into his brain to drain the swelling--six

unforgettable hours that changed our life.

Today Tony is permanently brain damaged. He is mentally

incompetent, unable to care for himself--unable to provide

for his children--unable to live the vibrant, active and

loving life he was living only moments before his accident.

I could share with you the panic of a woman suddenly forced

into the role of both mother and father to her teenage

children--of a woman whose life is suddenly caught in limbo,

unable to move forward or backward. I could tell you about a

woman who now had to worry about the constant care of her

husband, who had to make concessions she thought she'd never

have to make to be able to pay for his therapy and care. But

to describe this would be to take us away from the most

important point and the value of what I learned. Senator

Hatch, I learned that there was no specialist on staff that

night in Gulfport because rising medical liability costs had

forced physicians in that community to abandon their

practices. In that area, at that time, there was only one

doctor who had the expertise to care for Tony and he was

forced to cover multiple hospitals--stretched thin and unable

to care for everyone. Another doctor had recently quit his

practice because his insurance company terminated all of the

medical liability policies nationwide. That doctor could not

obtain affordable coverage. He could not practice. And on

that hot night in July, my husband and our family drew the

short straw.

I have also learned that Mississippi is not unique, that

this crisis rages in states all across America. It rages in

Nevada, where young expectant mothers cannot find ob/gyns. It

rages in Florida, where children cannot find pediatric

neurosurgeons. And it rages in Pennsylvania, where the

elderly who have come to depend on their orthopedic

surgeons are being told that those trusted doctors are

moving to states where practicing medicine is affordable

and less risky.

The real danger of this crisis is that it is not readily

seen. It's insidious, like termites in the structure of a

home. They get into the woodwork, but you cannot see the

damage. The walls of the house remain beautiful. You don't

know what's going on just beneath the surface. At least not

for a season. Then, one day you go to hang a shelf and the

whole wall comes down; everything is destroyed. Before July

5th, I was like most Americans, completely unaware that just

below the surface of our nation's health care delivery

system, serious damage was being done by excessive and

frivolous litigation--litigation that was forcing liability

costs beyond the ability of doctors to pay. I had heard about

some of the frivolous cases and, of course, the awards that

climbed into the hundreds of millions of dollars. And like

most Americans I shook my head and said, ``Someone hit the

lottery.''

But I never asked, ``At what cost?'' I never asked, ``Who

has to pay for those incredible awards?'' It is a tragedy

when a medical mistake results in serious injury. But when

that injury--often an accident or oversight by an otherwise

skilled physician--is compounded by a lottery-like award, and

that award along with others make it too expensive to

practice medicine, there is a cost. And believe me, it's a

terrible cost to pay. Like

many Americans, I did not know the cost. I did not known the

damage. You see, Senator Hatch, it's not until your spouse

needs a specialist, or you're the expectant mother who needs

an ob/gyn, or it's your child who needs a pediatric

neurosurgeon, that you realize the damage beneath the

surface.

From my perspective, sitting here today, this problem far

exceeds any other challenge facing America's health care--

even the challenge of the uninsured. My family had insurance

when Tony was injured. We had good insurance. What we didn't

have was a doctor. And now, no amount of money can relieve

our pain and suffering. But knowing that others may not have

to go through what we've gone through, could go a long way

toward healing us heal.

Senator Hatch, I know of your efforts to see America

through this crisis. I know this is important to you, and

that it's important to the President. I know of the priority

Congress and many in the Senate are placing upon doing

something . . . and doing it now. Today, I pledge to you my

complete support. It is my prayer that no woman--or anyone

else--anywhere will ever have to go through what I've gone

through, and what I continue to go through every day with my

two beautiful children and a husband I dearly love.

Mr. President, briefly, I thank the Senator from Wyoming for his contribution to this debate. We were discussing off the floor the fact that Wyoming got added to the crisis list--today, actually. Talk about a State in which the distances are great and the problems are compounded by it; Wyoming has to be at the top of the list. I thank the Senator.

I yield the floor.

Mr. President, I say to my friend, my understanding of the way this provision would work is the collateral rule would allow the jury to know but does not reduce the award and does not allow the insurer to subrogate. That is the way this provision is crafted in this legislation. It would allow a jury to know, but it would not reduce the award and would not allow the insurer to subrogate. That is my understanding of the way it is crafted in the underlying legislation.

Mr. President, I want to make sure my friend from Mississippi is aware that, in fact, there was a joint hearing on February 11 between the Judiciary Committee and the Labor Committee on this subject. There has been a recent hearing. Of course, in previous Congresses, there have been numerous hearings on this subject for as long as the Senator from Mississippi and I have been Members of the Senate.

Mr. President, to make sure we all understand what the provision is in the bill we have been discussing, let's put it this way, Mr. President: This provision only allows a jury to know the victim has received benefits from a third party, such as a health insurer. It allows the jury to know that, I say to my friend from Mississippi, but the jury is free to ignore that evidence if they like. It would allow them to know there was insurance coverage, but the jury is free to ignore that evidence if they like. The provision also prevents health insurers, a third party, from recovering payments it made to the victim. That is what this bill actually does.

I think it is important just to set the record straight on what is, in fact, contained in this legislation on that point.

Mr. President, I yield the floor.

Mr. President, I say to my friend from Illinois, reading from the bill, of which I hope he has a copy, section 11 says:

It is correct that this legislation allows states to provide greater protections to health care providers than are contained in this legislation.

Again, to ensure the availability of health care services, the states are allowed to provide greater or additional protections to health care providers than are contained in this bill.

Yes. This legislation does not preempt existing or future state laws on noneconomic damages.

Let's come back to that.

I want to respond to some of the other suggestions my friend from Illinois has made, so if he completes his comments, I will be happy to respond.

Mr. President, with regard to medical errors, were we not debating a motion to proceed, and if we were on the bill, I am sure my friend from Illinois or other Members of the Senate would offer amendments with regard to medical errors. A medical errors bill has passed the House of Representatives.

I don't think anyone is suggesting--certainly not I--that the underlying bill which we are seeking consent to get before the Senate should not be amended or improved in a variety of different ways. However, it is pretty hard to offer an amendment when we are on a motion to proceed.

With regard to the lady who was horribly disfigured--this picture displayed by my friend from Illinois--it is important to remember that her damages would not be capped at $250,000. She would get all of her economic damages--all of them--plus $250,000 noneconomic damages, plus, in all likelihood, punitive damages on top of that equal to twice economic damages or a quarter of a million, whichever is greater.

So the notion that there is simply no other compensation, that there is a $250,000 cap, is not accurate, I say with all due respect to my friend from Illinois.

Senator Lott read off a few moments ago a list of awards under the California system--which is the underlying bill, the one we are seeking to get before the Senate, which this bill mirrors--of multimillions of dollars for compensatory damages; and punitive damages in a case of truly egregious events could be twice the economic damages. Then there is a pain and suffering award potential of $250,000 on top of that.

The people who do not get a penny are the ones who cannot find a doctor because the doctor is no longer there. One of the examples I used in my remarks earlier, Leanne Dyess from Mississippi, did not get a penny. Nor did the women who give birth by the side of the road. They don't get any money when their doctors have been driven out of business.

So the point I make in response to my friend from Illinois: This is not nearly as draconian as he suggests. On the economic side, there are no limits at all. Under punitive damages, there could be twice what compensatory damages are, and there is a $250,000 possibility on pain and suffering already. We think that clearly the victims are not denied adequate compensation.

As we have already pointed out with several speeches, the States that have tried this kind of approach have lower malpractice insurance premiums and do not have the crisis that we have in most of America today without that kind of legislation.

I will not yield at the moment.

With regard to an earlier reference to the FDA, if a product is found to be appropriate by the FDA, the companies should not have punitive damages assessed when they follow the FDA approval process. Punitive damages are for illegal conduct, and if the Federal Government blesses that conduct, it can't be illegal. However, there is no cap on economic or noneconomic damages against the drug companies in that situation.

The other part of the FDA section prevents doctors from being sued on product liability cases just because they prescribed a drug that the FDA has approved.

That is the answer to the question the Senator asked earlier.

Mr. President, the Senator from Illinois mentioned the Legislative Research Service's study in Kentucky, which has been quite controversial and discredited by some. I think a more interesting study was released today by HHS here in Washington which revealed that the States' that enacted limits on noneconomic damages and medical losses have been about 12 percent more for physicians per capita than States without such a cap.

As was pointed out earlier by a number of speakers on this side of the issue, California and Colorado tend to prove the point. This legislation is modeled after the California legislation. They enjoy lower malpractice insurance premiums in California. Widely believed by everyone is that the reason for that is a sensible system of caps on noneconomic damages.

With regard to the limitation of lawyer's fees, I would remind everyone that is for the benefit of the victim because every penny the lawyer doesn't get, the victim does. The notion that somehow there would not be lawyers available to pursue worthy litigation if there were some kind of reasonable cap on lawyer's fees, it seems to me, is not substantiated by the facts. Under the Federal Tort Claims Act, there has been a 25-percent cap for many years. I never heard of any crisis created by the absence of lawyers willing to bring litigation under the Federal Tort Claims Act. Certainly there should be a reasonable limitation on fees. We want to make it possible for lawyers to be adequately compensated. But to protect the victim from his own lawyer, it seems to me that some reasonable limitation is appropriate. This bill includes what we believe to be a reasonable limitation.

The Senator from Illinois also suggested the bill only allows punitive damages in case of malicious intent. It is not just malicious intent; the bill also allows punitive damages when the doctor deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer. Interpreted, that means that would apply to the situation of the drunk doctor Senator Durbin refers to, or a doctor who was on drugs or somehow incapacitated through this kind of behavior. This would clearly mean that punitive damages would be allowed in this case.

We are making a careful list of all the questions which the Senator from Illinois asked. All of them are good questions. They deserve a response and further argument for getting past the motion to proceed and getting onto the bill. So if there are improvements that the Senator from Illinois and others think should be made to the bill, offer those amendments, debate them, vote on them. It could well be that by the time we get to the end of this bill it would be in such a form that the Senator from Illinois might applaud and want to clear the Senate. Who knows.

