Reliable Medical Justice Act

Mr. President, I rise today to introduce a bill that will help bring about a more reliable system of medical justice for all Americans.

Earlier this month, we had a robust debate on a critical issue-- medical liability reform. Though a majority of the Members of this body wanted to begin working to pass the bill, we didn't have the 60 Senators necessary to begin the real work on the legislation.

I co-sponsored that bill, the Patients First Act, and I still support it. Passing the Patients First Act would be an important short-term step to controlling the excesses in our legal system that have sent medical liability insurance premiums through the roof. Skyrocketing premiums are forcing doctors to move their practices to States with better legal environments and lower insurance premiums. This is endangering the availability of critical healthcare services in many areas of Wyoming and other states.

Throughout our debate, I heard many of my colleagues say that they wanted to work on this issue, but that they simply could not support the bill as it stood. We heard that the bill approaches the issue from too narrow of a perspective. We heard that the bill's caps on non- economic damages are unfair to patients, despite the fact that the bill places no limits whatsoever on a patient's right to recover all quantifiable economic damages.

While I disagree with my colleagues who oppose the Patients First Act, I

respect their opposition. I also trust that they sincerely want to help solve our Nation's medical liability and litigation crisis.

During the debate this month, I noticed something interesting. While we argued the ``pros and cons'' of the bill, no one stood up to defend our current system of medical litigation. Now, we heard a lot about the caps, and the insurance industry, and we heard Senators say that ``Yes, there is a problem, but the bill before us won't solve it.''

One thing we didn't hear was a rousing defense of our medical litigation system. Even some of the lawyers in this body agreed that frivolous lawsuits are a problem and that our medical litigation system needs reform.

Why didn't we hear anyone defend the merits of our current medical litigation system? It's because our system doesn't work. It simply doesn't work for patients or for healthcare providers.

Compensation to patients injured by healthcare errors is neither prompt nor fair. The randomness and delay associated with medical litigation does not contribute to timely, reasonable compensation for most injured patients. Some injured patients get huge jury awards, while many others get nothing at all.

Let's look at the facts. In 1991, a group of researchers published a study in the New England Journal of Medicine. The study, known as the Harvard Medical Practice Study, was the basis for the Institute of Medicine's estimate that nearly 100,000 people die every year from healthcare errors.

As part of their study, the researchers reviewed the medical records of a random sample of more than 31,000 patients in New York State. They matched those records with statewide data on medical malpractice claims. The researchers found that nearly 30 percent of injuries caused by medical negligence resulted in temporary disability, permanent disability or death. However, less than 2 percent of those who were injured by medical negligence filed a claim. These figures suggest that most people who suffer negligent injuries don't receive any compensation.

When a patient does decide to litigate, only a few recover anything. Only one of every ten medical malpractice cases actually goes to trial, and of those cases, plaintiffs win less than one of every five. In addition, patients who file suit and are ultimately successful must wait a long time for their compensation--the average length of a medical malpractice action filed in state court is about 30 months.

While the vast majority of malpractice cases that go to trial are settled before the court hands down a verdict, the settlements even then don't guarantee that patients are compensated fairly, particularly after legal fees are subtracted. Research shows that for every dollar paid in malpractice insurance premiums, about 40 cents in compensation is actually paid to the plaintiff--the rest goes for legal fees, court costs, and other administrative expenditures.

To sum up: most patients injured by negligence don't file claims or receive compensation. Few of those that do file claims and go to court recover anything, and those who are successful wait a long time for their compensation. And those who settle out of court end up receiving only 40 cents for every dollar that healthcare providers pay in liability insurance premiums.

It's hard to say that our medical litigation system does right by patients in light of those facts. Unfortunately, our system doesn't work for healthcare providers either.

Earlier, I spoke about those Harvard researchers who found that fewer than 2 percent of those who were injured by medical negligence even filed a claim. As they reviewed the medical records for their study, the researchers also found another interesting fact--most of the providers against whom claims were eventually filed were not negligent at all.

That's right--most providers who were sued had not committed a negligent act.

In matching the records they reviewed to data on malpractice claims, the Harvard researchers found 47 actual malpractice claims. In only 8 of the 47 claims did they find evidence that medical malpractice had caused an injury. Even more amazingly, the physician reviewers found no evidence of any medical injury, negligent or not, in 26 of the 47 claims. However, 40 percent of these cases where they found no evidence of negligence nonetheless resulted in a payment by the provider. Basically, the researchers found no positive relationship between medical negligence and compensation.

That study was based on 1984 data. The same group of researchers conducted another study in Colorado and Utah in 1992, and they found the same thing. As in the 1984 study, they found that only 3 percent of patients who suffered an injury as a result of negligence actually sued. And again, physician reviewers could not find negligence in most of the cases in which lawsuits were filed.

Now, I assume that the patients who sued had either an adverse medical outcome, or at least an outcome that was less satisfactory than the patient expected. But our medical litigation system is not supposed to compensate patients for adverse outcomes or dissatisfaction--it's supposed to compensate patients who are victims of negligent behavior. It's supposed to be a deterrent to substandard medical care.

It's not fair to doctors and hospitals that they must pay to defend against meritless lawsuits. Nor is it fair that they must face a choice between settling for a small sum, even if they aren't at fault, so that they avoid getting sucked into a whirlpool of our medical litigation system.

It's not hard to understand why physicians and hospitals and their insurers want to stay out of court. When they lose, the decisions are increasingly resulting in mega-awards based on subjective ``non- economic'' damages. The number of awards exceeding $1 million grew by 50 percent between the periods of 1994-1996 and 1999-2000. Today, more than half of all jury awards exceed $1 million.

As a result, when a patient suffers a bad outcome and sues, providers have an incentive to settle the case out of court, even if the provider isn't at fault. But is this how our medical litigation system is supposed to work--as a tool for shaking down our healthcare providers?

Let's face it--our medical litigation system is broken. It doesn't work for patients or providers. Even worse, it replaces the trust in the provider-patient relationship with distrust.

Then, when courts and juries render verdicts with huge awards that bear no relation to the conduct of the defendants, this destabilizes the insurance markets and sends premiums skyrocketing. This forces many physicians to curtail, move or drop their practices, leaving patients without access to necessary medical care. This is a particular problem in states like Wyoming, where we traditionally struggle with recruiting doctors and other healthcare providers.

Perhaps we could live with this flawed system if litigation served to improve quality or safety, but it doesn't. Litigation discourages the exchange of critical information that could be used to improve the quality and safety of patient care. The constant threat of litigation also drives the inefficient, costly and even dangerous practice of ``defensive medicine.''

Yes, indeed, defensive medicine is dangerous. A recent study found that one of every 1200 children who receive a CAT scan may die later in life from radiation-induced cancer. Knowing this puts a physician faced with anxious parents in a difficult situation. Does the doctor use his or her professional judgment and tell the parents of a sick child not to worry, or does the doctor order the CAT scan and subject the child to radiation that is probably unnecessary, just to provide some protection against a possible lawsuit?

We have a medical litigation system in which many patients who are hurt by negligent actions receive no compensation for their loss. Those who do receive compensation end up with about 40 cents of every premium dollar after legal fees and other costs are subtracted. And the likelihood and the outcomes of lawsuits and settlements bear little relation to whether or not a healthcare provider was at fault.

We like to say that justice is blind. With respect to our medical litigation system, I would say that justice is absent and nowhere to be found.

During our debate on the Patients First Act, I said that the current medical liability crisis and the shortcomings of our medical litigation system make it clear that it is time for a major change. I also said that regardless of how we voted, we all should work toward replacing the current medical tort liability scheme with a more reliable and predictable system of medical justice.

Today, I am introducing a bill that would help achieve that goal.

Most of us are familiar with the report on medical errors from the Institute of Medicine, also known as the IOM. Many of us may be less familiar with another report that the IOM published earlier this year. That report is called ``Fostering Rapid Advances in Healthcare: Learning from System Demonstrations.''

Our Secretary of Health and Human Services, Tommy Thompson, challenged the IOM to identify bold ideas that would challenge conventional thinking about some of the most vexing problems facing our healthcare system. In response, an IOM committee developed this report, which identified a set of demonstration projects that committee members felt would break new ground and yield a very high return-on-investment in terms of dollars and health.

Medical liability was one of the areas upon which the IOM committee focused. The IOM suggested that the federal government should support demonstration projects in the states. These demonstrations should be based on ``replacing tort liability with a system of patient-centered and safety-focused non-judicial compensation.''

The bill I am introducing today is in the spirit of this IOM report. This bill, the Reliable Medical Justice Act, would authorize funding for States to create demonstration programs to test alternatives to current medical tort litigation.

The funding to States under this bill would cover planning grants for developing proposals based on the models or other innovative ideas. Funding to States would also include the initial costs of getting the alternatives up and running.

The Reliable Medical Justice Act would require participating states and the Federal Government to collaborate in continuous evaluations of the results of the alternatives as compared to traditional tort litigation. This way, all States and the federal government can learn from new approaches.

By funding demonstration projects, I believe Congress could enable States to experiment with and learn from ideas that could provide long- term solutions to the current medical liability and litigation crisis.

In introducing this bill, I wanted to provide some alternative ideas that would contribute to the debate. As a result, the bill describes three models to which states could look in designing their alternatives.

For instance, a State could provide healthcare providers and organizations with immunity from lawsuits if they make a timely offer to compensate an injured patient for his or her actual net economic loss, plus a payment for pain and suffering if experts deem such a payment to be appropriate. This could give a healthcare provider who makes an honest mistake the chance to make amends financially with a patient, without the provider fearing that their honesty would land them in a lawsuit.

Another idea would be for a state to set up classes of avoidable injuries and a schedule of compensation for them, and then establish an administrative board to resolve claims related to those injuries. A scientifically rigorous process of identifying preventable injuries and setting appropriate compensation would be preferable to the randomness of the current system.

Still another option would be for a state to establish a special healthcare court for adjudicating medical malpractice cases. For this idea to work, the State would need to ensure that the presiding judges have expertise in and an understanding of healthcare, and allow them to make binding rulings on issues like causation compensation, and standards of care.

We already have specialized courts for complicated issues like taxes and highly charged issues like substance abuse and domestic violence. With all the flaws in our current medical litigation system, perhaps we should consider special courts for the complex and emotional issue of medical malpractice.

I believe one thing in our medical liability debate is absolutely clear--people are demanding change. Ten States have passed some liability reform in the past year, and another 17 have debated it. States are heeding this call for change, and Congress should support those efforts.

My own State, Wyoming, had a lively legislative debate on medical liability reform this year, but we have a constitutional amendment that prohibits limits on the amounts that can be recovered through lawsuits. The Wyoming Senate considered a bill to amend our State's constitution to create a commission on healthcare errors. That commission would have had the power to review claims, decide if healthcare negligence had occurred, and determine the compensation for the death or injury according to a schedule or formula provided by law. However, the bill died in a tie vote on the Wyoming Senate floor.

According to one of the sponsors of the bill, Senator Charlie Scott, one of the biggest obstacles to passage was the uncertainty surrounding this new idea. No one had any basis for knowing what a proper schedule or formula for compensation would be. No one knew how much the system might cost, or how much injured patients would recover compared to what they recover now.

Senator Scott wrote me to say that federal support for finding answers to these questions might help the bill's sponsors sufficiently respond to the legitimate concerns of their fellow Wyoming legislators. We should be helping state legislators like Senator Scott develop thoughtful and innovative ideas such as the one he has proposed. That's one of the reasons I am offering this bill.

Clearly, the American people and their elected representatives have identified the need to reform our current medical litigation system. The United States Senate did not vote to proceed to the Patients First Act this month, but no member of this body denied that there is a medical liability crisis, or that Congress needs to act sooner rather than later.

While we continue that debate, we ought to lend a hand to States that are working to change their current medical litigation systems and to develop creative alternatives that could work much better for patients and providers. The States have been policy pioneers in many areas-- workers' compensation, welfare reform, and electricity de-regulation, to name three. Medical litigation should be the next item on the agenda of the laboratories of democracy that are our 50 States.

No one questions the need to restore reliability to our medical justice system. But how do we begin the process? One way is to foster innovation by encouraging States to develop more rational and predictable methods for resolving healthcare injury claims. And that is what the Reliable Medical Justice Act aims to do.

In the long run, we would all be better off with a more reliable system of medical justice than we have today. I know that my fellow Senators recognize this, so I hope my colleagues on both sides of the aisle will work with me on this legislation.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, the U.S. economy is still the greatest economy in the world and our credit markets have helped to make that happen. During the past decade, our credit markets have taken advantage of technology and innovation in order to provide more consumers with more timely credit approvals and with more financing options. Nowhere is there a better example of this than our housing market.

Today, the time it takes to review a mortgage application and approve it has been cut drastically by our financial institutions. Consumers find that they have a wide array of financing options they can choose from to secure the purchase of a home--from fixed-rated loans to variable-rate loans, or even adjustable rate loans. While the wide variety of choices has helped more families to purchase homes in the past decade, even more families could buy homes if they understood how the credit market works.

Although there are many pluses to the expansion of the availability of credit there is also a downside. Individuals may get in over their heads when too much credit is made available to them. In addition, identity theft is a bigger problem than it has been before. Consumers need to educate themselves about the potential problems they might face and how to avoid them. Increasing consumer financial literacy is not just about providing information, however, it is about giving families the proper informational tools so that they can put their financial affairs in order.

Today, my friend and colleague, Senator Stabenow and I are introducing the ``Financial Literacy Community Outreach Act'' to help to bring together all of the federal government's financial literacy programs under one roof.

The Department of Treasury, the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Securities and Exchange Commission, the Department of Housing and Urban Development, and the Department of Labor are just a few of the many federal agencies that have established excellent financial literacy programs and initiatives. These programs cover a wide variety of topics ranging from how to save, spend, and invest to programs that provide guidance on how to prepare for retirement, select a pension plan, or purchase a home. Still others help individuals avoid the threat of identity theft.

Unfortunately, consumers attempting to find financial literacy information from the federal government may find that information scattered throughout the government. Our bill would provide a one-stop- shop where consumers could find the appropriate financial literacy programs for their needs. A single web site and a toll-free number will go a long way toward bringing this vital information to the individuals and families who need it.

In addition, the bill establishes the Financial Literacy Commission, a body comprised of the heads of the federal agencies with financial literacy programs. The Commission will ensure that the federal government has a cohesive and coordinated federal policy on financial literacy as it provides Congress with vital information on what can be improved in our government's financial literacy outreach efforts. In addition to the web site and the toll-free number, the Commission will highlight successful public/private partnerships already existing around the country.

One such partnership is thriving in my home state of Wyoming. The Wyoming Partners in HomeBuyer Education, led by the Wyoming Community Development Authority, includes local banks, real estate agents, the University of Wyoming, the U.S. Department of Agriculture, the U.S. Department of Housing and Urban Development, and Fannie Mae, in the effort to provide distance learning to potential home-buyers through the use of compressed video technology. This training program is perfect for a state like Wyoming in that home-buyers in rural communities have access to all of the essential elements of the home buying experience just like their urban community counterparts.

To date, more than 3,000 individuals have completed the training program and it has led to making the home-buying process easier and more understandable for rural and urban families alike.

I strongly believe that this bill will help millions of families find the appropriate financial literacy materials they need to make better credit and investment decisions.

It is my pleasure to be cosponsoring this bill with Senator Stabenow because of our shared concern about making financial literacy available to more families across the country. In addition, I would like to recognize Senator Sarbanes' tremendous effort to focus our attention on financial literacy, both when he was Chairman of the Committee on Banking, Housing and Urban Affairs last year and as Ranking Member of the Committee this year. He has been an extraordinary advocate for this important issue. Chairman Shelby of the Committee has also recognized the importance of this issue, as just this week, it was the subject of a hearing by the Committee. I look forward to working with my colleagues on the Committee and in the full Senate to ensure that we expand and build upon the government's present financial literacy efforts to help individuals and families increase their knowledge of and access to our credit and investment markets.

Mr. President, every morning, from the time we wake up to the time we turn out the lights and go to sleep, we all spend a good portion of our day in cyberspace. Probably without thinking, each time we head out to the internet, we broadcast some very specific information about our lives as we use our computers for email. Each time we use our cell phones we rely on a sense of privacy about the information we convey, which may not be present. And, when we use hand held devices to send quick messages back and forth to friends, coworkers and family we assume no one else is listening or receiving our information, which often includes social security numbers, family names and even credit card and pin numbers.

Cyberspace is a high tech criminal's dream and it has helped contribute to the fastest growing crime in America--identity theft.

Simply put, identity theft is the ability to impersonate someone else and steal their credit, their money and even their identity for their own use.

Although the use of high-tech devices has certainly contributed to the proliferation of identity theft, many individuals have been victimized by simple criminals who have carefully picked through trash cans and mailboxes to find old receipts and social security numbers. Regardless of the medium through which the information is collected, identity theft is the result of criminals who have learned how to manipulate a growing network of information--some public, some private--and then use that data to their own advantage.

The problem with identity theft is that it is not confined to one state. It affects Americans from every walk of life from coast to coast. Some Americans may discover that someone else has been using their social security number to obtain fraudulent employment, while others learn that people have been using fraudulent identification cards to obtain lines of credit and then leaving innocent victims to deal with the bills they left behind.

People from small States like Wyoming are not immune to this new crime wave. Although there are only 493,000 people in Wyoming, we have the same rate of identity theft per capita as is present anywhere else in the United States. That is why we have to approach this issue from every angle, taking a systemic approach that includes prevention, enforcement and assistance to victims of identity theft.

Today, we will take the first step with victim's assistance for this crime. I believe we have to provide some real options for our constituents who are trying to recover from the trauma that identity theft has caused in their lives. That is why my colleague from Washington and I are introducing legislation that will make it easier for victims to get the information they need to begin reversing the damage and lasting effects of this crime. Our bill, the Identity Theft Victim's Assistance Act of 2003, is very similar to a bill we offered last year that passed the Senate unanimously in November. I expect and hope for the same result this year since this is a growing problem and the need for action on this issue grows more urgent with each passing day.

Our bill includes key provisions that would allow victims to work with businesses to obtain information related to cases of identity theft and then contact credit reporting agencies to block false information on credit reports. In drafting this legislation we worked with all of the stakeholders to ensure a balance between the needs of consumers and the needs of small businesses, banks and other credit agencies.

The reintroduction of this bill is timely given the recent hearings in the Senate Banking and Commerce Committees and recent action by both the House and Administration.

Earlier this month, the House Financial Services Subcommittee reported a bill called the Fair and Accurate Credit Transactions Act. Also known as the FACT Act, the bill includes a provision nearly identical to Section 4 of our bill. Section 4 of our bill requires consumer credit reporting agencies to block information that appears on a victim's credit report as a result of identity theft, provided the victim did not knowingly obtain goods, services or money as a result of the blocked transaction.

Our provision, which amends the Fair Credit Reporting Act, was also addressed in a recent hearing before the Senate Banking Committee. On July 10, the Chairman of the Federal Trade Commission testified that ``blocking would mitigate the harm to consumers' credit record that can result from identity theft'' and recommended that this practice be codified.

I am also encouraged by similar recommendations from the Treasury Department that would require credit reporting agencies to cease reporting allegedly fraudulent account information on consumer reports when the consumer submits a police report or similar document, unless there is a reason to believe the report is false.

Providing consumers with the tools necessary to recover from identity theft is the first step in providing real relief to the hundreds of thousands of individuals whose lives have already been turned upside down by identity theft. I urge my colleagues to work with me as we move forward on this important issue and make progress on the reauthorization of critical legislation like the Fair Credit Reporting Act. We must take action this year before the crime of identity theft hurts the hundreds of thousands of working people and families who are expected to become victims this year.

Mr. President, I ask unanimous consent that the following Senators be added as cosponsors of S. 2207, the Pregnancy and Trauma Care Access Protection Act: Senator Fitzgerald, Senator Cornyn, and Senator Hatch.

I thank the Chair.

I wish to express my gratitude to the majority leader for his important comments. He brings an expertise to this debate no one else in this body can offer by virtue of his training, education, and extensive practice as a medical doctor in Tennessee. I am not going to speak from the perspective of a doctor because I am not one. I am going to speak from the perspective of a patient because, like it or not, I will be one at some point in my life, and from the standpoint of other prospective patients which would include not only my family and loved ones, but literally everyone within the sound of my voice.

I want to express again my appreciation that the majority leader would bring this issue back up. This is our third attempt in recent months to enact significant medical liability reform. The reason why it is so important to bring this issue back up is to ask our colleagues across the aisle who have obstructed our ability to go to a vote on this important issue to reconsider because the truth is their obstruction of our ability to get meaningful medical liability reform is not hurting doctors only, it is not hurting insurance companies only, it is hurting everyone who has been or will be a patient in a medical care facility or at the hands of a doctor.

We have had the opportunity to discuss these issues before, as I said, but before I get into what I consider the meat of this issue--and that is access to good quality health care for all Americans--let me say on other issues that affect American competitiveness in terms of our ability to compete in a global economy, the ability of employers to provide health insurance for their employees, which is diminishing day by day because the costs of health care continue to go up in part because of our broken medical liability system, that, in turn, puts pressure on the uninsured in our society. Where employers are unable to carry medical insurance on their employees, that means that too many people who cannot afford health care coverage are forced to emergency rooms where they know they can and will be treated. In the vast majority of those cases, they could be more efficiently, more humanely, and more cost-effectively treated in a primary care setting in a doctor's office or in a clinic, but because of the pressures being put on our health care system by a broken liability component, it is hurting us in so many different ways.

As I said, I want to talk about access, but it also hurts us in terms of our global competitiveness, in terms of job creation and job growth, and in terms of diminished access to health care because people have nowhere else to turn if they do not have medical insurance, except the emergency room where they know they can and will be treated but in a way that is insufficient, inhumane, and certainly not cost effective and causes a host of other problems in all of our big cities and everywhere else where emergency rooms are frequently put on divert status because they are so clogged up with cases that probably, in a medical sense, should not be there because they could be treated more cost effectively and more humanely in another setting, but they are there and then the true emergencies are diverted to emergency rooms that are farther away.

The majority leader, Dr. Frist, talked about the medical consequences of delayed treatment when people have to travel sometimes many miles just to get treated, what complications can occur because of a traumatic injury or because a baby that is delivered because the mother cannot find a hospital that can take her nearby. My point is, it creates a cascading of problems that are not just limited to medical liability but which have a lot of ramifications and a huge ripple effect.

Unfortunately, our colleagues on the other side of the aisle are offering no solutions but are merely trying to score political points, trying to divert the attention to other nonissues and will not allow us to do what we have been sent here by the American people to do and that is to pass legislation that will meaningfully and significantly improve the quality of their lives.

We have had a chance to deal with this medical liability problem before and, unfortunately, we have not done so. My hope is that our colleagues will reconsider and we will do so today. If those on the other side of the aisle are truly serious about their concern for the American people and the quality of health care they receive, I hope they will join us in passing the bill we are discussing today.

The solutions to their professed concerns are right before us. They just need to allow an up-or-down vote. I hope the American people are paying close attention to what is happening, because if we do not get an up-or-down vote it is they who will pay the price for those who would prefer to score political points over actually producing results.

The bill offered by the Senator from New Hampshire, the distinguished chairman of the HELP Committee, the Health, Education, Labor, and Pensions Committee, is designed to improve access to health care, both for women who need obstetrical and gynecological care and for patients who need emergency care.

As I am sure every Member of this body has, I have heard complaints from our constituents about how badly the system is broken.

There are those on the other side of the aisle who would say that, because we have been rejected twice before, by bringing it up a third time this is somehow just a political exercise. I assure them that is not true. We were not allowed to vote before, despite support from a bipartisan majority.

The bottom line is, we are simply unwilling to put up with or to accept, without a fight, the kind of obstruction we have seen on this and so many other important issues.

This bill would provide desperately needed relief to a health care system that is in crisis, focusing especially on emergency room doctors and obstetrics, baby doctors, to critical areas that deserve our support.

This chart has been seen before, and my colleagues will notice that this chart reflects in red States that are in crisis because of the difficulty of purchasing medical liability insurance, the huge increases in cost which have simply caused medical doctors either to retire early or to move to States that have provided some commonsense reform or just discouraging people from getting into the medical profession at all.

The States in red, including my State of Texas, are indicated as States in crisis. The ones in yellow are the States showing problem signs but do not yet qualify as a crisis State, and

the ones in white are States that are currently considered to be OK. I would not suggest by saying that they are currently OK that they have no problems. It is just that they have not gotten to the point that conditions have in my State and other States indicated in red.

The truth is, this crisis is not something that just popped up this week. It is a crisis that we had last fall when we were blocked from bringing up comprehensive medical liability reform for an up-or-down vote. It was a crisis that existed a month ago when we were blocked from having an up-or-down vote for legislation that offered immediate help for mothers and their babies, and it remains a crisis today even as we attempt to debate this legislation and bring it up for another vote.

The fact is, frivolous lawsuits are causing escalating medical malpractice insurance premiums which are driving doctors out of practice. We can debate what the cause of that is, but we cannot debate the result. It is a fact. Indeed, opponents of this legislation do not appear to debate the fact of the result--that is, doctors leaving, retiring, not going into practice, access being denied. They just want to say there may be other causes, but they do not want to deal with this cause because, unfortunately, an important constituency, the personal injury trial lawyers, simply are unwilling to agree that any change in this current broken system can be made.

The problem is that those who are preventing us from taking up this legislation are simply caving in to the demands of this narrow special interest group that are prospering mightily, that are getting rich off the current system, at the same time that the rest of America is getting hurt.

This is a picture of a doctor formerly who practiced in Fort Worth, TX, representing medical specialists, especially neurosurgeons, orthopedic surgeons, obstetricians, and emergency physicians, who are being forced to retire early or move their practices to States where effective liability reforms are in place.

For example, Dr. Malone comes from my home State. He is an orthopedic surgeon who has practiced more than 20 years in Fort Worth, TX. He reluctantly was forced to leave his practice, citing the extreme costs of liability insurance for physicians as being too much of a financial burden for him to bear.

We simply cannot expect physicians to practice their chosen profession after their lengthy education and training and not be able to provide for their families. We don't expect them to do it at a loss to themselves and their families. I don't think we can blame them, when the costs of doing business exceed what comes in the door such that they simply have no choice but to leave.

In the State of Texas, this crisis, particularly as it regards baby doctors, obstetrician-gynecologists, means that out of 254 counties of Texas, 154 of them have no OB/GYN specialist. In other words, a woman who is pregnant and perhaps needs prenatal care, so increasing the chances her baby will be delivered healthy, must travel to another county in order to get that prenatal care from a specialist; or once she goes into labor, she must travel to another county to have the doctor, medical specialist in obstetrics, deliver that baby. This means almost 6 out of the 10 counties in my home State alone have no doctor specializing in obstetrics, representing approximately 2 million Texans in my State.

Let me talk about another story, another case that is worth referring to also in my State. Just last year a pregnant woman showed up at Dr. Lloyd Van Winkle's Castroville office in south Texas. She showed up in Dr. Van Winkle's Castroville office less than 10 minutes from delivery of her baby. Her family doctor in Uvalde, another Texas town, had recently stopped delivering babies altogether, citing medical liability concerns, and this pregnant woman was trying to drive the 80 miles to her San Antonio doctor from her home in Uvalde.

Let me give another story about a woman by the name of Denise Payne. Denise Payne walked into an emergency room recently. The doctors there did not want to treat her. She said, ``They didn't want to touch me because I was pregnant,'' this 38-year-old pregnant woman, who was 6 weeks along in her pregnancy at that time.

Luckily for Denise Payne the delay getting treatment didn't kill her. Although she couldn't get a kidney biopsy in Corpus Christi on the gulf coast of Texas, she was able to get one about 150 miles away in San Antonio, but she doesn't blame the doctors. ``I would say it's because of all the lawyers scaring the doctors,'' she said. ``They are scared to death to treat you.''

Indeed, that reminds me of other situations where I have heard doctors, concerned about their patients, but saying because of the broken liability system, every time you walk into an examining room, every time you walk into the emergency room, every time you walk into the delivery room, you are putting at risk everything that you have worked a lifetime to build for yourself and your family. Physicians and others are simply not able to put up with it, resulting in a crisis that even Ms. Payne, who no doubt was frustrated by her inability to get doctors to treat her in Corpus Christi, had to drive 150 miles away to get treated because she was pregnant and she needed a kidney biopsy. But because she was a higher risk patient who is at a higher risk of medical complications but also a higher risk of litigation, the doctors were scared to death to treat her, so she had to travel a long way to get that treatment.

These stories are not unique to Texas. Let me tell you about Linda Sallard of Arizona. At 2 a.m. on the morning of March 20, 2002, 22- year-old Melinda Sallard woke up with labor pains. She and her husband hopped into their car and started driving the 45 miles to Sierra Vista, which housed the only hospital within a 6000-square-mile area with obstetricians able to deliver babies. En route, they passed the Copper Queen Community Hospital, which was forced to close its maternity unit just 2 months earlier because all the practitioners able to deliver babies had lost their medical liability coverage.

Just 3 miles past Copper Queen, which is where they had a hospital that could have delivered her baby but had since closed its delivery facilities because of medical liability concerns, just 3 miles past this hospital, while her husband continued to drive their car, Melinda delivered her own baby girl, who you can see here in this picture in her lap. She gave birth on a desert highway to her daughter, Susanna. While Susanna, as you can tell from this picture, looks healthy and thriving today, when she was born she was not breathing. So Melinda, after she had the baby by herself, unassisted, without a physician-- because she couldn't get to a hospital that had obstetrical services in time--Melinda, after she had her baby, cleared the baby's breathing passage and started CPR. Fortunately, the baby started breathing and Melinda wrapped her newborn in a sweater and held her to her chest as her husband drove them all the way to Sierra Vista Hospital, where the ER staff cut the umbilical cord in the parking lot.

As a result of the medical liability crisis, Sierra Vista is now the only hospital in a county of 140,000 residents that actually delivers babies. All high-risk patients are sent to Tucson, an hour and a half away, in a neighboring county. I shudder to think what could have happened in Melinda's case. Thankfully, as I said, Susanna Sallard is a healthy young girl--no thanks to a medical liability system that almost left her as a casualty.

The skyrocketing liability insurance premiums have also affected emergency and trauma services for patients. This is where the severity of the crisis becomes even more apparent.

Let me tell you about Jim Lawson. This is a picture of Jim Lawson, Mary Rasar's father. Mary lost her father in 2002 when Nevada's only level I trauma center was forced to close because of skyrocketing medical liability costs. The majority leader, Dr. Frist, told us earlier that level I trauma centers are the ones that handle the most serious trauma cases. But Nevada's only level I trauma center was forced to close in 2002 because of skyrocketing medical liability costs.

Jim Lawson was injured in a car accident in Las Vegas, where he suffered multiple injuries and required immediate care. The State's only level I trauma center, the University of Nevada's medical center, where Mr.

Lawson should have been taken, was forced to shut its doors just days before this accident because rising liability costs had forced insurers to drop coverage on high-risk specialists, high-risk specialists like neurosurgeons, like emergency room physicians, and others who handle the most seriously injured patients.

Unfortunately, as I indicated at the outset, this story does not have a happy ending. Mr. Lawson was rushed to Desert Springs Hospital, where he died while awaiting air transport to the next nearest level I trauma center facility, more than an hour away, at Salt Lake City, UT. So this gentleman, who was in a car accident in Las Vegas, who could have been treated at the University of Nevada's medical center but for the fact it had to shut down because it lost its medical liability coverage, died because the only facility that could treat him was more than an hour away in Salt Lake City.