But at the moment, what we are left with is a cloture motion which the leader will later file on the motion to proceed in order to even get into a position to do anything beyond having an interesting back and forth conversation between the Senator from Illinois and myself and get beyond that and actually begin to offer amendments to the bill and have debate on them and see where the votes may lie.

I think that pretty well covers my observations for today. We look forward to continuing the discussion tomorrow.

I yield the floor.

Mr. President, will the Senator yield for a question on that point?

If we indexed that amount under this bill, would the Senator then support the bill?

I agree with the Senator from Illinois that some kind of inflation adjustment is an appropriate suggestion.

Mr. President, let me make a few observations about the record of the Senate this year. This year, the Senate had to complete 11 of last year's appropriations bills. There were only 13 that were supposed to pass the basic work of the Government. This Senate had to come back and approve last year's work that was never done, 11 of the 13 appropriation bills. Last year, for the first time since the Budget Act was enacted in the early 1970s, there was no budget. The Senate never passed a budget. This year, the Senate enacted a budget.

It is important to note that this year's Senate has also enacted the President's growth package which included the third largest tax cut in American history. And just before the recently completed recess, the Senate completed a bill modernizing and preserving Medicare and adding a prescription drug benefit for our seniors, an issue that had languished over the last three or four Congresses with no action.

This has been an extraordinarily productive first part of the first session of the 108th Congress, one of which we all have a right to be proud. We are moving forward to complete the agenda for the American people.

The measure we are considering today, or hoping to consider in the course of the week, the medical liability crisis, is a major part of trying to do what we need to do to make life better for the American people.

I suggest the absence of a quorum.

Mr. President, I will not object, but I would like to amend that to be recognized after the Senator from Nebraska.

Madam President, I thank my colleagues on the other side of the aisle and on the other side of this issue for coming to the floor because I hope the tone we have set in this debate indicates that regardless of which side of the aisle you are on, regardless of which side of the bill you are on, we understand that we are facing a national challenge.

There is entirely too much medical malpractice in our country today. The best doctors concede that. However, the insurance that is being charged to even good doctors is too unreasonable in many areas, depending on the specialty and where they choose to live. Frankly, there are a lot of people who will suffer if we don't do something about that. Obviously, the doctors themselves who have dedicated their lives to the medical profession want to see some solution to this. I do as well. But the patients who are served by them are also looking for us to do something constructive and positive to make certain that quality health care is available across America.

I don't personally believe S. 11 is up to that challenge. I am not even certain it is a step in the right direction. There has been lengthy debate about whether or not putting a limitation on the amount that can be awarded to a person who has been a victim of medical malpractice is going to bring down malpractice insurance premiums.

This bill, S. 11, suggests that rather than giving that decision to a jury--whether it is in Rhode Island or Illinois or Nebraska--that decision on how much an injured patient should receive will be made by a jury of 100 U.S. Senators. We will pass a bill that says: Regardless of what has happened to you, what happens to your family as a result of medical negligence and medical malpractice, you will be unable to recover anything more than $250,000 for your pain and suffering. Oh, yes, they will pay the medical bills. And if you have lost wages, those will be paid, too. But when it comes to pain and suffering, regardless of whether you are 6 years old, 60, or 96, there will be a limitation of $250,000 which can come your way.

Now, $250,000 in the abstract sounds like a large sum of money--until you sit down and consider the cases, the actual people who have been affected by medical malpractice.

In a few moments, I am going to talk about a number of them, some of whom I met for the first time today. When you hear their stories, I hope those who are following the debate will step back for a second and say: Wait a minute--as I have--is this right for the Senate, for those of us elected from 50 States across the Nation, to decide in each and every case what the maximum recovery will be for medical malpractice injuries? I think the answer is clearly no. That is why I am encouraging my colleagues to vote against the cloture motion, which is a motion which tries to bring this bill before the Senate.

What I believe--and others, I think, share this belief--is that we have a national challenge and a problem when it comes to medical malpractice. But it is a problem that will not be resolved until we deal with it responsibly and completely, until we look at all the facets of the problem.

This bill says it comes down to one thing: Injured victims of medical malpractice are recovering too much money for their injuries. If we can limit the amount of money they recover, then the system is going to be so much better.

I think that oversimplifies it. In fact, I think it really is an abuse of the situation rather than an effort to rectify it. That is why I am opposing it.

We had testimony a few weeks ago from the Bush administration, a doctor from the Department of Health and Human Services, saying that medical malpractice in America has reached epidemic proportions-- epidemic proportions. There are those who estimate that as many as 100,000 Americans lose their lives each year because of medical malpractice--not because they are destined to die because of God's choice but, rather, because someone has made a very serious and fatal mistake in their medical treatment--100,000 a year.

We also have studies that have come out from Harvard University that suggest that only 1 out of every 50 cases of medical malpractice ends up in a lawyer's office with a claim against a doctor or hospital--1 out of 50. So I say to those who support this bill, if you do not look at the underlying incidence of medical malpractice in this country, simply limiting the amount that an injured person can recover is no guarantee you will not face an avalanche of cases coming at you for medical malpractice. We have to go to the underlying issues in how to deal with it.

It is interesting to me, as well, how many elements are being overlooked during the course of this debate. All the debate on the floor has been about doctors: States that do not have doctors, communities that do not have obstetricians to deliver babies, red maps brought before us to show State after State where doctors are facing problems.

But read this bill. This bill isn't just about doctors. This bill is about protecting HMOs, managed care insurance companies, pharmaceutical companies, medical device companies, and nursing

homes. So in all of this debate about the sad situations many doctors do face in America, no one has come to the floor to justify why, within this bill, there is protection for these special interests: HMOs, managed care insurance companies, which many times make decisions which can be as lethal and fatal as any decision made by any doctor.

I think most Americans know of what I am speaking. When an HMO that you are a part of or a managed care insurance company that your family is a part of makes a decision as to whether or not they will pay for a diagnostic test, a laboratory procedure, your hospitalization, or a surgery, when they decide how many days you can stay in the hospital, they are, in fact, dictating medical care in the name of profitability. They want to make more money. They would like to keep you out of the hospital as much as possible, reduce your costs as much as possible, and they make medical decisions.

It is interesting that today a report came out. It is a report that was published by Health Affairs, and those who prepared it are people from the American Medical Association based in Chicago: Matthew Wynia, Jonathan VanGeest, Deborah Cummins, and Ira Wilson. This report is entitled ``Do Physicians Not Offer Useful Services Because Of Coverage Restrictions?''

They surveyed doctors across America and asked them the question: How often have you decided not to offer a useful service to a patient because of health plan rules?

I have talked to doctors who have told me many times that is happening more often than they would like to admit.

Let me show you a chart which tells you what they found in asking doctors across America that question. They were asked this question: How often have you, as a doctor, decided not to offer a useful service to a patient because of health plan rules, insurance rules? In this case, ``very often,'' 2 percent; ``often,'' 6 percent; ``sometimes,'' 23 percent; ``rarely,'' 27 percent. Even if you take the ``very often,'' ``often,'' and ``sometimes,'' you have 31 percent of the cases. Almost a third of the time doctors are saying they are making decisions not to provide a useful service to a patient because the health insurance company tells them they will not pay for it and they cannot do it.

Now, that isn't part of this debate. No one has brought into this conversation the question as to whether or not HMOs, in the way they are treating doctors, are having some impact on medical malpractice and injuries to patients. No. What we are doing for HMOs is not holding them accountable but, rather, saying we are going to give them even more privileges under law. We are going to insulate them from the liability of these bad decisions. So the insurance companies, particularly the HMOs, are running rampant across the Senate when it comes to malpractice instead of being held accountable, as they should be, for their restrictions on good doctors making sound medical decisions.

This is another question asked of these doctors in this Health Affairs study that came out today: If ``sometimes'' or ``more often'' you decide not to offer a useful service because the insurance company tells you you can't, are you doing so more often, less often, or about as often as you were 5 years ago? Most of them say unchanged: 55 percent. But 35 percent say ``more often.''

So you have doctors who are increasingly finding insurance companies making decisions on what you, your mother and father, your wife or husband or child is going to receive in terms of medical care. Is that the answer to this issue, that we are going to say that HMOs will make these decisions, and when they are wrong, and people are injured, and these poor people then turn to a court and ask for some compensation for their injury, they will be limited not only in what they can recover from the doctor or the hospital but even the HMO insurance company? That is what this bill says. That is what this bill is designed to do: to insulate from liability even HMO insurance companies which are responsible for more and more doctors making medical decisions which they believe, based on their training and experience, are not the right decisions for their patients. I do not think that is fair. I do not think it treats people as they should be treated.

Let me mention a couple other items. We have a nursing shortage in America. It worries me. I am reaching an age when I am thinking about the day when I want to punch a button at a hospital or some other place to call a nurse and hope that someone shows up. But the likelihood that is going to occur is diminishing because we have a nursing shortage, and it is a serious shortage.

As America's population ages, we need more nurses to take care of us in convalescent homes and nursing homes and hospitals and other places. Sadly, those nurses are not as plentiful as they once were.

Let me tell you about a report from the Journal of the American Medical Association that relates to the issue of malpractice and the shortage of nurses. This is a report from October of 2002 from the Journal of the American Medical Association. They published the results of a study that, for the first time, showed that the number of patients who die in the hospital increases when nurses are assigned to care for too many patients. An estimated 20,000 people die each year in hospitals from medical mistakes attributed to nurses caring for more patients than they can handle.

This accounts for 20 percent of the nearly 100,000 deaths annually from medical mistakes. While a link between nurse staffing and quality of care seems like common sense, many hospitals downplayed the link until the study was published.

This is a troubling report as well. I read from a book entitled ``The Wall of Silence,'' written by Rosemary Gibson and Janardan Singh. This is a quote from the book:

Experienced nurses as well as newly-minted nurses are

leaving patient care at the bedside at a time when other job

opportunities exist. Their knowledge and skills are valued in

pharmaceutical companies, managed care organizations and

information technology firms. How many are leaving? It is

hard to say precisely. The Federal Government's Bureau of

Health Professions issued a report showing that about 50,000

fewer nurses were using their licenses in 2000, as compared

with 1996.

As our population ages, as the demand for nurses increases, the number of nurses in America diminishes. We have seen that when there are fewer nurses in a hospital, there is more likelihood of medical mistakes, medical malpractice, and medical injuries. Has that even been mentioned in the course of this debate? Has anyone talked about the HMOs and their impact on medical practice? Has anyone talked about the shortage of nurses and the fact that it is leading to more medical mistakes, leading to more lawsuits filed against doctors and hospitals. Instead what we have had in this debate is a strict debate, limited to the question of how much injured parties can recover once they face medical malpractice, once the injuries have occurred.

I would like to introduce in the debate now some real-life stories about people who have been victims of medical malpractice. As I mentioned earlier, some of them were kind enough to join Senator Lindsey Graham and myself earlier this morning when we held a press conference and introduced our version of a bill which we think is a more reasonable approach to dealing with the medical malpractice challenge we face in America.

The first person is Colin Gourley. Colin is on your left as you view this picture here in the striped shirt. This is his twin brother Connor. Nine-year-old Colin Gourley, from the State of Nebraska, suffered a terrible complication at birth as a result of a doctor's negligence. Colin has cerebral palsy. He cannot walk. He could not speak until he was 5 years old. He has irregular brain waves and the amount of time he has spent in a wheelchair has affected his bone growth. He has had five different surgeries, and he needs to sleep in a cast every night to prevent further orthopedic problems. His twin brother Connor survived birth without any injury.

A jury ruled that Colin was a victim of medical negligence. They decided that because of that medical negligence the Gourley family was entitled to receive $5.6 million. That was what was needed to compensate him for his medical care and for the lifetime of suffering and problems which

he will face. Last month, the Nebraska Supreme Court upheld a Nebraska law that severely cut this jury verdict to about one-fourth of the award. As a result, Colin will have to rely on the State of Nebraska and the Federal Government for assistance for the rest of his life.

The jury understood what the case was worth. The jury got to meet Colin, his brother, his two sisters, and mom and dad. The jury heard what happened that led to this terrible medical malpractice, and the jury decided in fairness that he and his family were entitled to $5.6 million. Yet the law came in and said: I am sorry. We have to limit you--a law similar to the one we are considering in the Senate this evening, a law which will say no jury in Nebraska nor Illinois nor North Carolina is going to make that decision. This decision will be made by a jury of 100 United States Senators, and we will decide, in the case of Colin, that no matter what his life may be, whether it is 5, 10, 20, 50, or 80 years, the maximum amount we will pay for his pain and suffering is $250,000.

What may have sounded like a large amount of money at the beginning of this conversation, as we understand as we consider each and every case, becomes an amount which is hardly adequate to take care of what Colin is going to face, as well as his family.

Let me introduce you now to Kim Jones. This is a picture taken before Kim's medical malpractice. As you can see, she is a lovely, proud mother from King County, WA. She was 30 years old and she remains severely brain damaged and in a comatose state today after undergoing routine tubal ligation surgery following childbirth at the Washington State Medical Center. After the operation, the hospital staff failed to notice that Kim had stopped breathing since her vital monitors had been improperly removed. Though successfully resuscitated, Kim suffered multiple seizures and was given seizure control medication that actually worsened her condition. She was later taken by helicopter to another medical facility.

Today Kim is unable to control her bodily functions. She has no discernable mental function and is being cared for at a convalescent center. Kim's father filed a lawsuit against the hospital and the anesthesiologist. The case is still pending.

Kim is standing there at a better time before the medical injury with her daughter. Now she is in a nursing home or convalescent home for the rest of her natural life. What is it worth? After the medical bills are paid, after her lost income is paid, what is it worth to her, to her daughter, to her parents? According to this bill, we know exactly what it is worth. It is worth no more than $250,000 for the pain and suffering she will endure for the rest of her life.

Now let me introduce you to a young lady who made quite an impact on us this morning. She told her terrible story. This is Sherry Keller from Conyers, GA. Sherry is shown in her wheelchair. That is where she was today when she came to speak to us. She stood up and said: I am from Conyers, GA, and I am a registered Republican. I want to make that clear.

I said: We have Republicans and Democrats and Independents. Then she told her story.

Sherry Keller received a complete hysterectomy. Her surgeon relied upon staples rather than sutures to hold her incision closed. Upon having the staples removed, Sherry's incision began to bleed. The surgeon began cleansing the wound. Unfortunately, the incision opened. I won't go into the graphic details. But the doctor in that situation-- this happened at the doctor's office--apparently panicked and left her alone in the room for 35 minutes when the doctor went to call a wound specialist. She left her lying on an examination table. The doctor continued to see other patients while the specialist was on the way and left Sherry in that examining room for 35 minutes. Sherry went into shock from loss of blood, lost consciousness, and fell off the exam table. There was no one with her. Her head hit the counter as she fell. She came to but in the process damaged her spinal cord and rendered her an incomplete quadriplegic. She dragged herself out in that condition into the hallway to get the attention of a nurse or doctor to come to her aid. The doctor called for an ambulance but gave directions that she should be transported only. She, the doctor, left instructions that a doctor would go to the emergency room to dress the wound later.

Sherry was then left in the emergency room for 2\1/2\ hours waiting for a doctor to treat her wound. As a result of that fall in the office, Sherry will never walk again. As she was not employed outside the home, she has no lost income for her injury. Her damages were virtually all medical bills and pain and suffering. Here she is, a woman, some 35 years of age, who faces a lifetime in a wheelchair now because of malpractice.

This law we are considering would pay her medical bills but say that the total amount of compensation for her for the pain and suffering she and her family will go through is limited to $250,000. Some Senators as jurors have decided that in her case $250,000 is adequate, thank you.

I think a jury has a right to consider that case. A jury has a right to consider whether that doctor is guilty of malpractice and whether this woman and her family are entitled to more than $250,000. The fact that she was at home raising her children, because of this bill, will be used against her. She has no job where she earns a paycheck, but she has a real job as far as America is concerned; she was raising her family.

And now look at this situation. This bill will actually penalize her for being a stay-at-home mother with her family. For a Senate that is supposed to be dedicated to family values, it is hard to understand how Sherry's case tells that story.

The next person I would like you to meet is Evelyn Babb of Tyler, TX. This case is similar to many you may have read about. She is a bright, happy-looking person in this picture. She needed arthroscopic surgery on her right knee for a torn lateral meniscus. Her doctor marked her right knee to be operated on with an X. However, the hospital staff negligently prepared her left knee for surgery. Without verifying whether the staff had properly prepared the patient, the doctor proceeded to operate on the knee which the staff had prepared. He began performing the partial lateral meniscectomy before he realized he was operating on the wrong knee. The staff then prepared the other knee, and the doctor performed the operation as previously planned.

Due to the unnecessary surgery on the one knee, Mrs. Babb's recovery was considerably longer and more painful than it would have been. She has severe pain and swelling in her left knee and a lingering infection. She continues to suffer from pain, has difficulty walking, and has a markedly decreased range of motion in her knee.

As an elderly woman of 75, Mrs. Babb will suffer no loss of income, however, and there will be few, if any, additional medical expenses because there is nothing that could be done to improve her condition. Virtually all of the damages she could recover for this obvious malpractice would relate to the pain and suffering she would endure. This bill has decided how much her case is worth: no more than $250,000, period.

When you look at that situation, a person who is retired, with no active income, and with limited medical bills, but a serious medical outcome, it is an indication of the unfairness of this underlying bill.

This case I will tell you about now involves Heather Lewinsky from Pittsburgh, PA. Seventeen-year-old Heather Lewinsky's face remains scarred for life after a Pittsburgh plastic surgeon performed radical surgery to correct a skin disorder near the left corner of her mouth when she was 8 years old.

The doctor claimed to have done this procedure on children many times before when, in fact, neither he nor any doctor in the United States had ever done the surgery to treat a condition such as Heather's. Following the operation, Heather was left with horrific facial scarring and a terrible stroke-like tugging at the corner of her mouth.

The doctor attempted to fix the problem with two additional surgeries, which made it even worse, forcing her to undergo 10 more operations with other doctors between the third and tenth grades.

The pain, swelling, and recuperation with each procedure were excruciating. Heather and her family filed a lawsuit

against the doctor who only paid a small fraction of the jury verdict because he had insufficient insurance coverage.

This is an indication of a young lady who is scarred for the rest of her life. What is permanent disfigurement worth if it is the result of medical malpractice? A point will be reached when no more surgeries will be indicated; they won't add much to her improvement. She may not have lost wages, but she is scarred for life. As far as this bill is concerned, permanent disfigurement because of medical malpractice is worth $250,000, not one penny more.

The last case I want to talk to you about is a case that involves Alan Cronin of California. In the year 2000, Alan Cronin, then 42 years old, went into the hospital for a routine hernia surgery. Alan was married with three children at the time--two of them still at home. He goes in for a routine hernia surgery. After the surgery, two doctors failed to diagnose an acute infection following the routine hernia repair. The doctors treated him as though he had the flu rather than inspecting the surgery site. He became septic and suffered toxic shock. Once the doctors finally opened the surgery site, the pus and sepsis were so overwhelming that they told Alan's family that he had a 98- percent chance of dying. Gangrene had set in and all of Alan's limbs were amputated. When he awoke from his coma, he no longer had arms or legs.

Alan was a customer service representative for a medical equipment manufacturer. Workers' compensation paid for all of his medical bills, including future expenses. He also had a private disability policy that was used as an offset against future economic damages.

In speaking with Alan about the cap on noneconomic damages, he says that there are so many things that you don't think of as necessities, and $250,000 could not begin to cover those expenses. Alan, 42 years old, has had the amputation of his arms and legs from medical malpractice. How much is the suffering and pain that he will endure in the next 30, 40 years of his life worth? We know in the Senate. It is worth $250,000 and not one penny more.