Let me tell you about Leanne and Tony Dyess. Leanne is a 48-year-old wife and mother of two from Mississippi. This is Leanne and her family. On July 5, 2002, Leanne's husband Tony was involved in a car accident in Gulf Port, MS, and suffered serious head injuries. After removing him from the car, paramedics rushed Tony to Garden Park Hospital in Gulfport, MS. But there were no neurosurgeons there available to treat Tony because rising medical liability costs forced doctors in that community to abandon their practice. Six critical hours passed before Tony could be airlifted to University Medical Center. As a result of the inability to locate a specialist to provide him immediate care, today Tony is permanently brain damaged, mentally incompetent, and unable to care for himself or his children.

In addition to this tragedy and the others I have mentioned, there are numerous other examples from my home State of Texas of tragedies, or near tragedies, or worse than injuries as a result of the inability to get medical care close by because of this crisis.

Another couple of stories: George Kuempe, who recently retired as a reporter for the Dallas Morning News not too long ago, fell from an oak tree and broke his back on a Sunday afternoon in the Austin area. He had to be flown to Scott & White Clinic in Temple, TX, because there were no neurosurgeons available in Austin, TX. There was a long delay in the amount of time necessary to treat his injuries in order to travel just 60 miles up the road. There were hours of delay. Dr. Path Crocker, chief of emergency medicine at Brackenridge Hospital in Austin, where he could have been and should have been treated had a neurosurgeon been available, said this is a warning flag to the citizens of Texas that a major problem is brewing.

In 2002, an elderly man was taken to an emergency hospital room in McAllen, TX, in south Texas in the Rio Grand Valley after falling and injuring his head. After 7 hours, the emergency room could still not locate a neurosurgeon to treat this elderly man's head injury, even though they searched in Corpus Christi, in San Antonio, and Austin. Unfortunately, this elderly man, with a head injury, died because he could not get timely medical treatment for that condition.

There are even more stories that illustrate the lengths to which patients must go just to receive desperately needed care.

Neurosurgeons in Houston, TX, are bombarded with trauma and emergency cases from around the State because doctors have dropped emergency services in efforts to lower their professional liability premiums just so they can earn a living.

You can see Houston, TX, located in the southeast part of our State where patients, let us say, down in the Rio Grand Valley--this shows Harlingen, a distance of 330 miles, which is close to McAllen where that elderly man had a head injury and where he would have to be airlifted to Houston to receive those treatments by a qualified neurosurgeon or other specialist. The time it takes to travel 330 miles from the Rio Grand Valley to Houston, the time it takes to travel from the Rio Grand Valley to San Antonio, or San Antonio to Houston, or El Paso to Houston, obviously, has medical consequences which means people who are injured and suffer more serious injuries and people whose lives could have been saved lose their lives because of this medical liability crisis with which our colleagues on the other side of the aisle simply refuse to deal.

Houston neurosurgeon Bruce Ehni described it like this. He said:

We are the recipient of much more serious and risky cases

that would have otherwise been cared for locally. Here at our

hospital in Houston we are receiving hemorrhages, traumas

and other dire emergencies from as far away as El Paso on

the opposite side of the State, and Brownsville, which is

down near Harlingen in the southern part of the State--

sometimes up to 600 miles or more away.

Some of the examples include a patient with head trauma and a blown pupil flown in from Harlingen to Houston, more than 300 miles away; an intracranial hemorrhage flown in from Laredo on the United States- Mexico border 300 miles away; and a brain tumor causing an abrupt paralysis flown in from San Antonio, 200 miles away.

Dr. Ehni continued:

All of these communities have neurosurgeons. The ``bad''

cases end up in Houston despite the presence of neurosurgeons

locally because everyone is trying to avoid being sued. It is

bad for patients and it is bad for us. We are being dumped on

endlessly.

For the rest of this body, and perhaps others listening, let me put all of this in perspective geographically. For a medical transfer from El Paso to Houston, it would be as if a patient was hurt in Washington, DC, and because he could not find a surgeon, he had to be flown farther than Chicago, IL, for surgery. For a transfer from Harlingen to Houston, it would be like forcing a patient to fly from Washington almost to Buffalo, NY. For a transfer from San Antonio to Houston, it is as if a patient were forced to fly from Washington to New York City.

Can anyone in this body state they would be content to have their family or loved one suffer those sorts of delays in treatment if they really needed a medical specialist and couldn't find one? Of course, they wouldn't accept that. Neither should the American people. But that is what they are being forced to do because of the inaction and obstruction of those on the other side of the aisle who will not allow us to have a true debate and an up-or-down vote on this reform to our broken medical liability system.

The chief obstacle to making our health care system the best in the world is our liability lottery. In the liability lottery, people aren't free to act because doctors simply can't meet the demand, and Americans end up paying more for health care and suffering medical complications because of it.

It is not all bad news, I must say. I am glad to say, in response to many of the concerns which I have raised that pertain to my State of Texas, the legislature and the people of my State have acted. Last September voters took to the ballot and passed Proposition 12, an amendment to the Texas Constitution providing caps on noneconomic damages and paving the way for the full implementation of important medical liability reform.

We already have, even though this passed just last September, some of the early signs of beneficial results. One medical liability insurance carrier has reduced their medical liability premiums by 12 percent, and another medical liability insurance company has canceled their planned 19-percent rate increase because of these reforms.

My home State of Texas recognizes the need for government to step in and help address this urgent problem. But more needs to be done, and there is still too little recourse for patients in States without reform.

Let me mention briefly some of those States. In Illinois, more than 15 percent of the neurosurgeons have left the State in the last 2 years. That is according to the American Association of Neurological Surgeons. There are currently no hospitals in the northwest suburbs of Chicago that have 24/7 neurosurgery coverage. Most patients in need of care are transferred either to Rockford, which is 60 miles away, or to the University of Illinois in Chicago, 45 miles away--not quite the distances we talked about in my State but still nevertheless consequential distances in terms of the delay in treatment of serious cases.

In the State of Massachusetts, the home State of Senator Kennedy and Senator Kerry, a third of the State's hospital beds have closed in the past

decade, and 32 percent of physicians say they plan to leave the State if the practice environment fails to improve. In the 1990s in Massachusetts the number of practicing obstetrician/gynecologists declined by more than 20 percent. In New York, record numbers of people seeking emergency care are overwhelming emergency departments across the State in areas including Long Island, Syracuse, Rochester, and Buffalo. Many doctors and higher risk specialties are eliminating services, retiring early, or contemplating leaving. The exodus of 4,000 doctors in New York alone from 2000 to 2002 has been attributed to a litigious atmosphere in that State.

In North Carolina, in 2002 alone, medical liability rates increased by 50 percent and high-risk specialists are facing increases between 50 percent and 100 percent. Physicians are simply going out of business, leaving a State, or substantially increasing prices as they pass along costs, as they can, to their patients. But the problem is especially acute for obstetricians, neurosurgeons, and emergency physicians.

Finally, the last State I will mention is the State of Washington. Since 1998, Washington State has seen a 31-percent increase in its physicians moving out of the State, and between 1996 and 2001 the number of retirements increased 50 percent with the average age of those retirees dropping from age 63 to age 58.

We know this liability reform can have a beneficial impact on reducing costs and improving access because some States have done it for a while. My State has done it since September and has not yet seen the full benefit although we have seen some very hopeful early signs. California has adopted something called MICRA, which has been the medical liability tort reform package. With MICRA, California has achieved a more stable marketplace and lower premium increases over the years than have other States without the kind of medical liability reform we are advocating today. According to the data, California medical liability premiums grew 167 percent over the past 25 years compared to 505 percent for States without medical liability reform.

I have taken more time than perhaps I should, but I thought it was important to go over in detail what the problem is, what we think the solution may be, at least in part, and demonstrate for our colleagues on the other side of the aisle, if they would allow an up-or-down vote on this legislation, we could see some very real, substantial benefits, not just to physicians.

I like physicians. I respect physicians. But this is not something we ought to do to help members of the medical profession. The reason we ought to do it is to help patients. Like it or not, all of us will be patients at some future point in our lives. The best way we can ensure the good quality health care is available for us and our loved ones, should we need it in the future, is to pass this meaningful reform.

I ask our colleagues to seriously reconsider and not to obstruct this important reform. We know it can help. If they have other ideas they think will add to the substantial beneficial effect of this legislation, let them come to the floor and talk about it. We will be willing to talk to them and engage them on it. If a consensus develops that an even better package can be produced as a result of the kind of debate and negotiations and compromise that characterize this body and which this body is so good at when it works properly, I say, bring it on.

I yield the floor and suggest the absence of a quorum.

Mr. President, I will take a few moments to comment on a bill that deserves to be debated on this floor and brought to this floor because, as the distinguished Senator from New Hampshire said, the patients--not the doctors and not the system; all of them are disadvantaged--but it is the patients who suffer.

When people hear of patients, they say: That is somebody in a hospital somewhere who is suffering. No, it is you and your children, and everybody who is listening to me. Who knows? You could be driving home today from work, and you might have an accident and have to go to the emergency room or the trauma room. Or after you pick up your kids from school--or maybe they are taking the bus home from school today-- if they are struck by a car, or fall down and break a bone, they have to go to the emergency room. Or if you are one of the millions of women who anticipate the joy of having a baby in the near future, it is you who will suffer as you look for an obstetrician, as you look for an obstetrician who will be with you during that prenatal period or over the whole 9-month period.

All of this comes down to a fundamental issue. Our medical litigation system is broken. It is failing. It is failing the American people. It is failing our communities. It is failing our hospitals. It is failing our doctors. It is failing our families. And, most importantly, it is failing our patients.

The medical litigation system should be strong. Its purpose is to promote the common good, first and foremost; and, second, to improve health care for all Americans through the fair and efficient resolution of meritorious medical negligence claims. Indeed, those two purposes-- to promote the common good and to improve health care through the fair and efficient resolution of meritorious medical negligence claims--are noble goals.

But instead of achieving these noble goals, our litigation system is out of control and patients are being hurt. Due to this broken system of medical justice, medical liability premiums today are unnecessarily skyrocketing. You will hear the words ``skyrocketing'' and ``runaway'' because that is what is happening. The ultimate victims are the patients--the potential patients, the future patients--and that means all of us, our families and future generations.

The ultimate victims are patients who see their access to care--to that obstetrician, to that emergency room, to that trauma center-- threatened and, in some cases, totally disappearing. The American Medical Association now lists 19 States where access to care is threatened. The situation is a crisis that is getting worse day by day by day. That is why as majority leader, in terms of scheduling in the Senate, we are going to keep bringing this issue back because the crisis is getting worse. If we are not successful, we will come back again and again.

While the crisis does affect all people who will need or who need appropriate access to care, it affects those who are seeking help from specialists in particular. When we say ``high-risk specialist physicians,'' they are the ones who are responding to a trauma accident or the neurosurgeon who has to be highly trained to respond to a brain injury, a contusion, a head injury. When we say ``high-risk medical specialist,'' we mean the cardiac surgeon, a high-risk specialty physician who is called in if trauma comes into an emergency room.

These patients who seek the high-risk medical specialist indeed are among the most sick and the ones who most desperately need urgent attention. But our litigation system is increasingly forcing these medical specialists, such as neurosurgeons and obstetricians, to drop their services altogether and not do those higher risk responses; to limit those services maybe to certain hours to not provide those services; not to offer those services in the emergency setting but do them in a much more controlled environment.

It is even causing these high-risk medical specialists to pick up their practices and move from one State,

say, from cities such as Philadelphia, where premiums are skyrocketing, to a city in California that has done a much better job and that is not in crisis because they have legislated appropriately in terms of addressing what was 20 years ago a crisis in California in medical liability. It causes these neurosurgeons and obstetricians--the two areas we are addressing in part with the legislation we are doing our best to bring to the floor over the next 24 hours--to retire from the practice of medicine altogether. They are saying: It is too much, $400,000 as a neurosurgeon in some cities, just for liability premiums. I can't afford that. I am going to leave the whole practice of neurosurgery. It does not make sense for me anymore.

That is the reality today. It is a reality that is getting worse. And when we say it is a crisis, it is a crisis getting worse. And that demands a response by this body. As the services these specialists provide become harder and harder to find, who is hurt? Everybody, yes, but the sickest and, indeed, the most vulnerable are the ones hurt the worst; again, demonstrating the perverse and unintended consequences of a failing medical litigation system. That is why this week we are bringing to the floor this medical liability reform. It is for the patients.

The Pregnancy and Trauma Care Access Protection Act focuses liability reform on two areas: Emergency and trauma care, and obstetrical services, where the services are provided right before, during, and after the delivery of babies. It is these two critical areas that are literally under siege today because they rely on medical specialists who are suffering the most from this lawsuit abuse.

Of course, the true victims are those who need to go to the emergency room, as the distinguished Senator from New Hampshire said. It is not the physicians themselves. It is the people who have to go to the emergency rooms and wait longer for a specialist to be called in because they are not in the hospital, or there is nobody in the region. It is the expectant mother who is having difficulty even finding an obstetrician. And it is the stories that are increasingly occurring of once you get an obstetrician, right after you become pregnant, that obstetrician leaves and moves and another obstetrician comes in, and maybe that obstetrician stays a few months and then another obstetrician. So we have a huge medical problem. It is our responsibility to respond.

Before coming to the Senate, I spent 20 years both training and practicing as a thoracic surgeon, a chest surgeon, which is heart, lungs, trachea--really everything between the diaphragm and the neck. That is what I did. As a member of the thoracic surgical team at Vanderbilt University Medical Center, we handled all of the trauma to the chest, the lungs, the heart. That is what I did every day.

At that level I trauma center, which covered throughout the middle section of Tennessee, if somebody came in with a knife wound to the chest, they would call Dr. Frist, and I would go down and repair the knife wound to the chest or to the heart, as a medical specialist. Based on that experience, I can tell you that emergency care and trauma care is an absolutely necessary and critical component of our overall health care system.

Each year, there are 110 million visits to the emergency room, and 90 percent of these visits require urgent attention, emergency attention within 2 hours. These are emergencies. As I implied earlier, no one can predict when you are going to need that care. Driving home today, will you be in an accident, or will your child fall down and break a bone climbing a tree this afternoon? That is emergency care that you want a response to immediately.

The Alliance of Specialty Medicine has documented the important details of this critical care. Approximately 28 million Americans visit the emergency room each year due to an accident. Ninety-nine percent will recover after receiving care; in many cases, lifesaving care. Over 3.5 million emergency room visits are related to bone fractures or to broken bones. Of these, 888,000 require hospitalization, and delays in treatment can result in loss of the use of that limb, amputation of that limb, or indeed permanent disability. Over 1.5 million people suffer traumatic head injury with damage to the brain itself.

Neurosurgeons, a focus in the legislation we are debating, perform over 36,000 emergency brain operations on head-injured patients each year. They place little intracranial monitoring devices to control brain swelling in another 8,000 patients each year. Trauma frequently inflicts damage to the spinal cord which runs through the body. Indeed, over 70,000 Americans are hospitalized because of spinal injuries each year. Another 26,000 are hospitalized with acute or emergency or sudden neck injuries.

And, as we all know, nerve tissue heels in a very slow, different way. You cut off blood supply to the spinal cord or to the brain and there is not an immediate response. That tissue pretty much dies forever; very slow recovery. Thus that time of response becomes critical. Delay in treating any sort of injuries to the spinal cord can cause paresthesia or tingling, paralysis, can cause permanent disability, and, of course, can cause death.

My own specialty was the chest and was cardiothoracic, cardiovascular, the heart itself. When you look at emergencies coming in because of heart attack or cardiovascular disease or stroke, the blood vessel is huge. Sixty-five million Americans have some form of heart and blood vessel, or cardiovascular disease, which could lead to a heart attack or stroke; and each year over 1 million Americans suffer a myocardial infarction, or a heart attack. You want to take them to the emergency room because today, as cardiac surgeons, cardiologists, heart specialists--and it is very different today than 30 or 40 years ago--there are medicines you can give and procedures you can do that can open up the blood supply when you have a heart attack and get blood to the heart before the millions of cells die. Every moment counts. It is important to get that blood supply opened by heart specialists.