Incidentally, there is another provision in the bill. Because Alan had the foresight to work for a company that provided him with health insurance that covered some of his medical bills after the medical malpractice, and because he also had a private disability policy that will help him with some of his expenses as he tries to struggle through rehabilitation and rebuilding his life, that information, according to the bill, should be brought up in the trial. As a former trial lawyer, I can tell you it is being brought out so as to encourage the jury to diminish any award they are going to give to Alan Cronin. Because he had the foresight to pay for health insurance and a private disability policy, he would be penalized in a court of law by the disclosure of this insurance and this disability policy.

That isn't done today in any court in America, but it would be done under this bill. S. 11 has decided that is a fair way to deal with medical malpractice. I think most Americans would disagree. What they believe is, if you put a cap or limit on the recovery of a person who is a victim of medical malpractice, the malpractice insurance premiums may come down. They hope if they come down, the threat to the lifestyle and future careers of doctors is going to be diminished. Yet when you look at the studies--the Weiss study, for example--you find the opposite is true.

States with limitations on what can be recovered in court had a higher percentage increase in malpractice premiums between 1991 to 2001 than States without caps. So not only is this proposal in S. 11 fundamentally unfair, it is totally ineffective. What we are doing is seeing, frankly, this battle between the White House and the people who are gearing up for some Presidential campaign and the American trial lawyers. That is what this is about. It is not about malpractice premiums, bringing them down. It is not about the incidence of malpractice and reducing it. Frankly, it is about a political battle which should be secondary to the more important issues before us.

S. 11, as it has been brought to us today, is a bill against which I have led the fight. I am sorry I have to do it in one respect, but I am proud to do it in another. I am sorry because this should not be the bill we are considering. We ought to be coming before the American people with a bill that addresses this problem in its entirety and in a fair way. We ought to bring into this conversation medical providers across America. We should sit down and have an honest and open conversation about how to reduce medical injuries and medical errors. That would be good for everyone. I am sure doctors could tell us ways to do that.

Let me give you an example of what we have tried to do in the past. We decided at one point that we would create a national registry to try to find out how often we have these incidents of problems. With that national data bank, we would say to hospitals that before you hire a doctor on your staff, you can check to see whether he has had his license suspended or has been sued successfully for malpractice. In the 1980s, we established that--my colleague, Ron Wyden from Oregon, was then a Congressman who proposed the legislation. He thought if this data bank were present, we could find the limited number of doctors who are most responsible for malpractice and make certain that they either change their ways or get out of the practice of medicine. It was certainly a good idea.

Sadly, there haven't been many people who have used it. Consider this fact:

The data bank is an effective information tool only if

hospitals and other health organizations actually report

adverse actions involving a health care professional. Federal

law requires this information to be reported. But hospitals

are not complying. Since the data bank was established, more

than 60 percent of hospitals have never reported any adverse

action [against a doctor that occurred on the premises.] It

was expected that hospitals would report more than 1,000

disciplinary actions every month, yet fewer than 1,000 are

reported in a year.

Managed care organizations, which are protected by this bill from liability--the HMOs and managed care organizations which, again, receive preferred treatment by the Senate under this bill--are not doing much better.

From September 1, 1990, to September 30, 1999, [the managed

care organizations in America] reported only 715 adverse

events to the data bank. Eighty-four percent of them have

never reported any adverse action. The investigative arm of

the Federal Department of Health and Human Services, the

Office of the Inspector General, notes that ``with close to

100 million individuals enrolled in [managed care

organizations and HMOs] and hundreds of thousands of

physicians and dentists associated with them, fewer than a

thousand adverse action reports over nearly a decade of

service, for all practical purposes, are reported.

So the efforts we put in place to track medical malpractice, to try to weed out the bad actors, to try to take the doctors away who perform some of these acts of malpractice have been in vain.

Hospitals, HMOs, managed care organizations, have refused to report the bad actors. Yet our answer on how to deal with that situation is S. 11. We are going to limit the amount of money victims can recover. Is this totally upside down?

Should we not start with the premise that we want to limit the amount of malpractice itself and medical error in America and then follow through to the next and obvious question: When doctors are going to buy insurance, how can we help them secure reasonably priced malpractice insurance policies? That, of course, would mean bringing in the malpractice insurance companies and reinsurance companies.

Incidentally, there is one thing I said yesterday that we are going to look into. It was my understanding from reports we received that there were five reinsurance companies available to U.S. insurers. A call today to the Illinois State Medical Society said they work with 9 or 10. I want to make sure the record is corrected and reflects the fact that at least we are trying to come to the right number of reinsurance companies. Regardless of whether it is 5 or 50, the reinsurance companies have to be part of this conversation as to how we are going to reduce the cost of malpractice insurance for doctors and hospitals across America.

The third point, and equally important, and I speak to this one as a

former trial lawyer myself, is that the legal profession has to be part of this conversation. We have to say those lawyers who would consider filing a frivolous lawsuit are going to face severe penalties. They will have to pay compensation of cost and fees associated with those cases, and if, in fact, they are found to have done it repeatedly, we can prohibit them from that field of practice completely.

I add, based on my personal experience, it would take an absolute fool as a lawyer to entertain a medical malpractice case that really did not have a chance of success and that could be considered frivolous. Those cases in my State of Illinois are extremely expensive. You start with a certification by a doctor that you actually have a justifiable cause of action before you file your complaint. An important consideration in taking these cases up is whether or not you can move them forward to recover for the plaintiff who is injured. If you do not think you have a chance, you have to tell that sad news to the client who sits in your office, and I have done that.

Frankly, you have to honestly tell many people who are seriously injured: I do not think you have a case on which you can recover.

We have to bring together, if we are serious about medical malpractice, the doctors who can speak for their profession, nurses who can help us understand how we can bring more medical professionals to the job to reduce the likelihood of medical injuries, HMO insurance companies that have to be told they can no longer dictate sound medical practice, where doctors are told what they have to do regardless of whether they think it is right professionally. We have to bring in the insurance companies to make certain the rates they charge are reasonable, and lawyers have to be brought in as well so they are involved in responsible conduct which is focused more than anything else on recovery for the patient or claimant involved. That is what this is about.

The idea that by limiting recovery for the victims we have talked about here is going to solve the problem just will not work.

Let me use this chart as an illustration as well. Here are two States in the Midwest: One I am very familiar with, my State of Illinois, and a neighboring State, Michigan. They are comparable States in makeup of the population in rural areas and urban areas. They are big States by most standards.

Michigan has caps and limitations on how much a person can recover in court. Illinois does not. Here we take a look at the professional liability insurance that is being paid in these two States as of October of last year. We will see in the State of Michigan, OB/GYNs on average are paying more than in the State of Illinois that does not have caps. With surgery, it is the same story. With internal medicine, it is the same story. Michigan, with caps, has higher medical malpractice insurance rates than the State of Illinois without caps.

The belief that in passing this bill and establishing caps across America we are going to bring down malpractice insurance premiums I do not think is a reasonable conclusion, which is borne by the evidence presented here, and this comes from an analysis of the medical liability monitor data, the same monitor data used by both sides of the debate.

I understand the Senator from Utah is here and would like to speak. I close at this point by saying what I said at the outset, and I repeat today, I value very much the medical profession. They have meant so much to me and my family. I have entrusted the care of my greatest treasures on Earth--my wife and children--to great doctors, and I thank God they were there when we needed them.

I want them to continue in practice. I want them to feel good about what they do for a living. I do not want them looking over the shoulders at lawyers who are filing frivolous lawsuits. I do not want them facing 35-percent increases in malpractice premiums they cannot cope with, that they cannot pass on to patients, that force them to make decisions that, frankly, are not in the best interest of good medicine.

Today, during the course of our press conference with these victims of medical malpractice, one of the staff in the back of the room fainted. When he fainted, we stopped everything and somebody said: Call a doctor. How many times have we heard that said? We say it because we all know in those dire emergency situations and in everyday situations, we need the medical profession.

I said at the outset of this debate, and I repeat, I stand ready to sit down with anyone in good faith who wants to deal with the medical malpractice crisis facing America. Let us deal with this in its entirety and in an honest fashion. Let us ask everyone to make a sacrifice--the doctors, the lawyers, and the insurance companies--and then I think we can come up with a bill that is worthy of the Senate.

For us to deliberately limit the amount of money available to these victims with tragic stories, which I have brought to the Senate today, is fundamentally unfair. It is as unfair to those victims as those malpractice premiums are unfair to many of the doctors who are paying them today.

Madam President, I yield the floor.

Will the Senator yield for a question?

If the Senator from Massachusetts would yield for a question, I would ask him, since he has been our leader in the Senate on the issue of a Patients' Bill of Rights to ensure that patients across America have their rights against HMOs and managed care companies--I ask the Senator from Massachusetts, is he aware

that despite the copious debate on the floor about the crisis facing physicians across America, S. 11 provides a limitation on liability not just for doctors and hospitals but also for HMO insurance companies, managed care organizations, pharmaceutical companies, and manufacturers of medical devices?

May I ask the Senator from Massachusetts another question through the Chair. There is a section in this bill I would like to call to his attention, section 13. I would like to read it to the Senator and ask him to respond, since he has been the sponsor of a Patients' Bill of Rights, so that once and for all HMOs and managed care companies will be held responsible and accountable for medical decisions they make that injure patients. I ask the Senator if he would respond and tell the Senate on the record what it means to include in S. 11 a section 13, with the following language--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.

I ask the Senator from Massachusetts, does this sense of Congress language guarantee that those who are harmed by health insurers who make bad decisions about diagnostic procedures, stays in the hospital, necessary surgery--is this language some refuge and comfort for them that finally now they will have their day in court and now, with this sense of Congress, they can hold these health insurance companies accountable?

Mr. President, I would like to speak in morning business on the issue that is pending before the Senate, which is the motion to proceed on S. 11. This is a bill relative to an important issue that really we have to grapple with in this country, and that

is the question of medical malpractice. It is an issue which has come at us in so many different ways. Unfortunately, the bill that is before us, S. 11, which we are now considering under a motion to proceed, looks at the issue of medical malpractice from only one narrow perspective, and from my point of view a very ineffective perspective.