Unfortunately, our broken litigation system is stretching those moments--if those specialists are not available to respond--into hours. It is stretching them longer and longer, and that causes death of that heart muscle.

Of course, patients and most people listening today expect, if they have an emergency and are going to be rushed to the emergency room, that there will be people to treat them, including heart specialists who can rush down and open the blood vessels; or if they have a brain injury or a concussion or a contusion to the head, they expect there will be somebody there to respond appropriately.

However, that assumption is getting to be less and less true, due in large part to our broken medical malpractice litigation system. Because of runaway medical malpractice costs, many medical specialists have been forced to stop treating patients in the emergency room--the neurosurgeons; the orthopedics, or bone surgeons; the heart and lung surgeons; the obstetricians; the cardiologists; and the list goes on in terms of specialists we have to respond in the emergency room. They are simply saying: I will practice my specialty, but I am not going to do it in the emergency setting. I will not sign up for what we call ``on- call'' for the emergency room or for the trauma team because if I do, my own insurance premiums will skyrocket, or I cannot get the insurance at all. So fewer and fewer specialists are volunteering for this ``on- call'' in emergency rooms.

Because of the high-risk operations they are called upon to perform in these emergency situations, neurosurgeons, the specialty of the brain and spine, have been particularly hit hard by the litigation process. According to the American Association of Neurological Surgeons and the Congress of Neurological Surgeons, between the years 2000 and 2004, that 4-year period, the national average, of medical liability premiums for neurosurgeons increased 100 percent. It literally practically doubled, from $45,915 up to $91,848.

As I mentioned a few minutes ago, in some States, neurosurgeons are now paying insurance premiums of almost $400,000 per year. That is not the cost of doing the medicine or delivering the care or of the practice or being in the operating room or paying the nurses to help you or the cost of the equipment or the cost of the drugs or the cost of your training; that is just a tax of $400,000 placed on top of all those expenses that the physicians pay to have

the opportunity to treat you if you come into the emergency room. It doesn't make sense.

It is a crisis. It is getting worse. It should be no surprise that this medical malpractice liability crisis is having a negative effect on the way these much needed specialists practice medicine. In fact, a recent survey--a fascinating survey--showed that 70 percent of neurosurgeons responding said they have had to make at least one of five practice changes. So if 100 responded, 70 said they have had to do one of these following things to narrow down or change their practice in response to the medical malpractice crisis: referred complex cases, closed their practice, moved to a different state, stopped providing patient care or retired.

Runaway lawsuits are forcing neurosurgeons and other specialists to limit emergency services. Again, it is not the doctor who is being hurt, it is the patients who are being hurt, and it is future patients, and that means potentially everybody listening to me now.

Many patients are rushed to these trauma centers. When I was on call at Vanderbilt Trauma Center as a thoracic surgeon, we had somebody actually in the hospital, or very close to the hospital, practically all the time. For heart disease, heart attacks, you need somebody there almost all the time. Why is that? Because you have a golden hour, especially for spinal disease and heart disease. Every second that goes by that you have the blood supply cut off, especially when you can open that blood supply up, the patient is being hurt.

Unfortunately, patients are having to endure longer and longer waits as these precious lifesaving minutes tick by. If you have a broken bone, a gunshot wound, frequently you might be diverted from one facility to another because of the lack of availability of a specialist or the resources in one of the hospitals. Then you have this frantic search of finding a needed specialist for that broken bone, or that gunshot wound to the heart, or that stab wound.

According to a recent study--because people say that could not be what is happening today, but it is what is happening--76 percent of emergency departments recently have diverted patients to another facility because of a lack of specialty physician coverage. Of these, over 33 percent diverted patients 6 or more times a month, and an additional 28 percent have diverted patients to other facilities 3 to 5 times a month. Over a quarter of hospitals report that the reason they have lost specialty coverage is because of medical liability concerns. These concerns simply discourage specialists from offering their services or volunteering their services for this on-call emergency coverage.

The medical litigation crisis is affecting health care, patient care, all across the country. The consequences are obvious--the consequences of death. Here is an example. According to the Palm Beach Post, a Florida woman, Mildred McRoy, suffered a hemorrhagic stroke in February. That is where you actually bleed into the brain itself, and because the skull is a fixed cavity, when you bleed into the brain, it swells and it requires an emergency response. She was rushed to JFK Medical Center in Atlantis for treatment, but JFK stopped providing around-the-clock neurosurgical coverage in July because of the medical liability crisis. In fact, there wasn't a single neurosurgeon on call in all of Palm Beach County when this occurred. Again, that shows how pervasive the impact is if you don't have specialists signing up because of high medical liability premiums. Ms. McRoy was then transported 40 miles away to North Broward Medical Center. More than 8 hours later she was operated on by a neurosurgeon but died after being in a coma for several days.

That is the story. That is why we must act. We know there is a problem, a crisis, and we know the crisis is getting worse. We know it is going to take action on this floor to reverse it. Florida is one of the 19 States the AMA considers in crisis.

In a few cases, trauma centers and emergency rooms have been actually forced to shut down--as we saw on the chart that was behind me a while ago, which the Senator from New Hampshire had shown--because either the emergency department physicians or the on-call specialists could not obtain medical liability insurance at any price whatsoever. The most infamous example occurred in the summer of 2002 when Las Vegas lost its only level I trauma center. When I use that term, level I, that is the highest level. They can take anything that comes. Level I is the most sophisticated, most prepared, most responsive level of trauma center that we have. Las Vegas lost their level I trauma center which, by the way, was one of the 10 most busiest in the country for several days, forcing residents from that major city of Las Vegas to travel over 100 miles to seek urgent care.

For me as a physician who has gone through 4 years of medical school and 8 years of medical training, what is sad and tragic is we are not getting rid of a few bad doctors. Right now we have highly qualified, highly committed physicians, women and men, who have chosen to dedicate their lives to helping their fellow man--really mankind, humanity broadly--through neurosurgery or obstetrics or heart surgery, and we are literally forcing them to leave the field they cherish, that they spent years working to become so they can help other people. These are people who are devoting their professional lives to healing others, and we are saying because of this medical litigation system, which is out of control: You are no longer going to be able to do that.

They do not want to drop these specialized services. They do not want to make themselves unavailable for emergency care. Indeed, that is why they got into the business. Tragically, and all too often, the medical litigation system, with these skyrocketing, out-of-control costs simply leaves them no choice. In the end, our health care system suffers, but it is the patients who really suffer.

The story is the same for obstetricians. Right now we know women are having a harder time finding an obstetrician. As I said earlier, one might have two or three obstetricians over one pregnancy period today because obstetricians are having to move. A few weeks ago, we brought the Healthy Mothers and Healthy Babies Access to Care Act to the floor of the Senate. That bill specifically addressed the medical liability challenges we have focusing on OB/GYNs and women and the babies they serve. We did that because all across the country, indeed in my home State of Tennessee, the current medical litigation system is forcing many OB/GYNs to simply stop delivering babies.

Floor discussions at that time several weeks ago demonstrated the crisis. It showed the extent of the crisis. There is no reason at this juncture to restate all of the arguments, but the doctor drain has gotten so bad that it is clear that women are having a harder time finding doctors to give them prenatal care and to deliver their babies.

What happened several weeks ago? Unfortunately, opponents to this needed medical liability reform filibustered the mere consideration of the bill on the floor of the Senate. We simply cannot allow people to keep their heads in the sand any longer. The crisis is real. It is time for us to act.

The crisis is getting worse every day. As a physician and as a policymaker, as someone who has had the opportunity, a real blessing, to take care of patients in the setting of trauma, the emergency room, and responding to their needs, I am simply not, as majority leader, going to sit back and allow this crisis to continue to explode.

The legislation itself we are considering, the Pregnancy and Trauma Care Access Protection Act, addresses these two areas--delivering babies and responding to emergency care. Why? Because these areas have been hit the hardest. It is common sense in medical litigation reform that will protect our patients, our families from medical negligence with fair compensation. If somebody has been negligently injured, they deserve just and fair compensation. If there are bad doctors, they need to be punished accordingly.

The problem is the overall system is broken. The overall system has these frivolous lawsuits with these runaway costs. The legislation is based on sound models that have worked in States, that have a demonstrated track record, such as California. It is supported by numerous medical specialty societies and speciality groups. The American

College of Obstetricians and Gynecologists, the American Association of Neurological Surgeons, the American Academy of Orthopedic Surgeons all support this legislation and, of course, the list goes on.

I hope opponents of reform do not make excuses. They seem to put the blame of the crisis everywhere except where it belongs--our medical litigation system. It is time to face that simple fact that we need to reform our medical litigation system. It is in desperate need of reform. It is hurting all patients. It is hurting our vulnerable patients the most.

In addition, I should add that all of this has a huge, unnecessary cost in the practice of defensive medicine, the reaction of our medical system to frivolous lawsuits. These are your health care dollars that are being wasted. These are your health care dollars that are taken from you and not being channeled back into better health care for you.

Congress should act now. I am very hopeful we will be allowed to act now by putting patients first rather than the special interests who have been so vocal in obstructing this bill.

For the sake of all Americans who will be forced to go to the emergency room this year and for the sake of all expectant mothers, I ask my colleagues to allow this debate to move forward tomorrow by voting to proceed to this critical medical litigation reform bill.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent to speak as in morning business for up to 5 minutes.

Mr. President, I see my colleague from Tennessee in the Chamber. I know shortly he will be addressing the issue under consideration, that of medical liability. In seeing him, I did want to, for a couple of minutes, talk about a very important event that will occur later this evening.

The State of Tennessee, which both he and I represent, is once again at the height of March Madness. Congratulations to the University of Tennessee Lady Vols, who will play for their seventh NCAA title tonight against a familiar foe, the University of Connecticut Huskies.

Coach Pat Summitt has maintained a championship basketball program at the University of Tennessee for three decades. This upcoming matchup, to be played in a few hours, will be the Tennessee native's 102nd NCAA tournament game. Coach Pat Summitt has led the team to an overall record of 851 wins and 166 losses in 30 seasons.

Under the watchful eye of the winningest coach in women's basketball history, the Lady Vols have advanced to the NCAA Sweet 16 and the Elite Eight in 19 of the last 23 years. Tennessee is making its third straight Final Four appearance, setting a new NCAA record with 15 such appearances. The win over Stanford in the 2004 Midwest Regional final gave the Lady Vols their 14th 30-win season in Coach Pat Summitt's 30- year career at Tennessee.

This is an especially big game for the Lady Vols seniors. During their 4-year stint at Tennessee, they have yet to clinch a national championship. They did garner a No. 1 seed for a nation leading 16th time in 2004.

It is the seniors' outstanding play that has blazed the trail to the 2004 NCAA championship game. Senior Tasha Butts scored the winning basket at the buzzer in both games of the Midwest regional. Senior LaToya Davis scored with 1.6 seconds left in Sunday night's Final 4 matchup to keep Tennessee's national championship hopes alive.

Butts, Davis, and fellow senior Ashley Robinson accounted for one- third of the team's total production in the 2004 NCAA Tournament. They have attributed 47 percent of Tennessee's points, 77 percent of its assists, and 39 percent of its three-pointers. Together these exceptional student athletes have produced 30 points, 21 rebounds, 10 assists, 4 steals, and 3 blocked shots per game.

Tennessee, although a perennial powerhouse, has not won a national title since 1998. Under the tutelage of a basketball living legend, combined with the heart of the Lady Vols' seniors, Tennessee hopes to bring the glory of women's basketball back to Rocky Top.

I wish both teams good luck tonight, and I hope to join the Tennessee Lady Vols at a White House victory celebration later this year. Go Vols.

I yield the floor.

Mr. President, I rise in strong support of S. 2207, the Pregnancy and Trauma Care Protection Act of 2004. I strongly encourage my colleagues to vote for this very important legislation.

This is the third time in the 108th Congress that I have come to the floor to argue for medical liability reform. It should not be this difficult to pass a piece of legislation that will improve access of all Americans to timely and efficient medical care, reduce the cost of hospitalization insurance and health insurance, and do something about the enormous cost of defensive medicine being practiced today by physicians throughout the country, which is contributing also to the high cost of health insurance premiums.

I start off today by telling a story of the Schweiterman family in Ohio's rural west-central Mercer County. Doctors Jim and Tom Schweiterman are brothers who, along with their father, who is retired, have delivered about 5,700 babies over the years. The family has a 113- year history of bringing babies into the world. Their great-grandfather started the current medical practice in 1896. They have never been sued for a delivery.

Yet this family is giving up delivering babies because of escalating malpractice insurance costs. Their insurance rates rose from $32,000 6 years ago to this year's quote of $78,000. Dr. Jim Schweiterman stated he would continue to deliver babies if he could just break even, but unfortunately, because of insurance costs, he cannot. Their last delivery will take place this September.

This is happening all over the United States. This legislation is a must. It is important because the effects of medical liability crises can be felt most acutely by obstetricians/gynecologists and emergency room physicians.

Data from the American Medical Association indicates that 19 States currently face a medical liability ``crisis'' and 25 States show ``problem signs.'' That is 44 States out of our 50. The doctors in these 44 States will either leave the practice of medicine entirely or move their practice to a neighboring State with better malpractice insurance rates. This phenomenon cries for national legislation.

One category of patients impacted greatly by this crisis and who we are trying to help with this legislation is women of childbearing age. One out of every 11 obstetricians nationwide has stopped delivering babies and, instead, scaled back their practices to gynecology only. In addition, one in six has begun to refuse high-risk cases. Most alarming is recent data showing that for a third year in a row, the number of obstetrics/gynecology residency training slots filled by U.S. medical students declined by 65.1 percent--the lowest level ever. People are not going into residencies in OB/GYN and in ER.

How does this affect a woman's access to care? As premiums increase, a woman's access to general care, including regular screenings for reproductive cancers, high blood pressure, cholesterol, diabetes, and other serious health risks, will decrease.

With fewer health care providers offering full services, the workload has increased significantly for those who still do. Wait time increases, putting women at risk.

Women receive less prenatal care in our current environment. Improved access to prenatal care has resulted in low infant mortality rates, an advance now threatened as OB/GYNs drop obstetrics. As you may have read, for the first time since 1958, the U.S. infant mortality rate is up. According to the preliminary data released this month by the statisticians for the CDC, the Nation's infant mortality rate in 2002 was 7 per 1,000 births. That is up from 6.8 in 2001, and some experts are attributing that to poor access to quality prenatal care.

Another group of physicians that has been significantly affected by the medical liability crisis, and that we are trying to help out with this legislation, is emergency room physicians. When patients rush to the ER, they assume the hospital will be open and doctors will be there to treat them. However, to secure affordable medical liability insurance, or to minimize their risks of lawsuits, many physicians, including neurosurgeons, orthopedic surgeons, cardiothoracic surgeons, obstetricians, and cardiologists, are no longer able to serve on-call to hospital emergency departments. In extreme cases--for example, Nevada, Florida, and Pennsylvania--emergency departments and trauma centers have been forced to shut down completely because the physicians have been unable to secure medical liability insurance at any price. It is not available.

In fact, in the past 10 years, hundreds of emergency departments have closed in the United States in such States including Arizona, Florida, Maryland, Mississippi, Nevada, Ohio, Pennsylvania, Texas, and West Virginia. Over the same period, the number of visits in the Nation's emergency departments climbed over 20 percent. While more Americans are seeking emergency medical care, emergency departments continue to lose staff and resources and are almost at the breaking point.

In addition, three in four of emergency departments diverted ambulances in the last 12 months. I will repeat that. Three of four emergency departments diverted ambulances in the last 12 months in part because no specialists were available.

Of these, one-third diverted patients six or more times a month, and an additional 28 percent diverted patients three to five times a month.

This is devastating, especially in light of the volume of patients treated by emergency room physicians. Each year there are 110 million visits to emergency rooms in the United States. Over 3.5 million ER visits are related to bone fractures. Of these, some 885,000 people have such severe fractures which can cut off or reduce blood flow to a limb or lead to shock. Patients cannot afford delays in treatment which can lead to death, amputation of a limb, loss of use of a limb, or permanent disability.

Each year, over 1 million Americans suffer a heart attack. Approximately 20 percent of heart attack victims will die. Cardiologists and cardiovascular surgeons can perform lifesaving treatments and, in some cases, can even reverse heart damage if the patients are treated promptly. Stroke patients treated within 90 minutes of the onset of their symptoms show the most improvements.

We need this legislation to keep these ERs open and fully staffed and to make sure there are no delays in treatment that can result in death or permanent injury.

How does this affect a person's access to care in the emergency room or the trauma care center? Today, in many hospitals, there is no neurosurgeon available to treat patients with major head trauma or no orthopedic surgeon to care for patients with open fractures.

According to a recent study, over 70 percent of the Nation's hospitals, again, were forced to divert patients in the past month. That is a startling statistic. According to a recent study, over 70 percent of this Nation's hospitals were forced to divert patients in this past month, in part because of lack of specialists on call.

Neurosurgeon Thomas Hawk of Columbus stopped providing trauma and emergency care in an effort to reduce his liability premiums. He also writes to me:

I see lots of patients each week from West Virginia who

cannot find neurosurgical care and are coming all the way to

Columbus, OH, to get care.

This is another problem, the transferring of patients. Because of the growing scarcity of oncall specialists, patients now wait longer for care in emergency departments. As I mentioned, many are being transferred to other facilities. This can be deadly for elderly patients experiencing heart attacks or strokes which require immediate medical attention.

In fact, the emergency physicians at Akron's two level I trauma centers--Akron is fortunate; they have two

trauma centers, Akron General Medical and Akron City Hospital--often treat patients from other areas of the State, including Youngstown and Cleveland. Youngstown is, I think, an hour away, and Cleveland is 45 minutes away. I do not see how my colleagues can claim we are not in the middle of a crisis.

When I have given speeches in the past, I have given testimonials from dozens upon dozens of physicians in Ohio who have been affected by this crisis. Every week I see many of them. But this time instead I would like to talk about some other States to show that this crisis does not just affect my home State of Ohio or States such as Nevada or Pennsylvania, but it is widespread throughout the country and should cause many of my colleagues from other States to support this legislation or explain why they cannot.

In Illinois, according to the American College of Emergency Physicians, fewer inpatient beds and staffing shortages are contributing to severe overcrowding and ambulance diversion. A 2003 report from the Metropolitan Chicago Health Care Council indicated the city's hospitals are unprepared to meet the future health care needs of their patients. According to the American Association of Neurological Surgeons, more than 15 percent of Illinois neurosurgeons have left the State in the past 2 years.

In addition, since January of 2003, 59 doctors have left the St. Clair-Madison County area. Just since October 2003, as premium renewals are considered at the end of the year, over 10 physicians have left, including 3 orthopedic surgeons.

Also in Illinois, according to a November 2002 survey, 63.5 percent of responding Illinois OB/GYNs have been forced to make changes in their practice, such as quitting obstetrics, retiring, relocating, decreasing gynecologic procedures, and no longer performing major surgery. Almost 50 Illinois OBs stopped practicing obstetrics recently, forcing 7,776 pregnant Illinois women to find new OB/GYNs to provide obstetrics care.

I don't know how we can take this situation. I have six grandchildren, and I cannot think of a worst situation than if one of them had a problem pregnancy and were told by their OB/GYN: I am sorry, I can't handle it because if I do, my insurance premiums are going to skyrocket. And yet in Illinois, 50 stopped practicing.

An orthopedic surgeon in Oakbrook Terrace, IL, told the story of a 5- year-old child who was struck by a car and sustained a fracture of the femur and small skull fracture with minimal underlying brain contusion. He stated:

Such injuries would typically be treated by . . . an

orthopaedic surgeon and then a neurosurgeon. . . . In this

case, the neurosurgeon on call would not see any patient

under 18. A pediatric orthopaedic surgeon was in attendance .

. . but without a neurosurgeon . . . a transfer to Loyola had

to be arranged. At Loyola, no pediatric orthopaedic surgeon

was available, so the adult orthopaedic trauma surgeon had

the child's leg placed in traction, inserting a pin just

above the knee in order to hang the weights which pulled on

the leg. The plan was to keep the child in traction for a few

weeks, and then place the child in a cast. The family, after

2 days at Loyola, desired transfer of care back to their home

town. The liability crisis has created a situation where this

patient had to endure two useless ambulance rides with a

broken femur, several extra days of hospitalization, and

insertion and removal of a traction pin. This waste of

resources and interference with medical care is repeated

endlessly across the nation.

In New Jersey, according to the State Hospital Association, hospital liability premiums jumped 50 percent on average in 2003, and the average annual hospital premium increased to $1.4 million.

In addition, a survey of more than 1,000 obstetricians found 23 percent had left their practices last year because they could not afford liability coverage, and only one pediatric surgeon is left in each of Ocean and Monmouth Counties, according to the State medical society. Some hospitals do not even have obstetricians on call.

Also in New Jersey, in January of 2002, there were 85 practicing neurosurgeons in the State. A little more than a year later, an estimated 20 have been forced to stop practicing. Warren County residents, including its 200-bed hospital, saw its only two neurosurgeons leave in September 2002. The closest neurosurgery center is now more than 1 hour away from these residents.

In North Carolina, the average size of liability claims increased by approximately 80 percent over 10 years. Some physicians are going out of business, leaving the State or substantially increasing prices as they pass on costs to their patients. The Senator from North Carolina, who was a Presidential candidate, should be very familiar with those statistics. The problem is especially acute for obstetricians, neurosurgeons, and emergency physicians.

In fact, in nine counties in the rural southern region, there has been a 3-percent decrease in specialty physicians, despite a nearly 8- percent increase in population between 1999 and 2002. At the same time, specialty physicians in all rural counties have increased only 1 percent, while the general population in those counties grew by 7 percent.

Neurosurgeons have been particularly affected by the medical liability crisis and many are stopping or limiting their trauma and emergency care in an effort to obtain affordable liability insurance. As a result, many hospitals, including Moore Regional Hospital in Pinehurst, NC, no longer have 24-hour neurosurgery coverage. Patients who suffer injuries during the wrong time are transferred to Chapel Hill sometimes after waiting for hours.

What about Florida? In Florida, liability premiums increased 75 percent in 2002. The average premium per physician was 55 percent higher than the national average. Emergency departments across the State are transferring patients to other hospitals because of shortages of cardiologists.

Between 1998 and 2002, 30 professional liability insurers left Florida. That is, the insurance companies have just left Florida because of the multiplicity of medical lawsuits that have been filed. Thirty-four percent of Florida physicians have stopped or reduced their emergency care coverage.

At Orlando Regional Medical Center, where Disney World is located, is one of only six level I trauma centers in the State. Think about this. This is the State of Florida, one of the fastest growing States in the United States. They have six level I trauma centers in the State. For those people who travel to Florida, I am sure that one of these days they are going to start taking that into consideration about going to the State of Florida because of the fact they do not have the trauma centers they need to take care of the people who come down from all over the country.

All of the neurosurgeons on staff at the Orlando Regional Medical Center, which is one of the six level I, have what they call ``gone bare'' and no longer have any professional liability insurance. So what has the hospital done to take care of the situation? Listen to this. The hospital has resorted to paying the doctors $4,000 per day to cover the call schedule and enable them to keep their door open to traumas.

In addition, Orlando Regional Sand Lake Hospital has had to eliminate both of its on-call orthopedics and urology coverage in its emergency department due to a lack of physician availability.

The stories from Florida are particularly egregious, so much so that I cannot understand how my colleagues from that State are not supportive of this legislation. I cannot figure it out. With what is going on in Florida, I cannot understand why the two Senators from that State cannot be supportive of this legislation.

Dr. Richard Foltz from Fort Lauderdale, FL, writes:

There are no neurosurgeons in Palm Beach to do brain

surgeries or take ER call. They try to transfer patients

across county lines all the time. I have no insurance and

have gone bare. My last premium notice was over $400,000 a

year.

According to neurosurgeon Troy Tippett, there are no longer any neurosurgeons in the Pensacola, FL, area who treat pediatric patients who are often considered high risk in liability terms. Children suffering from head and spinal injuries are airlifted more than 200 miles away. Think about that, airlifted 200 miles away to get treatment they ought to be able to get in their own community.

A Winter Park OB/GYN dropped his obstetric practice after his premiums rose from $48,000 to $100,000. At that rate, he would have to work 6 months

of the year just to pay his liability premiums. Instead he, along with four other obstetricians, gave up obstetrics altogether.

I could go on and on with one story after another about the fact we are losing surgeons and we are losing obstetricians all over this country. We are just talking about two of the specialties right now. We are concentrating on these two right now because we know they are the most in need and the shortage is most acute.

The legislation we are debating today gets us on our way to turning these statistics around. It provides a commonsense approach to our litigation problems that will keep consumers from bearing the costs of costly and unnecessary litigation while making sure those with legitimate grievances have recourse through the courts.

I would like to point out the argument that the insurance industry is ripping off doctors--and we hear that all the time on this floor--and raising rates to make up for investment losses is preposterous. I would again invite those Members who believe this to read the article I submitted for the Record during our last debate in February entitled ``Did Investments Affect Medical Malpractice Premiums,'' where it is concluded that asset allocation and investments returns have had little, if any, correlation to the development of the current malpractice problem.

I am not going to bore my colleagues today with statistic after statistic about what has happened to medical malpractice insurance companies in this country, but most of them are out of business. Most of them are limiting what they make available to doctors based on the type of medicine the doctor practices.

I would also like to point out testimony given to the Ohio Medical Malpractice Commission by a man by the name of James Hurley of the American Academy of Actuaries. In his testimony, Mr. Hurley tried to debunk a few misconceptions about the insurance industry and medical malpractice, one of which is the idea that insurers are increasing rates because of investment losses, particularly their losses in the stock market.

In response to this, Mr. Hurley states unequivocally, that in establishing rates insurers do not recoup investment losses.

I ask unanimous consent that a letter of March 26, 2004, from James Hurley be printed in the Record.

Throughout my career in public service, health care has been one of my top legislative priorities and certainly was a high priority while I was Governor of the State of Ohio and mayor of the city of Cleveland. All of us want access to quality, affordable health care. When the quality is not there, when people die or are truly sick due to negligence or other medical error, they should be compensated.

When healthy plaintiffs file meaningless lawsuits to coerce settlements or to shake the money tree to get as much as they can get, there is 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 repeat that again. For the system to work, we must strike a delicate balance between the rights of the 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, as I mentioned. In 1996, I essentially had to pull teeth in the Ohio legislature to pass my tort reform bill which would have placed caps on noneconomic and punitive damages, established proportional liability, and created a rebuttable presumption that a hospital was not negligent regarding negligent credentialing, among other provisions.

I signed the bill into law in October of 1996. Three years later, the Ohio Supreme Court ruled it unconstitutional. Had that law withstood the supreme court scrutiny--and I think today it would because we have a different supreme court--Ohioans would not be facing the medical access problems they are facing today--doctors leaving their practice, patients unable to receive the care they need, and cost of health insurance going through the roof.

Next to the economy and jobs, the most important issue facing America today is health care. In fact, it is a part of the reason why our economy is in trouble. We have too many uninsured, and those who have insurance face soaring premiums every year, making it less likely they can continue to pay for them.

In addition, employers face spiraling costs and in some cases do not even provide insurance, and those that do have been forced to increase their premiums and pass on the added costs to their employees, whose family budgets are often already stretched razor thin.

In other words, I see people in business every day who say, Senator, I want to provide health care for my employees but the cost of it has gone up to the point where I cannot afford to provide it for them. Or, in the alternative, Senator, I am going to provide it for them, but I am going to ask them to pay for more of their premiums. And, Senator, in so many instances my employees cannot pay the additional premiums, and because they cannot pay the additional premiums, they lose their health insurance.

I believe that providing the sort of commonsense approach found in the Pregnancy and Trauma Care Access Protection Act of 2004 is one way to deal with this escalating cost of health insurance in the United States. The bill will give patients greater access to care. It will provide medical liability for those physicians who provide prenatal delivery and postpartum care to mothers and babies. Patients would not have to give away large portions of their judgment to their attorneys. Truly injured parties can recover 100 percent of their economic damages. Punitive damages are reserved for those cases where they are truly justified. Doctors and hospitals would not be held liable for harm they do not cause and physicians can focus on doing what they do best, practicing medicine and providing health care.

I, again, urge my colleagues to vote for cloture so we can debate this issue and have an up-or-down vote on this legislation. We owe it to the people of this country to have a robust debate of this on the Senate floor.

I close my remarks this afternoon by reading a letter from Laurence E. Stempel, an MD from Columbus, OH. This is from the letter he sent to his patients on June 23, 2003:

On June 17, 2003, I received my professional liability

insurance rate quote for the upcoming year, and it is 64

percent higher than last year. I have seen my premiums almost

triple during the past 2 years, despite never having had a

single penny paid out on my behalf in 27 years as a

physician. Even worse, during this time the insurance company

has reduced the amount of coverage that I can purchase from

$5 million to only $1 million . . .

In other words, his insurance has gone up astronomically and he is getting about 80 percent less coverage than he had before. He said:

while jury verdicts have skyrocketed, often exceeding $3.4

million. If I were to purchase this policy, I would be

putting all of my family's personal assets at risk every time

that I delivered a baby, or performed surgery. I refuse to do

that.

I have therefore decided to retire from private practice. .

. .[T]he final day of my current liability insurance policy

[is when that will happen.]

This is not a decision I have taken lightly, but

unfortunately it has become necessary. For many of you, I

have been part of your life for years. I have delivered your

babies and helped you through some of life's most difficult

challenges. It has truly been an honor.

We have to stop this from happening in this country. We have the power to do something about it on the floor of the Senate, and it is about time we faced up to our responsibility and did something about it.

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

Mr. President, I join with my colleague from Alaska in congratulating Senator John Glenn on the honor he received.

I am rising today, however, to speak about the bill which is hopefully going to come before the Senate and on which the majority leader has been so eloquent, as he often is. Especially when there are issues concerning the care for other people, the majority leader has truly established a record that is unique, certainly in the Senate, with the hands-on experience of physically saving lives as a result of his skills as a surgeon and a doctor. He has decided to bring to the Senate the issue of how we make sure women in this country have adequate access to doctors, especially during that period in their lives when they are delivering children.

I personally cannot think of anything more important to our culture than babies. If we were to pick one event in the life of a citizen of this country--or I suspect anywhere in the world--that really is an event of great wonder and alters a person's view of the world and how they work with the world, it is when one has a child. Certainly they want to make sure their children are delivered in a safe way and with the best medical help that can be obtained.

This is why this bill is so important, because trial lawyers do not deliver babies. Doctors deliver babies. If we do not have enough good doctors dealing with women who are about to deliver or who are becoming pregnant or who believe they wish to have a child, and to deal with them in a manner which allows women to have ready access so that they do not have to drive miles in order to see their doctor or they do not have to wait days in order to see a doctor because there are not any available, if we do not have that structure in our society then we put at risk our ability as a society to have healthy children and to have mothers who are comfortable and feel safe about the experience of childbirth. That is something that is serious.

Regrettably, that is where we have arrived as a society. Whether we like it or not, we have arrived at a time where women in this country are at significant risk of not being able to see a baby doctor because the baby doctors in this country are being driven out of the business by the cost of their errors and omissions insurance. That insurance has skyrocketed dramatically in the last few years as a result of lawsuits, and further in my statement I will get into some specific statistics that will show why these lawsuits are occurring and what their impact has been on the actual ability of doctors to practice, in a statistical term.

All of us who work in this area of trying to address the concerns of getting women decent access to doctors so they can have children safely have heard stories and anecdotes which are so regrettably consistent in the sadness of the tales that there has to be a great deal of truth to them. It is also supported by the numbers and statistics.