What the bill before us would suggest is if you or a member of your family or one of your children is a victim of medical malpractice, there would be a strict limitation in this bill of how much you could recover in court for what is known as noneconomic losses, pain and suffering. That strict limitation would be $250,000.

To many people, $250,000 seems to be a very substantial sum of money, and it is until it is put in the perspective of the injuries we are discussing. Yesterday, in the course of the debate, I told the story of a 6-year-old boy in my home State of Illinois who went to a downstate clinic with a high fever. Unfortunately, he did not receive appropriate medical care and a jury decided he had been a victim of medical negligence. The doctors who had treated him did not perform the type of medical procedures necessary to monitor his serious condition. As a result of that, this poor little boy at the age of 6 became quadriplegic and uncommunicative. It is now 11 years later. He is 17 years old. He needs care around the clock. He cannot respond to stimulus that ordinary people do. He certainly cannot communicate. His situation for the past 11 years is, frankly, what he will face as long as he is alive.

That is a harrowing prospect for his family and it means they are going to have to dedicate the rest of their lives, as mother and father, to try to make his life on Earth as bearable as possible. So $250,000 in that context has to be taken from a different perspective. It goes beyond his medical bills, of which he will receive compensation, to the question of pain and suffering for him and certainly for his family.

If this young man, now at the age of 17, is going to live 20, 30, or 40 years, what is $250,000 worth? That $250,000 turns out to be a very small amount when we consider that the injuries he suffered and the problems he has endured are going to be there for a lifetime. So for us to say we will decide in the Senate in S. 11, the bill that is before us, that this little boy and his family will never receive more than $250,000 regardless of the circumstances facing him for the rest of his life, I think is totally unfair.

In fact, it is a dramatic departure from where we have been in the United States for so long. We have said, first, that this is an issue to be decided by each State. Each State should decide if there is going to be a limitation on how much money someone can receive if they are a victim of a certain injury or malpractice.

Secondly, we have said historically this is an issue not to be decided by 100 Senators, men and women sitting in Washington, but literally by 12 of this family's neighbors and friends who live in the community, who will try to reach a fair amount of compensation when in fact they find fault on the part of the doctor and the hospital. That is the jury system. It is a system we have believed in in America from the start of this Nation. It really is a system which parallels free elections in America where we say we entrust our Government to the people of this country.

In the courtroom, we entrust these decisions to the people of America, 12 of them chosen at random to come to a fair conclusion. Those who are pushing this bill today say we can no longer trust the jury system in America; we cannot trust 12 of this little boy's neighbors and friends and people in the community to come forward and reach a fair verdict.

I think that is a terrible condemnation of a system of justice which has really been the bedrock of American principles and American values.

It is curious to me that many of the same people who decide today that the jury system consists of people who cannot be trusted will readily trust the jury system when it comes to questions of criminal penalties, penalties as severe as the death penalty. If we trust a jury of 12 to decide the life or death of a criminal defendant, is it not also fair to say we would trust them to decide a fair amount of damages, a fair amount of compensation, for this child and his family?

Well, no. S. 11, offered on the Republican side of the aisle, says the opposite. It says, we will make the decision here. We are smarter. We know what is fair, and $250,000 is adequate compensation for this little boy who will face a lifetime now of care on a daily basis, minute by minute, whose mother has had to quit her job so she can stay home and tend to this 17-year-old boy who was a victim of medical malpractice.

Let me also add that equally unfair and unjust in S. 11 is the treatment of people who are senior citizens, who have been the victims of medical malpractice, because what this bill compensates are medical bills and lost wages, and limits any other recovery to $250,000. So if one happens to be a senior citizen who has no active income, perhaps a little retirement and the money they derive from their savings, and they are a victim of medical malpractice, they are limited to $250,000 compensation.

I will come back later today and talk about a couple who were victimized frankly because a blood bank gave them blood that was tainted with the HIV virus, which resulted in this 70-year-old couple contracting that HIV infection, ultimately dying of AIDS. It was a sad situation and one that was graphic in terms of the malpractice involved. But because they were not wage earners, their compensation under this bill would be virtually nothing.

The medical care which they would receive, of course, would be compensated, but it would only be $250,000 for pain and suffering.

Let's go to the root cause of this debate. Why are we even talking about medical malpractice on the Senate floor? It is because we do have a serious national challenge. In many States, including my own, for many specialities of medical practice we have seen medical malpractice insurance premiums increasing at an alarming rate. When we have asked the General Accounting Office and private firms to analyze why this has happened, they have said there is a variety of reasons that have led up to it. Yes, in fact, there are more settlements in cases involving medical malpractice than there have been in the past, and in some marginal cases more verdicts. It is an indication of the fact there is more medical negligence being discovered, and even the Department of Health and Human Services gave us testimony a few weeks ago that we are facing medical negligence and medical errors across America, in their words, of epidemic proportion. So now we have this huge wave of exposure and liability coming at the medical profession, and naturally there are more lawsuits that are being filed to reflect this wave, this epidemic, of medical negligence.

What has happened on the insurance side to protect the doctors? Sadly, this has been, frankly, a casino mentality among many of the medical malpractice insurers. Back in the Clinton administration, when we had a strong, vibrant, growing economy, when the Dow Jones index was going up regularly and people saw their retirement incomes growing and their savings growing, many people were investing in the stock market and doing well and many insurance companies did as well, too.

In the case of medical malpractice insurers, they would collect the premiums from the doctors, invest them in the stock market or in bonds and do very well.

Now what has happened? In the last 2\1/2\ years under this administration, we have seen the economy in recession; we have lost jobs; we have lost businesses; we have seen people lose their life savings; they have made new decisions on whether they have to continue to work.

Business investment, as well, has not been as profitable. These insurance companies that thought they had a winning formula are starting to lose. The premiums collected from doctors, invested in bonds and the stock market, have not been as profitable. Because of this, many of these companies have gone out of business or raised their premiums because of anticipated exposure for medical errors. Those raised premiums have caused real hardship among doctors in America.

Senator Daschle came to the Senate floor yesterday--and I tried to make the point, also--to say we understand

this issue is serious. On the Democratic side of the aisle, we have offered to the Republican side of the aisle to come together on a bipartisan basis to deal with the malpractice insurance crisis and the malpractice crisis in America. But we cannot resolve this issue by introducing a bill, S. 11, that only goes after one discrete part of it--limiting the recovery of medical malpractice to victims.

This drastic response is not going to solve the underlying problem. We need to come together on a bipartisan basis as we did on terrorism insurance after September 11. We found a way to do it. But we can only do it if we engage the three elements that can lead to success. Those elements are: First, the medical profession itself. We have to bring together those doctors of good will across America who want to work with us to reduce medical errors, to bring more safety to the practice of medicine, to take away from the practice of medicine those doctors and practitioners who are largely responsible for medical malpractice. Fifty percent of the medical malpractice claims in America can be attributed to 5 percent of the doctors. We need to make certain the medical profession is more vigilant in taking these doctors out of the practice of medicine, are changing the way they practice medicine so fewer innocent victims emerge from this experience.

Second, we need to bring in the insurance industry. I know this is a sacred cow in the Senate, to talk about insurance companies and holding them accountable for the way they are treating doctors across America. But you cannot have an honest conversation about dealing with medical malpractice premiums without talking about the insurance industry. We could cap recoveries across America in every courtroom for every victim of medical malpractice with no guarantee that medical malpractice premiums are going to decrease for doctors across America.

Here is what I think we should do. First, we should eliminate the antitrust exemption for insurance companies across America. To think we allow these companies to collude, to come together and share pricing information to the detriment of their customers--in this case, their doctors--is indefensible. The McCarran-Ferguson Act should be repealed so the antitrust exemption is removed from the U.S. industry.

Second, we need to look at the whole question of reinsurance. Most of these malpractice insurance companies only protect doctors up to a certain amount--perhaps $1 million or $2 million--in terms of their exposure to liability. Then they sell off the additional exposure-- $2 million to $10 million, $2 million to $20 million--and buy insurance to cover it. There are five major companies selling reinsurance in the medical malpractice area. Four are offshore and not regulated by any State or Federal regulation in the United States. We have no oversight of the way they are treating malpractice insurers in America. That is a guarantee that, no matter what we do in the Senate, there will still be ultimate vulnerability by the medical profession to unreasonable and excessive malpractice premiums.

The solution involves: Bringing together the medical profession to reduce medical errors, to reduce medical injuries; bringing the insurance industry in to make certain that we have some accountability and fairness in the premium charges; and, finally, bringing in those in the legal profession to make certain that any lawyer filing a frivolous malpractice lawsuit is going to be held accountable for the costs and attorney fees, initially, and ultimately, if he or she continues doing so, banned from filing future lawsuits; also making certain that punitive damages would be eliminated in virtually all medical malpractice cases. All of these factors will move us toward a solution to this problem.

This week, we are going to be visited by many doctors from across the United States. They will come and tell us of their legitimate concerns about malpractice premiums that are hurting their profession and limiting the availability of good medicine and good doctors across America. I do not quarrel with their premise that they have a problem that needs to be resolved, that we need to face squarely and honestly.

But this morning, at 11 o'clock, I will hold a press conference in which we will have five victims of medical malpractice. They will tell their heartbreaking stories, how they went to the doctor, they went to the hospital, and came home so injured and so changed that their lives were never the same. The $250,000 being offered by the sponsors of S. 11 is totally inadequate to the injuries they suffered. The limitation of $250,000 would make them wards of the state and dependent on government and charity for the rest of their life. That is what is being offered on the Republican side of the aisle.

The last point I make is this: When you read S. 11 closely, you will find it is not only about doctors and hospitals, it is also about protecting from liability HMO insurance companies and health care organizations, the makers of medical devices, and those pharmaceutical companies that are found to have been negligent in the sale of their products.

I cannot understand how the medical profession can allow itself to be used by the sponsors of this bill so that those who are coming in to represent these special interest groups--the HMOs and managed care organizations, the pharmaceutical companies, and the medical device companies--get protection, using as their argument the sympathy that is being generated on behalf of doctors who are struggling with malpractice premiums. That is unfair to the doctors; it is unfair to the hospitals; it is unfair to the Senate, that we would include in S. 11 that type of limitation.