Last week I had the chance to meet with four obstetricians in New Hampshire. Two of them had to get out of the business of delivering babies. It was the favorite part of their practice. They were OB/GYNs. The cost of their insurance had increased so dramatically they could no longer afford to go into the operating room and deliver a child. Neither of those two doctors had ever had a claim against them relative to the children they had delivered before they gave up the practice, and they delivered quite a few.

Two of the other doctors were still delivering babies, but they had significantly curtailed their practice or their practice had been dramatically impacted by the cost of their insurance. One doctor told us everything he earned in the first 5 months of his practice every year went to pay his insurance premiums relative to a potential claim against him, and he never had a claim against him personally. There had never been a claim. Yet his premiums had jumped over 100 percent in the last 3 years. He was finding it very difficult to stay in the business of delivering children, but because he was the only doctor in that part of our State who was really doing that, he felt a social obligation to continue delivering babies, as well as the fact that he personally loved the practice of delivering babies. It was getting to a point where he was not sure how much longer he could do this.

Also at this meeting there were two doctors who should have been there but were not because they had left the practice. They were two doctors from northern New Hampshire, which is a rural part of our State. They are no longer practicing and delivering our children. As a result, there is no doctor in northern New Hampshire today who delivers babies. There is no OB/GYN because they have been driven out of the practice of medicine. Those two doctors have left the practice in that area. One moved to another State and the other simply dropped the business of delivering babies.

The stories go on. They are real and they impact real people. In order to see a doctor, a woman in northern New Hampshire today who is pregnant has to now drive from Colebrook, NH, probably down to Hanover, NH, or at least down to Littleton at the closest, which is a long drive. It is a curvy road and in the winter it is a difficult drive. Even though people are comfortable driving in the winter in New England and in New Hampshire, we can get some serious snow and ice and it can be very testy and sometimes one cannot even get through because the snow cannot get removed in time or it is too heavy. So that woman is at risk, and it is not just in New Hampshire.

This is a photograph of a woman from Arizona named Melinda Sallard. She was forced to drive about 45 miles in order to deliver her child. In the first 2 blocks, they drove by the hospital that was next door to their house, but there was no OB/GYN doctor there because they had given up the practice, so she had to drive 45 miles to the hospital. On the way, she had the baby in Arizona. The baby's heartbeat had actually stopped while she delivered it in the car, and while her husband kept driving to the hospital, she was able to start the baby's heartbeat again and the baby survived. Now we see the photograph, but it was risky and it was traumatic. She should have had a doctor in the hospital that was almost next door to her house, but she did not. She did not because the doctors in that hospital had to give up the practice.

We have Dr. Schmitt, one of the best doctors in North Carolina, according to the patients who saw him deliver babies, who loved the practice, but because the cost of his insurance went up so much as a result of the potential of a suit, of which I understand he had never had any, he had to give up the practice. This is a picture of the doctor and I think just about the last child he delivered. The child is not very happy about being the last child he delivered. He does not have a smile on his face. He wanted the doctor to deliver other children. Dr. Schmitt had to give up the practice. He actually moved because he could not maintain the premiums that were driving up costs so extraordinarily.

What is causing this? Essentially, it is being caused by lawsuits, many of them frivolous. In fact, there is a statistic that says only 4 percent of the lawsuits against OB/GYNs have a recovery. The rest are frivolous--not all frivolous, maybe, but the majority are. The rest don't lead to any recovery at all. But as a result of those 4 percent of lawsuits getting astronomical recoveries, the whole pool of coverage costs for all baby doctors has increased so dramatically that they have been driven out of the business or they have been put in a position where they can no longer deliver children in a manner which is either fair or accessible for many women.

We are at serious risk of having this discipline so contracted that we will end up rationing care in this area, which could be very serious and unfortunate for women. It is a function of the fact that our legal system has run amok relative to baby doctors and the women who need to see those baby doctors. I have heard our candidates from the other side of the aisle, both of whom are Members of this body--I have heard Senator Kerry say: I have spent my career fighting against special interests. I think he has said that almost every day, but that is a direct quote from the newspaper where he said it in Boston. ``I spent my career fighting against special interests.''

Where is he fighting for these women? Where is he when these women want to see a OB/GYN and they can't? I suggest maybe he is fighting for the special interests on the other side of the coin, those who are the trial lawyers. For some reason the trial lawyers

appear to have the ear of the majority--not the majority but of enough so we cannot even hear about this bill on the floor much less vote on it. We should at least be able to take up the bill. But, no, no, the trial lawyers aren't going to let us take up this bill. We are not even going to be allowed to debate it on the floor and have votes on amendments.

Maybe some who spent their career fighting special interests could come down to this floor and explain that one to me. Explain to me why Dr. Schmitt isn't practicing medicine anymore. There is somebody who needs someone to fight for him. Explain to me why Mrs. Sallard had to drive 45 miles and have her baby in the car. Explain to me why we don't have a doctor in Colebrook, NH, who will deliver babies or see people when they want to have babies. Explain that to me if you want to talk about fighting special interests or maybe come down and explain to me why trial lawyers are right. Then you say you fight against special interests. There is an irony there.

I have heard Senator Edwards say: ``I want to make health care a birthright for every single child born in this country.'' That is Senator Edwards in the Des Moines Register--``every single child born in this country.'' Senator, come down and explain to us how children are going to be born if their mother cannot see a doctor. What type of risk is that child going to be at when they are born if the mother cannot see a doctor in Colebrook?

This bill is being held up because there are interests out there that do not want to bring this issue to the floor of the Senate even for debate. They just want to stiff-arm it on behalf of an interest in this country which believes that it should have the right to bring these suits but has, as I said, 96 percent of them thrown out of court and in the same manner throws out of the delivery room the doctors, throws out the women to be on their own to look for a doctor miles away, at great inconvenience.

This is a battle of special interests. My special interest in this one happens to be babies and mothers. Somebody else's special interest happens to be the trial bar. I am happy to defend this special interest, babies and mothers, on the Senate floor today. I would like to know why the other side is not willing to let us have this bill come forward.

Let's get into some specifics about the size of the problem. The next chart we have shows the cover of Newsweek, which ran a very good piece on ``Lawsuit Hell, How Fear of Litigation is Paralyzing Our Professionals.'' Right in the middle is a doctor. It could be a midwife. Remember, midwives are as much affected by this as doctors. But essentially it is those people you see when you most need them, and especially if you are a woman and you want to have children. That person's career is paralyzed, and as a result of their career being paralyzed, our ability to get adequate health care is paralyzed. It is a good story. I recommend it to everybody.

I want to make the point this is about women and it is about women's right to access decent health care. So speaking on behalf of that special interest--I know Senator Kerry is fighting against special interests, and he is probably fighting against this special interest, but I want to put something on the record. I don't want to put it in the Record because we will ruin the Record, but I want to mention that we have 85,000 petitions. Eighty-five thousand women have signed petitions asking that we at least consider this bill, where we at least get a vote on whether or not their doctors can have some protection. Eighty-five thousand women want to see a doctor, want to be safe when they get into those child-bearing years. They want to have the opportunity to have safe medical care.

So we have brought those petitions here today. I am obviously not going to put them in the Record. I don't want the American taxpayer to have the expense of printing this. But I want to make it clear this is about real people, women who need health care, and especially need it when they are about to have children.

The extent of this crisis is significant. It is not limited to New Hampshire, although New Hampshire has a very definite problem. The American Medical Association has developed this chart which basically color-codes States on the effect of the medical liability crisis on the availability of doctors. There are a number of States in this country where it is getting to be critical, where you are in a crisis mode if you want to see a doctor because you may not be able to see one. Those are the States in red.

If you recall, in West Virginia the doctors actually weren't available for some time because of that issue. In Pennsylvania the same problem arose. It arose in State after State, large States with large populations: Florida, Texas, Pennsylvania, Ohio, Missouri, and smaller States, too, such as Wyoming. Every one of those red States is in crisis. That means there is a real problem, that you may not be able to see a doctor when you want to have a child or getting to see that doctor will be difficult.

The yellow States are the ones moving toward crisis. This is not an abating problem; it is a growing problem. Only the white States, and there are very few of them, have been able to get their acts together, and we will find out why in a few minutes when we start talking about what States have passed limitations on liability insurance, and that being the issue.

I want to take a specific look at a specific State which is in crisis: New York. New York State--I just picked New York out arbitrarily--is in crisis. This is for baby doctors. There are seven counties in New York where there are no obstetricians, where, if you are an expectant mother and you want to go see a doctor, you cannot stay in the county you are in. Some of those counties have a fairly high delivery rate: 200 in this county, 289, 215, 322 children. This is on an annual basis.

Then there are a number of other counties which only have one obstetrician, and some of those counties have even larger numbers of delivery rates. So you are dealing with some people who are having to drive a heck of a long way in order to see a doctor. And New York State can get pretty cold and snowy, especially around Buffalo and Syracuse, where, as far as I can tell, it always snows except for in June and July. In any event, it can be hard to drive if you are an expectant mother. You can be under a lot of pressure to get to those doctors.

It is not that they can't practice in those counties; it is that they cannot afford to practice in those counties. Why can't they? This problem is a uniquely rural problem in some ways. In order to pay that insurance premium, which is so high and has gotten so extraordinarily high over the last few years--in order to pay that premium you basically have to deliver a lot of babies.

If a doctor has a practice in a rural area, not generating a huge amount of births, then you cannot work hard enough or deliver enough births to pay your premium. The doctor I mentioned from Laconia, NH--by our standards a fairly populous area of our State; not overly populated but a fairly decent community--has to work 5 months to pay just his insurance premium. If he were working in Colebrook, obviously, he would have had to work all year to pay the insurance premium and then he would not have earned enough to pay the premium. That is why we have no OB/GYN in Colebrook, NH. There are not enough babies being delivered. The premiums have gone up so radically they cannot afford to continue to practice.

I am sure there are a lot of places in the Presiding Officer's State of Kansas which have the exact problem. I know parts of Kansas are reasonably rural. Those folks probably have to drive a long way to see a doctor. Kansas is a big State compared to New Hampshire. It is flat, so it is an easy drive, but still it is a long drive.

Let's talk about some of the statistics so this is not just anecdotal: 72 percent of the OB/GYN doctors in Pennsylvania surveyed have changed their practice to reduce their liability--that means they have stopped delivering babies; 75 percent of the OB/GYN doctors in West Virginia, as well; 71 percent in Kentucky. There are dramatic drops in doctors willing to deliver babies or do any high-risk procedures at all.

OB/GYN doctors in New Hampshire experienced a 100-percent increase in premiums within 3 years. That is a staggering number. As I mentioned earlier, only 4 percent of the lawsuits

brought relative to OB/GYN practices actually lead to recovery. That is staggering because it shows there are a lot of frivolous lawsuits.

What is the way to resolve this? There are a lot of moving parts in the health care question. I am not saying the only issue that affects costs that the OB/GYN doctor incurs during their practice is the liability issue, the insurance issue, the issue driven by lawsuits which have no relationship to a doctor's practice because the doctor has never been sued. There are other factors. There is technology, hospital associations, all sorts of factors. Obviously, the insurance industry has gone through some significant adjustments, especially in the rate of return on investments as a result. But we know the single most significant factor by far is the increase in costs of the insurance policy. That is the item that is most affecting the ability of the doctors to continue to practice.

We also know those States which have taken action in this area have actually been able to control the costs so the doctors are no longer feeling pressure at that level. The best example is California. Liability reform occurred in California, with caps, in 1977. As a result, in the California cost increase experience, premiums have gone up 182 percent compared with the rest of the United States, which has gone up 573 percent. The chart shows the difference. It reflects the fact that if you put in a responsible approach to premiums to liability insurance, you can control the rate of growth of the cost and, as a result, you can create more availability of doctors and more affordable health care.

This chart shows that reform works. The bottom line reflects obstetrics. The first two areas, Los Angeles and Denver, have in place laws which limit recovery in the area of pain and suffering. Their basic premium for a policy of $1 million/$3 million is $54,000 and $33,000. The next four jurisdictions do not have those laws: New York, Las Vegas, Chicago, and Miami. Premiums in Miami are almost four times higher than Los Angeles, which would be a comparable city, and about seven times higher than Colorado; Chicago, two times higher; Las Vegas, two times higher; New York, 1\1/2\ times higher than Los Angeles; two times higher than Denver. That reflects the fact that if you put in responsible reform in the area of liability insurance you can control those premium costs.

What is responsible reform? It is reform that addresses the primary concerns of a person who is injured but also addresses the fact that we have a large number of frivolous lawsuits being brought and a large number of lawsuits leading to extraordinary recoveries, which costs are being passed on to all the OB/GYN baby doctors in this country. As a result, baby doctors who have absolutely no history of malpractice are forced out of practice and mothers are not able to see their doctors and are being limited in access.

This bill tries to address that. First, it says right off the top that a State has the right to make a decision on what the cap will be. We have essentially addressed this issue of States rights. We put in a cap that if a State wants to go above it they can go above it; if they want to go below it, they can go below. We also say there is no limitation on recovery for medical costs.

There was a recent decision where, unfortunately, there was a severe injury and the child would need medical care for years. The bill came to something like $18 million. That would be an award that could occur if that was the child's medical costs; that could be recovered--whether $18 million, $10 million, $5 million, even more, $20 million. Hopefully, that will not happen too often but if it does the parents have a right to that recovery.

As to lost compensation, if the mother is injured and there is a loss of compensation, if she has a job that she can no longer go back to or is limited in her ability to get a job, there is absolutely no limit as to what the recovery is relative to her compensation. If she is going to have a lifetime expectancy earning of $10 million, discounted to whatever that is, she gets that recovery.

What we do not have in this bill, or what we try to cap because this is where the costs have gone out of control, this is what is driving the premium rates, is a limit on pain and suffering, which is basically the money that is thrown on top. Pain and suffering is what a jury feels when they hear a sad story that they think deserves an extra bonus award. That is limited to $250,000 under this bill. That is a reasonable limit. Most States are at that number that have acted in this area. But if a State wants to go above that area, it can step out of that and pass a higher amount.

The practical effect of this bill, should it pass, is that the 85,000 women who have written to us, the literally hundreds of thousands of women who are worried whether they will have a good doctor to see or even whether they will be able to see a doctor or whether they will have to drive many, many miles to see a doctor, putting themselves at risk, those women's concerns will be addressed to some degree because we will make practicing medicine in the area of delivering babies affordable again. We can get a doctor back in Colebrook. A doctor will not have to work 4 or 5 months of the year just to pay his or her premium. Doctors who love to deliver babies in Dover, NH, will be able to get back into the business of delivering babies because they will be able to afford the premium.

That is what this is all about. It is about giving women the opportunity to have access to good doctors who can deliver babies and have those babies be healthy. Why we are not even going to be allowed to vote on going to this bill is beyond me, but that, I understand, is a position the Democratic leadership has taken. It seems ironic in the face of Senator Edwards' statement, which I will read again, as the potential standard bearer of his party: ``I want to make health care a birthright for every single child born in the country.''

It is going to be hard for children to be born if they cannot see baby doctors. I do not understand why we cannot at least debate this issue on the Senate floor and have a vote on it. Senator Kerry would appear to want to do this because he wants to fight special interests. Well, I want to promote this special interest--which is children, mothers, expectant mothers, and doctors who deliver babies. So if the other side wishes to oppose those three constituencies, that is their choice. But I think they need to explain to us why it is good for a mother, good for a baby, or good for a baby doctor that the practice of medicine is being curtailed in this country in the very critical discipline of obstetrics.

Mr. President, I understand the Senator from Vermont wants the floor so I yield.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, let me welcome everybody back from the Presidents Day recess. I also thank Senator Breaux and congratulate him on the delivery of George Washington's Farewell Address. He is the 112th Senator to give the address. The first reading of George Washington's address actually occurred on February 22, 1862, during a joint session of Congress and was given by the Secretary of the Senate. Beginning in 1893, the Senate made the reading of the address an annual tradition. And since that time, each year, in an alternating fashion between the parties, George Washington's birthday is observed by the reading of the 7,641-word address. I commend Senator Breaux for his contribution today.

Today the Senate will begin consideration of the motion to proceed to S. 2061, the OB/GYN medical liability bill. Chairman Gregg is here to manage debate, and I encourage Senators to come to the floor to debate this sorely needed women's health access issue.

Due to objections on the other side of the aisle, it was necessary to file a cloture motion on this pending motion to proceed. That cloture vote on proceeding to the OB/GYN medical malpractice bill is scheduled for tomorrow at 5 p.m. Therefore, there will be additional debate time tomorrow before the vote. However, I know many Members are interested in this bill and hopefully are prepared to speak today. We will have no rollcall votes today. The cloture vote will be the first vote tomorrow.

Over the next few minutes I would like to make a statement on the Healthy Mothers and Healthy Babies Access to Care Act.

Mr. President, our medical litigation system is failing the American public. It is failing our communities, our hospitals, our doctors, and our families. Most importantly, it is failing our patients. Its purpose should be to promote the common good and improve the health care of all Americans through the fair and efficient resolution of meritorious medical negligence claims. But instead of accomplishing this noble goal, our litigation system is out of control. It is broken. It is causing a health care crisis. Due to this broken system of medical justice, medical liability premiums are skyrocketing. The result: The system is in crisis.

The ultimate victims are the patients who see that their access to care being threatened and in some cases their access to care is disappearing altogether. In addition, this ailing system hurts our Nation even more by directly and indirectly costing us billions of dollars. The situation is grave. It is being brought to the Senate floor because it is grave, because the system is broken, and because the crisis is getting worse by the day. Every day that we talk without acting is a day of continued decline.

We have all seen the headlines of the horror stories of hospitals closing obstetric wards; of trauma centers having to shut their doors because of the liability crisis; of expectant mothers unable to find obstetricians, having to switch from obstetrician to obstetrician because their obstetrician is having to leave town or leave their practice; the stories of doctors dropping services of specialized care; the stories of doctors having to move from a State where the liability premiums are so high that they can't afford it to other States where effective liability reform may have already taken place and they have lower premiums. The headlines go on and on and on. Almost daily there are fresh stories and new victims.

The problems are so severe that Time magazine, in its June 9 cover article, devoted the article and the front page to this very problem. The American Medical Association lists 19 States where access to quality care is in serious jeopardy right now. As a physician, as a doctor, this crisis and the worsening of this crisis really strikes home to me personally. When I go back home or travel around the country and talk to my physician colleagues, they tell me of personal stories that are causing changes in the way they practice medicine. Many doctors consider the current medical litigation system as the single greatest threat to providing patients today with affordable, high- quality health care.

At first, the problem of skyrocketing medical liability costs presents doctors with uncomfortable choices. But in the end, it is the patients who are hurt. It is the patients who suffer. Skills of physicians are redirected. They leave their practice. They are no longer available to give care and patients receive less care. No longer is this a problem of an additional expense of doctors or for doctors all across the country; it is now an issue of health care for all.

What makes this situation so tragic is that highly qualified and committed doctors are literally being forced from their fields of medicine, fields they have devoted their lives to, fields they cherish. We are not talking about a few bad doctors who are leaving. Rather, we are talking about the very best men and women in the health care field today who have devoted their entire professional lives to healing others. These good men and women don't want to drop these specialized services such as trauma care, delivering babies, working in emergency rooms. They don't want to move from already underserved areas, either urban or rural. They don't want to stop seeing those expectant mothers. They don't want to be unavailable if somebody comes to a trauma center or to an emergency room.

Tragically, and all too often, the current liability system leaves them with no choice. The current system doesn't single out bad doctors or negligent acts or poor quality of medicine. Our medical litigation system has not made medical care in the United States safer or better. In fact, in many cases it has made care just the opposite--less safe.

How? By discouraging doctors from sharing information that could prevent medical errors and by encouraging doctors to order unnecessary and costly tests that sometimes do more harm than good. The exploding costs hit almost all doctors and hurt patients by driving up unnecessarily the cost of medical care of everyone who is listening to me right now. Your health care costs are higher because of these unnecessary and frivolous lawsuits. You are being affected. Our current medical litigation system is the root cause of this crisis. It is an inefficient system that is full of perverse incentives. The current system hurts everyone seeking access to quality and affordable health care, and it hurts the very negligently injured patients it is supposed to be helping.

The system encourages lawsuit abuse by rewarding trial lawyers who file huge claims in friendly venues in search of the big payout. These lawyers often pocket up to 40 percent of any settlement or any payment the injured patients receive. That is 40 cents on the dollar that the trial lawyer pockets that does not get to that injured patient.

At the same time, many of the negligently injured patients--those who deserve to be compensated--never receive any compensation at all because their legitimate claims are too small for that personal injury lawyer who is out there looking for his or her big payday.

(Mr. ROBERTS assumed the Chair.)

The system compensates a few at the expense of the many. The effects of these massive suits are staggering. Between 1995 and 2002, the average claim payout for medical malpractice jumped 83 percent. Between 1997 and 2002, the percentage of medical malpractice payments of a million dollars or more more than doubled.

The mere threat of huge jury awards forces many doctors and insurance companies to settle cases for large amounts, even if they are not guilty.

The current system encourages frivolous lawsuits, unnecessary lawsuits. Most of the cases filed in U.S. courts are without merit, with almost two-thirds being dropped or dismissed; that is, two out of three are being dropped or dismissed. Only 1 out of 20, or 5 percent of cases, actually go on to trial, and a staggering 80 percent of those cases are won by the defendant. These numbers are clear evidence of the rampant abuse of the current system, and the system must be reformed.

It should be no surprise that this excessive litigation is forcing malpractice premiums to rise dramatically. In 2002, physicians in many States saw their premium rates rise by 30 percent or more. In some States, for some specialties, malpractice insurance is rising by as much as 300 percent per year.

We debated this issue last July with a comprehensive bill, S. 11, the Patients First Act. That broad, comprehensive reform measure was designed to put our medical litigation system back to work for all Americans. Bringing the bill forward in July was the first time that the Senate had ever considered comprehensive medical litigation reform as its own freestanding bill. Unfortunately, the measure was never fully debated, as opponents of reform blocked it by filibustering the motion to proceed.

Since that time, the horror stories have not stopped. In fact, they have increased. Because this issue is so critical to the health of Americans, and because this crisis continues to escalate, we will try once again to address it on the floor of the Senate.

This time, instead of bringing up a broad, comprehensive bill and letting it suffer from the same political attacks as before, we have narrowed our focus on one of the groups most severely hurt by the crisis, obstetricians and gynecologists. More importantly, we want to focus specifically on the health care needs of women and children and babies. The underlying bill, the Healthy Mothers and Healthy Access to Care Act of 2003, is narrowly tailored to focus on obstetricians, gynecologists, and other doctors who perform these services. In the more narrow scope, the reform measures are almost identical to the ones in the more comprehensive bill, S. 11.

OB/GYNs, by the very nature of their work, are a higher risk specialty group, so it is understandable that their liability premiums would be somewhat higher than lower risk doctors. However, the amounts that OB/GYNs are paying throughout the country for liability insurance today are staggering. For example, locally, in Virginia, OB/GYNs are paying up to $84,000 in medical liability premiums per year. At the outset, I will say all OB/GYNs have to have liability insurance. Today, all physicians have to buy medical liability malpractice insurance to practice. Locally, it is $84,000. In New York, they are paying up to $124,000 per year. In Pennsylvania, they are paying up to $153,000 per year. In Florida, OB/GYNs are now paying up to an astonishing $250,000 in premiums each and every year to stay in the practice of delivering babies. That is a quarter of a million dollars every year that obstetricians are paying in Florida.

I wish to stress once again that these are payments the doctors are making merely to purchase the liability insurance. Whether or not they have ever had a case brought against them, whether or not there has ever been a medical error or mistake made at all, this is what many obstetricians are having to pay in these States. There is no added value in that $250,000 to health care. These payments are not helping the patients live better lives or receive higher quality of health care, and these amounts are not being paid just by a few bad doctors. They are being paid by doctors who have never been sued, who are the best in their profession, who have dedicated their lives to helping women and children.

Because of these skyrocketing premiums and the constant threat of litigation, many obstetricians are leaving their practice because they simply cannot afford it. Who can blame them? If an obstetrician delivers 100 babies a year, and let's say just in Florida they are paying $250,000 for that opportunity to deliver babies, that is a tax of over $2,000 each time that obstetrician delivers a baby. If you are a mother listening, or an expectant mother who is getting ready to go in the hospital, I am saying that there is an additional $2,000 tax that the doctor is paying, which may well be passed on to you because somebody has to pay it. That is money that doesn't add to the care of your baby, or to the care of the delivery, or to the safety of the delivery, or to health care itself.

Women living in rural areas have an additional problem. They are finding now that there are too few doctors to deliver the babies in these rural communities. By now, most of my colleagues have heard the horror stories of women having to drive hours just to see an obstetrician, or in the course of a 9-month pregnancy, having two, three, four, or five obstetricians because many doctors are having to leave either a region or the practice altogether. A June 9 Time magazine article tells the tragic story of an expectant mother in rural Arizona having to drive 2 hours on a desolate highway just to see a doctor.

This should not happen in America. We should be encouraging physicians to practice in rural, underserved areas, not chasing them away with the threat of frivolous lawsuits. It should be no surprise that the American College of Obstetricians and Gynecologists is one of the strongest supporters of meaningful medical liability reform. Of course, they support this narrowly tailored bill. Their primary concern is women's access to affordable, quality health care. They are uniquely situated to understand the threat the current system has placed on women's health and babies' health, and they are demanding action by Congress. They will not tolerate filibusters or blocking this issue. I urge my colleagues to listen to their unique concerns.

In a statement to the Senate Judiciary and HELP Committees last year, the American College of Obstetricians and Gynecologists very clearly outlined the problem facing women. They said:

An ailing civil justice system is severely jeopardizing

patient care for women and their newborns. Across the

country, liability insurance for obstetricians-gynecologists

has become prohibitively expensive. Premiums have tripled and

quadrupled practically overnight. In some areas, OB/GYNs can

no longer obtain liability insurance at all, as insurance

companies fold or abruptly stop insuring doctors.

When OB/GYNs cannot find or afford liability insurance,

they are forced to stop delivering babies, curtail surgical

services, or close their doors. The shortage of care affects

hospitals, public health clinics, and medical facilities in

rural areas, inner cities, and communities across the

country.

These are the words of the American College of Obstetricians and Gynecologists, the ones on the front line in women's health care today.

The system is broken. The system is hurting women and babies today. This was very clearly spelled to the Senate Judiciary and HELP Committees last year.

I have a series of letters from doctors in Tennessee and, indeed, from around the country. At the appropriate time, I will enter several of these letters into the Record rather than take the time now because there are Senators in the Chamber who wish to debate this particular issue. Let me simply say that as a physician, as majority leader, as a representative of the people of the great State of Tennessee, I have letters from Paris, TN, from Athens, TN, Shelbyville, TN, from Memphis, TN, from obstetricians who are basically saying there is a crisis going on and asking that we do something about it.

I do hope the opponents of reform at least acknowledge the severity and gravity of the problem and don't run from it once again. We must acknowledge the symptoms of the crisis before we start to address its cause. Unfortunately, these horror stories are truly just the tip of the iceberg of the problems caused by our broken litigation system. The system costs our country directly and indirectly billions of dollars-- wasted dollars, I would argue--each year. These costs are the sort of costs that don't find their way into letters to us as elected officials or into newspaper articles, but they hurt the American people.

The fear of these outrageous lawsuits forces doctors, for example, to practice defensive medicine. Slowly, but surely, people are understanding what defensive medicine is. As a doctor, I know these pressures all too well.

In order to avoid lawsuits--frivolous lawsuits--and to make sure they would

be fully protected in the event they were called into question by an unnecessary or frivolous lawsuit, we find extra tests and procedures are ordered. They are unnecessary to the care of that particular patient or that particular patient's problem. It is a waste. Yet the system we have today incentivizes those unnecessary tests.

These extra steps add little, if anything, to the quality of health care, but they add a lot to the bottom line of health care costs because hundreds of thousands of doctors actually order these unnecessary tests. The cost adds up.

We all hear of the $700 CAT scan or MRI scan for a routine headache that an emergency physician orders simply out of practicing defensive medicine. It is no surprise to me that surveys show 75 percent or more of doctors acknowledge practicing defensive medicine.

The exact number is hard to calculate, but reports have put the cost of defensive medicine at tens of billions of dollars per year. When you realize that three out of four doctors frequently order tests or procedures, these total dollar figures, indeed, are realistic. In fact, a recent Government report estimated reasonable liability reform would save the country health care costs of $70 billion to $126 billion per year in defensive medicine expenditures.

In addition to these massive indirect costs, the Federal Government would save over $14 billion directly over 10 years with comprehensive liability reform, according to the Congressional Budget Office. The CBO attributes most of these savings to the Medicare and Medicaid programs which would experience lower health care costs. The Federal Government would also realize savings from lower costs of health care benefits for Federal employees.

The current medical litigation system also impedes our ability to improve patient safety. The threat of excessive litigation by unscrupulous lawyers discourages doctors from openly discussing medical errors in ways that, if that discussion could take place, would dramatically improve health care delivery in this country.

These facts were outlined and well documented in the 1999 Institute of Medicine report ``To Err Is Human.'' That is why in addition to the reforms in this bill which hopefully we will be considering on the floor of the Senate, most of us are strong supporters--or we should be--of S. 720, the Patient Safety and Quality Improvement Act. This is vital legislation that will encourage a culture of safety and quality by providing for voluntary reporting of patient safety data without the fear of being sued.

Some of the opponents of the legislation we are debating today will try to confuse the medical malpractice issue with patient safety. If you listen closely, you will hear them say, in effect, that we need to maintain our broken medical liability system in order to reduce medical mistakes. Do not be misled. This argument amounts to nothing more than defending the status quo. In fact, as the IOM has said, and as we know from adopting voluntary reporting and learning systems in other contexts, such as in general aviation--more lawsuits don't improve quality--they make matters worse.

Our health care system must put a greater emphasis on preventing medical errors, not hiding or surpressing these errors due to fear of lawsuits. To create such a system, we must pass both patient safety legislation and litigation reform. And I am committed to passing patient safety legislation too. It is now being blocked by at least one Senator on the other side of the aisle despite the fact that it has passed the HELP committee unanimously.

Fortunately, we know how to address the cause of the crisis because reform measures have already succeeded at the state level. The Healthy Mothers, Healthy Babies Access to Care Act is based on these reforms. It is a common sense measure that will restore balance to our broken litigation system in the narrow area of OB/GYN services. It will protect the right of the negligently injured patient to sue for just compensation while curtailing lawsuit abuse. Though this bill has a narrow scope, it is comprehensive reform with several critical components. Let me briefly mention just a few key provisions.

The bill ensures that injured patients will receive a larger percentage of their award by limiting attorneys contingency fee to a reasonable sliding scale. For awards over $600,000, lawyers can keep 15 percent of any payment. Currently, lawyers in many states can take up to 40 percent of all awards and settlements, leaving the injured patient grossly undercompensated.

The bill places a statute of limitations of three years on bringing a suit. This ensures that a suit will be brought in a timely manner and evidence preserved.

The bill controls excessive awards for noneconomic damages by placing a $250,000 cap on these types of awards. Noneconomic damages are subjective awards for pain and suffering that cannot be easily quantified. They contribute greatly to the personal injury lawyers' lawsuit abuse. Of note, the caps contained in this bill are ``flexible'' and do not preempt state law. Thus, if a state has already defined a different cap on noneconomic damages or subsequently passes a different cap--whether higher or lower--that State designated cap prevails.

At the same time, the bill ensures that negligently injured patients will receive full economic damages. Economic damages are the out-of- pocket expenses that a victim might suffer due to a doctor's negligence, such as hospital costs, doctor bills, long-term care, other medical expenses, and lost wages. When a patient is negligently injured, they deserve full economic recovery.