Finally, this bill, S. 11, allows for punitive damages in the most limited circumstances. It requires that there be a deliberate act on the part of a doctor for punitive damages to apply, as well as malicious intent being another option under punitive damages.

When I made an inquiry yesterday as to what it would mean if a doctor were intoxicated or an addict to drugs and, because of that intoxication or addiction, performed some medical procedure which harmed a person for life, I was told that punitive damage section would apply. I have to say quite honestly it does not because the language of the section is only about deliberate and intentional conduct, not about the kind of gross negligence involved in addiction and intoxication.

As we look at S. 11, we owe the medical profession as well as the people of America more than is being offered. To bring this bill on a take-it-or-leave-it basis, to say we will have no committee hearings, no amendment process in committee, no opportunity for an exchange of information, is not fair to the people of America. I hope we can do better--I think we can--that when the vote takes place tomorrow on the cloture motion, we will see a number of Senators are going to come forward and ask that we try to resolve this difference in a fair way, in a balanced way, rather than this unbalanced and unfair way being offered.

I am happy to yield.

That is exactly true. The Senator's home State, the State of Nevada, was a classic example of serious problems that were ultimately addressed last year by legislative action when the State of Nevada accepted its responsibility.

We need to deal with this through each State, and we need to find ways on the Federal level to try to make certain we do not have States in crisis, as mentioned yesterday, because of malpractice premiums.

I would say to the Senator from Nevada, that is accurate. In fact, we had a limited hearing last February on the issue but not on this bill. Senator Coleman of Minnesota had a hearing in the Governmental Affairs Committee to talk about the general issue of medical malpractice, where the administration testified we are facing an epidemic of medical malpractice in America. But no one has sat down to measure whether this bill will actually reduce malpractice premiums. The only studies that have been done by the General Accounting Office, as well as by a group known as the Weiss Institute, have come to the conclusion that limiting the recovery of victims in medical malpractice lawsuits is no guarantee of malpractice premiums coming down. In fact, in many cases of States with caps on the recovery, limitations on recovery for malpractice victims, the malpractice premiums for doctors have gone up.

There is no linear connection or guarantee that limiting the recovery for victims is going to help the doctors, yet that is the only solution that is before us on the floor today.

That is exactly right. I would say to the Senator from Nevada, it is true the medical profession feels very strongly on one side and the trial bar on the other. But what I have tried to do is gather information from those who have no axe to grind, people who are trying to analyze this problem honestly. The conclusions they have reached suggest to me this is a much more complex problem than what we see today.

Unfortunately, S. 11 I think is a political answer to a much more serious problem. If this is a question about whether the White House is going to take on the trial bar in some sort of confrontation for the next election, that is one thing. It is an interesting political battle. It is not going to solve the problem, not in my State or any other State. We have to deal with it honestly by saying the medical profession, the insurance industry, as well as the legal profession have to come to the table. We need to have not only committee hearings so we can see publicly what this issue is all about, but we need to have a good-faith effort. We can do it.

I think the Senator from Nevada recalls after 9/11 we had a problem with terrorism, of course, and the threat of terrorism. That had an impact on the construction industry and on investment. So people came to us and said: We can't get people to invest in building new buildings unless we do something about terrorism insurance.

We sat down on a bipartisan basis and worked it out. Senator Daschle came to the floor yesterday and said: Use the same model on malpractice. Bring us together, Republican and Democrat alike, and try to find common ground and a solution. If it is not through a committee process, let it be through an honest to goodness, good-faith negotiation, but we can achieve that goal.

Yes.

I agree with the Senator.

One other thing that needs to be part of the record: Even if we enacted S. 11, which is the cap on recovery for medical malpractice victims--children, elderly people and families alike--there is no guarantee medical malpractice insurance premiums will come down. In Nevada, significant reform legislation was passed but, as I understand it, the premiums did not start coming down for some period of time, if at all.

I agree. I say to the Senator from Nevada, I do not profess to be an expert, but I did, in my private practice as an attorney before I came to the Congress, have several malpractice cases. In some I defended doctors and in some I sued doctors for what I believed to be malpractice. Those are heartbreaking cases and should not be dismissed easily by the Members of the Senate until they sit down and talk to families.

I can recall a family who brought in an infant girl to my office. She had gone to the doctor for her ordinary baby shots, which I am sure the Senator from Nevada and my family have done; we have brought our children in for them without any real concern. This poor little girl, because she had a condition known as roseola, a form of measles that was undetected before the administration of the baby shot, ended up with a serious reaction to the pertussis vaccine for whooping cough and literally became a quadriplegic. This little girl was going to live the rest of her life in a virtual coma-like state and need constant care.

What we hear from the other side of the aisle is that that is not worth more than $250,000.

I would say, if I were the parent of that little girl, I would view this a lot differently. I would want to have a jury of my peers to decide what it is worth, what is the value.

But S. 11 takes away the authority of the jury to make that decision and decides we will make the decision here for every case in America-- no matter how serious the injury to the infant or the person who is the victim of malpractice, no matter what the circumstances--to strictly limit it to a $250,000 recovery.

I think that is unfair. I think the Senator from Nevada has made the point.

The last point I will make on this issue is that I think we need to give the doctors immediate relief on malpractice premiums. I am going to introduce legislation with Senator Graham of South Carolina that will provide an immediate tax credit, in addition to the deductibility, an immediate tax credit of up to 20 percent for relief to the specialties that are hardest hit by these increases in premiums for malpractice insurance--neurosurgery, OB/GYN, trauma surgeons. I really believe we need to do something quickly.

S. 11 does nothing but change a law which may or may not, in 3 or 4 years,

result in premiums going down. It is far better for us to do something on an immediate basis, an emergency basis. I hope the medical association and societies across America will take a hard look at this bill--it is being offered in good faith to deal with the immediate crisis--rather than penalize the victims of medical malpractice.

Mr. President, I yield the floor.

Mr. President, I thank the Democratic leader for his comments and for his leadership on this issue. I think he has shown a good-faith effort in the past to deal with issues and with the complexity of terrorism insurance. And that opportunity is still here today.

This week in Washington, many representatives of the medical profession will come to visit us and talk about the seriousness of this issue. They don't need to convince me; I am convinced.

The question is, How do we resolve it fairly and not just for doctors but for the victims of medical malpractice. We can do this. But I don't believe S. 11 is the way to approach it.

If we are going to allow this to disintegrate into a political face- off between the White House and the trial lawyers of America, perhaps when it is all over someone will have bragging rights for a 30-second ad. It will not help the doctor with whom I met who is serving Primbrook Township, south of the city of Chicago about an hour-and-a- half drive. You will find some of the poorest rural towns in America in Primbrook Township. This doctor is literally giving his life to the poor who need medical care. He said to me 2 weeks ago in Washington: Senator, I am here to receive this Jefferson Award, and I am proud of it, but I need help with malpractice insurance. I want to help him.

Limiting the recovery by malpractice victims may ultimately give someone some satisfaction that they have scored a political victory over the trial bar, or perhaps their limitation of victims' recovery will give them some satisfaction, but it is not going to help that doctor. It is not going to reduce his premiums. It is not going to give him an opportunity to continue his practice.

So I say to my friends in the medical profession--and this doctor is a good example--we honor and respect what you do. We need you. We need to work with you. Do not get so caught up in a political agenda involving the White House and the trial lawyers that you overlook the fact there are many people of good faith and good will who want to sit down and help.

We believe this can be done. It can be done in a way that is not going to deny the parents and the family of the small child, who, as I mentioned earlier, is going to live a lifetime of medical dependency because of medical malpractice. It is not going to be done in a way that is going to deny a woman who went in for simple cosmetic surgery and ended up with horrific burns on her face that required a dozen operations and years and years of suffering. That is not the way to resolve this.

Do this in a fair way for doctors; do it in a fair way for medical malpractice victims. Do not be afraid to call in the special interest group, the insurance companies, and tell them they have to be part of this conversation. We have the power in Congress to bring them in. We have the power to change the laws to make sure they treat doctors and hospitals fairly and to make certain the medical profession comes forward.

It is interesting to me that as I have discussed the issue of medical malpractice with doctors in my State and across the Nation, they have been of one mind and one voice and they have agreed: We need to do more to make certain we reduce the incidence of medical errors.

A doctor, who is a friend of mine, in Decatur, IL, also works on the board of a local hospital. He said he went to the hospital pharmacy where they literally write thousands of prescriptions each year for the patients who come through that hospital and they wanted to find out how many errors had been made in the prescriptions that had been written. They came up with a handful of examples. The doctor said to me: Senator, I know better, and you know better. We're not doing a good enough job here to make certain that mistakes are not made in the drugs that are prescribed and the prescriptions that are written.

We can do a better job--and we should--to have medical safety. Doctors want the best results. They do not want bad results. Certainly, the families and patients do not, either. We can work together to try to improve medical care in America in a professional way.

The bill I am going to introduce is going to allow for the transfer of information, data on medical safety, and the transfer of information without legal liability, so a doctor who would report an incident at a hospital that may lead to a change in a procedure or perhaps to a disciplining of a doctor is not going to be held legally responsible for having come forward with this information.

I think that is the only fair and honest way to deal with this issue. But if we are going to deal with it, let us look at each of those components: the medical profession, the insurance industry, as well as the legal profession.

What I do not want to see occur is what S. 11 really mandates; that is, instead of a jury of 12 in communities across America taking a look at each individual case to decide what a fair, reasonable verdict and outcome might be, we would have a jury of 100, 100 Senators, men and women elected here, who would sit in judgment of every single case in America involving medical malpractice.

We are not going to hear the story of the parents, who are going to come from that downstate community in Illinois, who took their little boy in with a high fever, who expected medical care--which each of us would expect as parents bringing in our baby with a fever to a clinic-- and did not receive it because no temperature monitor was in place and, as a consequence, that little boy's high fever led to complications, quadriplegia, and the fact that he now has a lifetime of medical dependence on his parents. He will never enjoy the simple things in life which each of us takes for granted.

We are not going to hear that story in the Senate as a jury would hear in a courtroom. We will not hear the details of his life and what it means now: the pain and suffering he goes through every single day. No, we will not hear those facts. We will not make a decision based on the reality of the malpractice that this family and boy endured.

Instead, we will make a decision, under S. 11, that says $250,000 is the maximum amount that boy and his family will ever receive for the injuries which they have suffered when it comes to pain and suffering. That isn't fair. We should not stand as a jury and make that decision. We ought to trust a jury system that has been part of American justice for a long time, a system that we rely on every single day in thousands of courtrooms across America.

I think a sensible approach is to say that we do have a problem; we will work with the doctors; we will work with the insurance companies; and we will work with the legal profession to find a reasonable alternative to it. S. 11 is not that alternative.

If, in fact, the cloture motion is defeated tomorrow, which means we do not proceed to the bill, I make this offer, not only to the sponsors of that bill but to all who are interested in this issue, that I will personally engage myself in trying to find a reasonable, good-faith alternative that reduces malpractice rates, premium rates, particularly for those doctors who have no experience of wrongdoing--now, there are some doctors paying high rates who, frankly, have to pay them because they have been found guilty of malpractice--but for the innocent doctors, who have given their lives to medicine and who come forward every single day in a valiant effort to save and improve lives, I will stand on their side to make certain that they are treated reasonably and fairly.

Please do not turn to S. 11 as your only recourse because S. 11, being offered on the floor today, is one bill which is as unfair to malpractice victims as the insurance premiums are unfair to doctors in many places in America today. Let us work together--

as we can; as we did under the terrorism insurance legislation--to find a reasonable alternative.

Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. President, I rise today in strong support of S. 11, the Patients First Act, of which I am an original cosponsor. Throughout my career in public service, health care has been one of my top legislative priorities. We all want access to quality, affordable health care. And when the quality is not there, when people die or are truly sick due to negligence or other medical error, they should be compensated. But when healthy plaintiffs file meaningless lawsuits to coerce settlements or to shake the money tree to get as much as they can get, there's a snowball effect and all of us pay the price.

For the system to work, we must strike a delicate balance between the rights of aggrieved parties to bring lawsuits and the rights of society to be protected against frivolous lawsuits and outrageous judgments that are disproportionate to compensating the injured and made at the expense of society as a whole.

I have been concerned about this issue since my days as Governor of Ohio. I wish we had the outpouring of support for medical liability reform 6 years ago that I see now. In 1996, I essentially had to pull teeth in the Ohio Legislature to pass my tort reform bill. I signed it into law in October 1996. Three years later, the Ohio Supreme Court ruled it unconstitutional, and if that law had withstood the Supreme Court's scrutiny, Ohioans wouldn't be facing the medical access problems they are facing today: doctors leaving their practice, patients unable to receive the care they need and costs of health insurance going through the roof.

During my time in the Senate, I have continued my work to alleviate the medical liability crisis. To this end, I worked with the American Tort Reform Association to produce a study that captured the impact of this crisis on Ohio's economy in order to share these findings with my constituents and colleagues. Guess what we found? In Ohio, the litigation crisis costs every Ohioan $636 per year, and every Ohio family of four $2,544 per year. These are alarming numbers! In these economic times, families can not afford to pay $2,500 for the lawsuit abuse of a few individuals.

It is not just the individuals but the lawyers who bear some of the responsibility. I recently received my yellow and white pages. Look what I found on the front and back covers, advertisements for personal injuries. This is the yellow pages of the Cleveland phonebook and the white pages, advertisements on the front cover and on the back cover. One of them says: Medical malpractice. It talks about wrongful death, quadriplegic/paraplegic. They have pictures, birth injuries, nursing home negligence, Erb's palsy, cerebral palsy, heart attacks/late treatment, cancer late diagnosis, emergency room negligence.

It goes on to say, ``Our firm will advance expenses for our clients in most cases,'' and ``Clients do not have to repay expenses unless there is a successful outcome.'' This kind of stuff is in the yellow pages and on television every night.

When I got out of law school, solicitation was a violation of the canons of professional ethics of lawyers. That has all changed today. I think unfortunately so.

Next to the economy and jobs--the most important issue facing our country today is health care. In fact, it is a major part of what is wrong with the economy. We have too many uninsured, employers face spiraling costs, and those who have insurance face soaring premiums every year. The impact on

businesses is great. It affects their ability to offer health insurance to employees. Too many times, they pass on the added costs to their employees, whose family budgets are often already stretched razor thin. And then there are those who lose their jobs and can't afford COBRA, assuming their company is still in business and COBRA is available.

This issue is a personal one for me. My daughter-in-law, who is expecting her fourth child, recently learned from her obstetrician that after her delivery, she is no longer going to deliver any more babies. Her doctor is in a four-physician group, all of them obstetricians. They have never had any lawsuits against them, yet their insurance premiums have skyrocketed from $81,000 three years ago to over $381,000 today. That's $75,000 per person over a period of 3 years. How can physicians be expected to afford rate hikes like these? And how many babies do they have to deliver in order to pay for medical insurance. Think of somebody getting out of medical school that is an OB/GYN and being told: Before you open the door, you will have to pay a premium of $75,000 to $80,000 to practice medicine.

This crisis is out of control, and when you listen to the statistics, you will be astounded:

From 1994 to 2000, the median award for medical negligence in childbirth cases, $2.05 million, was the highest for all types of medical malpractice cases analyzed.

The median medical liability award jumped 43% in one year, from $700,000 in 1999 to $1 million in 2000; it has doubled since 1995.

Medical liability reform could produce $12.1 billion to $19.5 billion in annual savings for the Federal Government and increase the number of Americans with health insurance by up to 3.9 million people.

There are some who say the Federal Government doesn't have a dog in the fight. We certainly have, when medical liability reform could produce $12.1 billion to $19.5 billion in annual savings and increase the number of Americans covered by insurance.

Seventy-six percent of physicians in Ohio, surveyed by the Ohio State Medical Association, said rising professional liability premiums have impacted their willingness to perform high-risk procedures.

Over half said they are considering early retirement as a result of rising costs.

There has also been an immense jump in million-dollar verdicts. In 1995-97, a little over 36 percent of cases resulted in an award of $1 million or more. By 1998-99, the rate of million dollar awards reached 43 percent. By 2000-01, it was at 54 percent, with one quarter of all awards exceeding $2.7 million. It is going up like a rocketship.

These numbers are shocking, and they continue to grow. We feel this crisis very strongly in Ohio. Medical Liability Monitor ranked Ohio among the top five states for premium increases in 2002. OHIC Insurance Co., among the largest medical liability insurers in the State, reports that average premiums for Ohio doctors have doubled over the last 3 years. But don't listen only to the statistics. Let's talk about doctors--human beings who have practices and patients:

Dr. Perm Jawa, a Cleveland urologist, says that soaring liability premiums leave him in perpetual fear of career-ending lawsuits. ``I shy away from major cases now. Sometimes you know what the best thing is but you don't want to be doing it because there are potential complications with it,'' Jawa said. ``You're not as aggressive as you should be.''

In Columbus, Dr. David Stockwell has seen coverage for his two- physician OB-GYN practice climb to over $100,000 a year. And he expected his premiums to rise 20 to 25 percent in May.

Dr. Robert Norman, a geriatrician in Cuyahoga Falls, saw his annual medical liability premium jump $5,700 to $34,000 last year. He had been warned that it could reach $100,000 this year if he continued treating patients in nursing homes. But in May he received an unexpected ultimatum from his insurer and every other carrier he queried: agree to stop seeing nursing home patients or lose liability coverage altogether. As a result, 150 of Dr. Norman's patients had to find a new doctor.

Dr. Stephen Cochran lost his hospital privileges at Akron General Medical Center when his insurer's financial stability rating was downgraded recently. He is seeking another insurer, but meanwhile, he says, ``We receive daily phone calls from the patients: `Why aren't you here? Why aren't you seeing me? I want my doctor.' '' He says. ``It's been very stressful to a lot of the patients, particularly the geriatric patients . . . This [the malpractice crisis] has probably changed the nature of our practice more than anything that has happened in the last 10 to 20 years.''

After practicing for 15 years--their entire careers--in Cleveland, Dr. Christopher Magiera and his wife, surgeon Patricia Galloway, decided to leave Ohio to seek refuge from overwhelming liability premiums. Their insurance agent warned them that both would soon be paying $100,000 in annual premiums, up from $30,000 this year. Magiera and his wife decided to ``get out before the situation became hopeless,'' he said. They resettled in Wisconsin. Good for Wisconsin.

This is disgraceful. This crisis is forcing doctors to close their doors and greatly affecting patient access to care.

I want to commend the physicians' grassroots efforts--they are really starting to get attention for this issue. On May 3, 2003, I spoke in my home State of Ohio at the annual conference of the Ohio State Medical Association. I also participated in a physicians rally last October in Columbus, OH which was sponsored by the Ohio State Medical Association. I was impressed with all of the speakers, in particular, Dr. Evangeline Andarsio, an OB-GYN from Dayton, who described the changes in the profession and the effect of the litigation cloud:

The professional liability crisis is creating a barrier to

patients' access to good medical care, especially pregnant

women. . . . a paradigm shift needs to occur in our society.

Our laws must change to begin to reflect this paradigm shift.

After speaking at this rally, I received a letter from a young doctor, telling me that he was leaving Ohio because he couldn't afford his medical liability insurance premiums. Dr. Cly had received a notice from his insurance carrier that his premiums would be increased by $20,000-30,000. This, plus the $20,000 increase from last year, forced him to make the difficult decision of uprooting his family and his practice to another State. Dr. Cly was unable to make the insurance premiums and still take care of his student loan obligations and his family. Even though he has never had a malpractice claim or judgment against him during his residency training or his private practice years, his rates continued to skyrocket to the point where he could no longer afford them. His move to Fort Wayne, IN, will save him $50,000 per year in liability insurance.

In his letter to me, which I would like to submit for the record, Dr. Cly writes:

I represent young physicians in Ohio. Most young physicians

I speak with are all considering relocating to a place where

the ability to practice medicine is better and the liability

situation is more stable. I do not want to leave. I have

developed close relationships with many patients, families,

nurses, physicians, and staff here in Dayton, Ohio. I always

planned to retire here and raise my children here. It saddens

me greatly to have to make this decision. I feel as if I am

giving up and ``throwing in the towel'' by leaving, but I

believe my decision is the right one for my family.

I ask unanimous consent that this entire letter be printed in the Record.

For those of my colleagues who think medical liability reform is a State issue, I ask them to read this letter and see how the medical liability crisis transcends State lines--particularly my friends from the neighboring State of West Virginia. Our Ohio physicians who practice along the border are feeling the effects of their proximity to West Virginia and its favorable plaintiff's verdicts. They are feeling these effects in their increasing insurance premiums.

This is a nationwide crisis. And it's not only doctors crossing State borders to find better insurance rates--it's patients as well. Citizens living along the thousands of miles of State borders very often obtain their medical care across that line. Federal action is appropriate and critically necessary. Even more so because this crisis affects Federal health care programs, including Medicare and Medicaid, and costs the Federal Government billions of dollars every year.

In fact, the cost of this crisis to the economy is quite staggering. With over 41 million Americans without health insurance, including an estimated 1.25 million Ohioans at some time in 2001, we have to look at a new system--because this crisis is not only bad for doctors and patients, it also affects our competitiveness in the global marketplace. Many of our company's insurance costs have skyrocketed because of medical lawsuit abuse costs that their competitors just do not have.

The Nation's medical schools and students feel the effects of the medical liability crisis. According to the National Resident Matching Program, a private, nonprofit corporation, the number of American medical students applying to general surgery residency programs declined by 30 percent from 1992 to 2002. If this trend continues, less than 5 percent of medical school graduates will choose a career in surgery by 2005, and only 75 percent of general surgery residency positions will be filled by graduates of medical schools in the United States.

Thank God we have foreign doctors who have come to the United States of America. In Ohio, one out of six doctors is an Asian Indian.

And, in its 2003 biennial survey of medical residents in their final year of training, the firm of Merritt, Hawkins & Associates, MHA, noticed a disturbing trend. When asked if they would study medicine or select another field if they had their education to begin again, one quarter of all residents surveyed indicated they would select another field--this compared with only 5 percent in 2001. It is sweeping across the country and everybody is getting hit. It is going to have a disastrous effect--it already is--and we have to do something about it. When asked to identify what factors caused them a significant level of concern, sixty-two percent of residents indicated that malpractice is a significant area--compared to just 15 percent of residents surveyed 2 years ago.

Specific medical specialties feel the crisis more than others. A September 25, 2002 report by the American Association of Neurological Surgeons, Congress of Neurological Surgeons, and Council of State Neurological Societies, entitled ``Neurosurgery in a State of Crisis'' found that professional liability costs among Ohio neurosurgeons have skyrocketed since 2000. For a $5 to $7 million coverage policy, in 2000, a physician would have paid $75,000. By 2002, this number had jumped to $168,000.

Not only in Ohio, but across the nation, between 2000 and 2002, the average premium increase was 63 percent. As a result, of those neurosurgeons polled: 14 percent said they plan to, or are considering moving; 25 percent said they either plan to, or are considering, retiring; 34 percent said they already do, or are considering, restricting their practices.

In my hometown of Cleveland, OH, at one of our hospitals, the neurosurgeons just left. There was no one there to take care of emergency patients, although just recently because of something the Cleveland Clinic did, they agreed to step in, but there were four neurosurgeons serving about 15 hospitals, and they just decided they were getting out. Who is going to pick that up for them? What is going to happen to those patients?

Patients cannot get emergency medical treatment because fewer neurosurgeons are covering ERs, and trauma hospitals are shutting their doors and diverting patients with serious head and spinal cord injuries to other locations.

Patients cannot find a neurosurgeon close to home because neurosurgeons are moving to States where insurance costs are relatively stable.

Further exacerbating this problem is the high retirement rate. According to the American Board of Neurological Surgery, in 2001 alone, over 300 neurosurgeons retired. This is 10 percent of our Nation's neurosurgical workforce. And for the first time in over a decade, there are now fewer than 3,000 board certified neurosurgeons practicing in the U.S.

Earlier this year, I participated in a press conference with my distinguished colleague from Pennsylvania, Senator Santorum, and my distinguished colleague from Nevada, Senator Ensign. During this conference, I met a doctor from Florida who had rushed his son to the hospital with his head hemorrhaging, only to find that there were no pediatric neurosurgeons there. He asked if a regular neurosurgeon could help, but they could not because pediatric neurosurgeons require special liability insurance. Due to the exorbitant costs of insurance for pediatric neurosurgeons, only seven were practicing in the State of Florida and the nearest one was 150 miles away. Fortunately, the boy survived, but this type of scenario does not need to happen.

I was recently speaking with some doctors in Cleveland who told me that the nephrologists practicing there will not even look at a baby facing kidney problems, because adding pediatric work to their existing practices will cause their premiums to skyrocket.

The effects of the medical liability crisis can also be felt by the obstetrics-gynecologists community. In fact, obstetrics-gynecology is among the top three specialties in the cost of professional liability insurance premiums. Nationally, insurance premiums for OB-GYNs have increased dramatically: the median premium increased 167 percent between 1982 and 1998. The median rate rose 7 percent in 2000, 12.5 percent in 2001, and 15.3 percent in 2002 with increases as high as 69 percent, according to a survey by Medical Liability Monitor, a newsletter covering the liability insurance industry.

According to Physicians Insurance Association of America, OB-GYNs were first among 28 specialty groups in the number of claims filed against them in 2000. OB-GYNs were the highest of all specialty groups in the average cost of defending against a claim in 2000, at a cost of $34,308. In the 1990s, they were first--along with family physicians- general practitioners--in the percentage of claims against them closed with a payout of 36 percent. They were second, after neurologists, in the average claim payment made during that period.

Although the number of claims filed against all physicians climbed in recent decades, the phenomenon does not reflect an increased rate of medical negligence.

That is something we should point out. It does not reflect an increased rate in negligence.

In fact, OB-GYNS win most of the claims filed against them. A 1999 American College of Obstetrics and Gynecology survey of its membership found that over one-half of claims against OB-GYNS were dropped by plaintiffs' attorneys, dismissed or settled without a payment. Of cases that did proceed, OB-GYNS won seven out of ten times. Enormous resources are spent to deal with these claims, only 10 percent of which are found to have merit. The costs to defend these claims can be staggering and often mean that physicians invest less in new technologies that help patients. In 2000, the average cost to defend a claim against an OB-GYN was the highest of all physician specialties: $35,000.

According to an ACOG survey of its members, the typical OB-GYN is 47 years old, has been in practice for over 15 years, and can expect to be sued 2.53 times over his or her career. Over one-fourth of ACOG fellows have even been sued for care provided during their residency. In 1999, 76.5 percent of ACOG fellows reported they had been sued at least once so far in their career. The average claim takes over 4 years to resolve.

Practicing medicine and having lawsuits hanging over your head, and only 10 percent are well taken, can you imagine, Mr. President, how it is to practice medicine under those conditions?

How does all of this affect patients' access to care?

As premiums increase, women's access to general health care-- including regular screenings for reproductive cancers, high blood pressure and cholesterol, diabetes, and other serious health risks-- will decrease. OB/GYNs are disappearing.

It leads to more uninsured women. Last year, 11.7 million women of childbearing age were uninsured. Without medical liability reform, a greater number of women ages 19 to 44 will move into the ranks of the uninsured.

The legislation we are debating today gets us on our way to enacting meaningful medical liability reform.

There are going to be a lot of excuses. We are going to hear from some colleagues as to why this is not a good thing, and they are going to get into specific caps and so forth.

The fact is, this legislation provides a commonsense approach to our litigation problems that will help keep consumers from bearing the cost of costly and unnecessary litigation, while making sure those with legitimate grievances have recourse to the courts.

That is what we want to do. We want to make sure those who are legitimately harmed have recourse to the courts and are compensated.

The bill sets sensible limits on noneconomic damages to help restrain medical liability premium increases, while ensuring unlimited economic compensation for patients injured by negligence.

In other words, there is no cap on economic compensation. All of those issues that can be documented, you can be reimbursed for. It limits attorney's fees so the money awarded in the court goes to the injured parties, who are the people who really need it. It mandates that relevant medical experts testify in malpractice trials, as opposed to highly paid ``expert witnesses'' who are often used to influence juries and foster abuses in the legal system. It also allows physicians to pay any large judgments against them over a period of time in order to avoid bankruptcy, and requires all parties to participate in alternative dispute resolution proceedings, such as mediation or arbitration, before going to court.

It is a sensible way of handling a problem in our country and, at the same time, looking at the societal costs that are being paid today by all Americans.

Providing this commonsense approach to our medical liability premiums is a win-win situation. Patients would not have to give away large portions of their judgments to their attorneys, truly injured parties can recover 100 percent of their economic damages, punitive damages are reserved for those cases that are truly justified, doctors and hospitals will not be held liable for harms they did not cause, and physicians can focus on doing what they do best: practicing medicine and providing health care.

I end with the words of Dr. Andarsio, whom I quoted earlier:

Help us to maintain an ability to have a practice that

offers patients excellent access to care--to continue one of

the most important relationships in our lives--the doctor-

patient relationship--thus maintaining individualized and

compassionate care.

In my own particular case--and it may be why I am probably more fired up about this than some people in the Senate--when I was about 2 years old, I contracted osteomyelitis.

It is a disease in the marrow of the bone. There was a lot of controversy among a couple of doctors on how I should be treated for that osteomyelitis. There was one physician who had the courage to try some new things. His name was Dr. Holloway. Dr. Holloway saved my life. I will not ever forget going to his funeral.

There are a lot of other people around this country like George Voinovich who are in need of access to orthopedic surgeons and other types of medical care. I want them to have the same opportunity I had, to have a life. That is what this is about.

I suggest the absence of a quorum.