Experience at the State level clearly shows that comprehensive medical liability reform works. The Healthy Mothers, Healthy Babies Access to Care Act is modeled after California's Medical Injury and Compensation Reform Act, or MICRA, which became law in the mid 70's. Thanks to MICRA, California doctors and patients have been spared the medical liability crisis that other states are facing. You simply don't hear the horror stories about OB/GYNs quitting their practice or women unable to find an obstetrician in California. This is true despite the fact that it is a big State with a high cost of living. In fact, since MICRA passed, total insurance premiums paid in California have risen by only 167 percent while total insurance premiums paid for the rest for the country have risen by 505 percent--more than three times as much.

Over the next day or two as we discuss this bill, opponents of reform will likely go to great lengths to blame the current crisis on insurance companies, the stock market, the bond market, doctors, hospitals and on and on. I fear we will hear this crisis blamed on just about everyone and everything except for the true cause--the current litigation system. The system is broken. This broken system is hurting patients and now is the time to fix it.

I urge my colleagues to support the Healthy Babies, Healthy Mothers Access to Care Act. This narrowly tailored, commonsense reform of our broken and inefficient medical litigation system will be a big step in improving our health care system for all Americans. Passage of this measure will help ensure access to quality health care for women and babies, protect negligently injured patients, and save our country billions of dollars in health care costs every year.

Mr. President, I yield the floor.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, last week the Senate was not in session and most of us in the Senate were in our home States. I spent most of the week in North Dakota visiting with people about the economy, jobs, health care, and a wide range of issues. I had meetings on the issue of No Child Left Behind, on the significant problem in rural States with methamphetamine and the scourge this deadly new drug poses to young people and to law enforcement. A lot of us were doing a lot of activities last week. I wish to talk about a couple of issues that happened since we left town.

Last week, there was a lot of discussion about the Economic Report of the President that was sent to the Congress just prior to our leaving town.

This week's BusinessWeek, March 1, 2004, says:

Will Outsourcing Hurt America's Supremacy?

That is similar to the front cover of BusinessWeek a year ago:

Is your job next? A new round of globalization is sending

upscale jobs offshore. They include chip design, engineering,

basic research--even financial analysis. Can America lose

these jobs and still prosper?

So BusinessWeek, in front covers, now and exactly 1 year ago from now, asks the same questions: Will outsourcing hurt America's supremacy?

The issue of outsourcing of jobs has been raised in the President's Economic Report, and there has been a lot of discussion about it. I thought it would be helpful perhaps to read it because it gets back to the question of international trade and its impact on our economy.

On page 25 of the Economic Report of the President, it says: Outsourcing of professional services is a prominent example of the new type of trade. The gains from trade that take place over the Internet or telephone lines are no different than the gains from trade in physical goods transported by ship or by plane. When a good or service is produced at a lower cost in another country, it makes sense to import it rather than to produce it domestically.

Let me read that last sentence again. When a good or service is produced at a lower cost in another country, it makes sense to import it rather than produce it domestically.

So that created a significant debate. This is a booklet, the Economic Report of the President, that is extolling the virtues of outsourcing of American jobs. It is safe to say, perhaps, that no economist who worked on this booklet has ever had their job outsourced. In fact, I know of no American economist who has lost his or her job because of outsourcing. I also know of no politician in this country who has lost his or her job because the job was outsourced to Sri Lanka, Bangladesh, China, or Indonesia.

So it is easy then for politicians and economists to thumb their suspenders, smoke their cigars, ruminate, cogitate about these things, and come up with this goofy idea that somehow when a good or service is produced at a lower cost in another country, it makes sense to import it rather than produce it domestically.

I will take this point just for a moment and see if I can dissect it by talking about bicycles. I know I have spoken about this before, but repetition is the hallmark of good policy, so let me do it again. When it can be produced less expensively overseas, the President's economic advisers and the President's report say do it. Well, Huffy bicycles are a good example. The company that made Huffy bicycles had 20 percent of the domestic market. People can buy these bicycles from Sears, Wal- Mart, and Kmart. Most people know about Huffy bicycles. They used to be made in this country. They were made in Ohio by American workers. Those American workers made $11 an hour making bicycles.

I did not know one of the workers but I am sure they were proud of their jobs and proud of their product. They made Huffy bicycles. In fact, on Huffy bicycles the decal on the front between the front fender and the handlebars was an American flag decal made by American workers. So Huffy bicycles moved to China. Why? Because it costs $11 to hire an American to work to make a Huffy bicycle and a Chinese worker can be hired for 33 cents an hour.

Huffy left Ohio and went to China. The last job that was done by the workers in Ohio was to replace the little flag decal with a decal of the globe. They removed the flag and put a globe on the front of Huffy bicycles.

The last bicycle that was boxed up and left the plant in Celina, OH, was at 10:15 in the morning when a red 20-inch

Huffy model was put in a box for shipment, and then Huffy changed its nationality. Huffy bikes are now Chinese.

Now, bicycles do not speak, so there was no visible sign of this change of nationality when the Huffy showed up at Wal-Mart or Kmart or Sears. They are now for sale as a Chinese bicycle rather than an American bicycle.

Question: Does anybody think that when Huffy decided to send its bicycle production to China, those bicycles ended up on the showroom floor of Wal-Mart or Kmart at a much lower price because instead of paying $11 an hour for workers constructing these bicycles, they were now paying 33 cents an hour?

Instead of having safe workplaces, there are none of those OSHA problems in China. Instead of having a manufacturing plant where they cannot put chemicals in the water and put chemicals into the air, there are none of those restrictions in China. Instead of having child labor laws where 12-year-olds cannot be hired to work 14 hours a day, there are none of those restrictions in China.

So is it less expensive to produce Huffy bicycles in China? Darn right it is. Does the consumer benefit from that? Do my colleagues think Huffy bicycles that showed up on the showroom floor of Kmart and Wal-Mart are less expensive bicycles after they cut manufacturing costs of workers from $11 an hour to 33 cents an hour? The answer is no, of course they aren't.

This has nothing to do with advantaging consumers. It has to do with corporate profits. It has to do with laying off Americans and fattening profits.

So going to page 25 of the Economic Report of the President, his economic advisers say: When a good or service is produced at lower cost in another country, it makes sense to import it rather than produce it domestically. The keyword here is cost. They know the cost of everything and the value of nothing, as the old saying goes.

I will tell my colleagues where things can be produced at less cost: Mexico, Indonesia, Bangladesh, China. I can name a dozen countries. But is that the only criterion? Is that the judgment we are going to make in this country: If it costs less somewhere, then there is an advantage to producing it there and shipping it back here and there is some sort of inherent advantage to our consumers? It is simply not true.

I do not understand whether it is being hard headed or soft headed to fail to understand the basic truths about international trade. I am not someone who believes we should build a fence around our country but I do believe there ought to be some fairness with respect to the rules of this globalization.

I will describe for a moment something I did just before the break. I came to the Senate floor and I listed--which, incidentally, is on my Web site as well at http://Dorgan.Senate.gov for those who might be interested--the top 100 companies that basically moved jobs to Mexico after the North American Free Trade Agreement.

Now these 100 companies--this is not conjecture from me--these are companies that certified to the Department of Labor that these jobs were no longer going to exist because of the North American Free Trade Agreement. Why did they certify it? Because they wanted to make eligible the workers who were being laid off for this transitional trade adjustment assistance. What a wonderful, remarkable term: Transitional trade adjustment assistance. That means, for somebody out there who is losing their job, they are going to be transitioned and they are going to get some assistance in the short term. Guess what. One loses their job, they get transitioned, we give them some money, and then go away, please.

So in order to get that transitional assistance, one had to have a certification from their company. So here is a certification. Levi Strauss, 15,676 jobs, mostly moved to Mexico; they certified that. I am not accusing them of it. I am just saying they certified that to the Department of Labor. Levi's, now that is all American; right? Everybody wears Levi's, but Levi's are not American anymore. They are made elsewhere. Fruit of the Loom used to be in Texas. They certified 5,352 jobs gone, T-shirts, shorts, underwear; Fruit of the Loom, not American, gone.

Do my colleagues want to order some Mexican food? Well, they do not have to say: Give me a chalupa, give me an enchilada. What they can say is: Give me some Fig Newtons, because Fig Newtons left America and went to Mexico. They are gone. Do my colleagues think Fig Newtons are made at home? No, they are not. Fig Newtons are on this list, certified as leaving America. Why? Because they can make them less expensively elsewhere.

How many Americans know that Fig Newtons now come from Mexico? So we lose our Fruit of the Loom, we lose our Levi's, we lose our Fig Newtons.

I am mentioning some things that are not high tech. I should mention some high tech--Motorola telephones. Let me give an interesting statistic that most people would not believe.

Do you know that after NAFTA, when we were told that what would be shipped to this country from Mexico would largely be the result of low- skilled, low-wage labor, they said that is what this is going to be. We are accessing the Mexican marketplace for low-skilled, low-wage labor which will ship jobs into this country and it will not displace those in this manufacturing sector who have good jobs, making good money, because they have high-skilled, high-wage jobs. Wrong. The three largest categories of manufactured items coming into the United States from Mexico are automobiles, electronics, and automobile parts.

Did you know in a recent year we imported more automobiles into the United States from the country of Mexico than we exported to all the rest of the world? I am going to say that again. The United States imported more automobiles from Mexico than we exported to all of the rest of the world. That describes to you what happened with NAFTA--a substantial flight of U.S. jobs, good manufacturing jobs, good-paying jobs to Mexico.

It is all about wages. I understand that. So you go to page 25 and the issue here is not about values. It is not about the American economy. It is not about caring whether this world-class economy of ours retains a strong manufacturing base--which I think is essential to be a country with a strong world-class economy. It is not about that. It is about cost.

When a good or service is produced at a lower cost in another country it makes sense to import it.

So you say, ``So long to American jobs.'' There are no tears shed for that with these economists.

Of course they sit there without worrying about their jobs because no economists I know have lost their jobs. No economists lost their jobs to NAFTA. No politician lost his or her job. Despite the fact that everybody was wrong.

This describes what happened. This happens to be the 100 top companies that certify job loss: Only with respect to Mexico; only with respect to NAFTA.

We were told. The best economists said: Pass this North American Free-Trade Agreement because if you do we will produce substantial new jobs. Guess what. We had a small trade surplus with Mexico. We passed NAFTA, the North American Free-Trade Agreement, and that small surplus turned into a giant deficit. Ross Perot called it a giant sucking sound, and those jobs have gone to Mexico wholesale.

We had a modest deficit, a relatively modest deficit with Canada, which is the other country that is the participant in the North American Free-Trade Agreement, and that has become a very large deficit.

In both cases with Mexico and Canada, all the experts were wrong and we have dramatically increased the Federal trade deficit with respect to both countries.

Let me also say in the Economic Report of the President there has been a discussion in recent days about what is manufacturing, because they pose the question on page 73. They ask a question.

The definition of a manufactured product, however, is not straightforward. When a fast food restaurant sells a hamburger, for example, is it providing a service? Or is it combining inputs to manufacture a product?

I don't know exactly which economist might have written page 73, but when a fast food restaurant sells a hamburger, is it providing a service or is it combining inputs to manufacture a product? This rather serious economist poses one of the questions of our

era: Should a hamburger be considered part of our manufacturing base? Should the making of a hamburger be considered part of our manufacturing base?

How about the person who hangs out the window and says, Do you want fries with that? Is that a key part of the manufacturing base? Where does this go?

What would your mom, or my late mother, think if you came home and said what you had been doing and you told her you had been manufacturing chocolate pie? I don't think so.

Sometimes in this town language becomes such a barrier to understanding. This is so fundamentally absurd on its face. Is making a hamburger part of America's manufacturing base? The answer is of course not. Of course not.

We have lost a massive number of manufacturing jobs in this country in recent years. I suppose some of the same economists who have sold us on this economic strategy may want to make it appear as if we have lost fewer jobs by counting those who construct a hamburger--two all-beef patties, special sauce, lettuce, whatever it is--as part of our manufacturing sector. But of course on its face that is nuts and this ought not be part of any significant or serious discussion.

There are a lot of questions being raised these days about jobs. Let me say I don't think, with all the discussion we have about social programs in the Congress, there is not a social program in this country that is as important as a good job that pays well. Because that is what helps provide the security for America's families.

We are going through a time when we face the loss of a lot of jobs. We face the restructuring of an economy. We did have a recession, relatively short. We are now a year and a half past that recession and the fact is we are still not producing any significant number of new jobs. So the question for all of us is, Is this economic strategy a strategy that produces new growth without new jobs?

Paul Craig Roberts, who was one of the top economists for the Reagan administration, recently wrote a piece suggesting that perhaps this is an economic recovery without new jobs. If that is the case, we have some serious problems ahead of us. He says maybe this new economy, this new growth, does create jobs but not in the United States; jobs in China, jobs elsewhere, just not jobs here. If that is the case, we face significant challenges.

We are going to have an agenda in this Senate that will move very quickly between now and the first Tuesday of November, which is election day. I understand all that. We are going to be working on a lot of extraneous issues, some because one side or the other wants to have a political wedge issue someplace. We on our side don't schedule this place. The majority schedules it at this point so they will determine what is on the floor of the Senate.

But for me, I believe there is not a more important issue that we need to deal with than the question, are we going to have an economic engine that creates jobs so the American families, as they talk about their lot in life, have a chance to visit about progress? How will American families answer the questions: Do I have a good job? Does it pay well? Do I have job security? Am I going to be outsourced?

And then answering the other questions that come from the ability to have a decent job, Do we send our kids to schools we are proud of? Do Grandpa and Grandma have access to good health care? Do we live in a safe neighborhood? Do we keep this country safe from terrorist attacks?

There are so many issues that confront us, but I think the issue of jobs is critically important and we spend far too little time working on it in the Senate.

I want to say this: Those who think it is a good thing to send America's jobs overseas, those who think this is a new economic approach that is good for America, don't understand. Because they have not been in that place. They have never been a part of a family where they know about secondhand things, second jobs, second shifts, and second mortgages. They have never been a part of that. They think it is just fine to construct some economic theory, some model that says if we can produce Huffy bicycles less expensively in China, good for us, let's do it. Except the consumer doesn't benefit from that, it is just the American workers who lose their jobs.

The questions these economists need to answer--and the politicians, incidentally, who support this, and there are plenty--is: Who will be the purchasers and consumers in an economy in which you diminish and then finally ship good jobs overseas? Who is going to purchase all of these things you are producing overseas?

I have given a number of trade speeches. I come to the floor of the Senate and talk about this repeatedly and nobody seems to care very much. That is lamenting. I should not say it quite that way. It does not result in dramatic change in public policy.

We can talk about the most recent trade agreement with China. We have roughly a $130 billion trade deficit with China right now. It has been growing leaps and bounds. Our negotiators negotiate an agreement with China and say on the bilateral trade with respect to automobiles: We will agree with this, China; you can ship any Chinese automobile you may wish to manufacture to the United States, and we will charge a tariff of only 2\1/2\ percent. And we agree any U.S. cars we try to ship to China are charged a tariff 10 times higher of 25 percent.

Stupid? Sure. On its face it is a stupid provision. We say to China, which has a $130 billion trade surplus with us, by the way, we will make a deal. We want to have bilateral automobile trade, and we will let you charge a tariff 10 times higher than we will.

I would love to find the negotiator who did that and see if we could not find a way to prevent them from ever having a public sector job once again. That makes no sense. Yet we see this time after time after time.

As I speak today, every single pound of American beef that is sent to Japan has a 50-percent tariff on it. We have a huge trade deficit with Japan. Every pound of American beef sent to Japan has a 50-percent tariff. That is 15 years after our trade negotiators reached a beef agreement with Japan.

This country needs to get a backbone and stand up for its economic interest. Yes, I am talking about ranchers. I am talking about manufacturers. I am talking about business owners who do business in this country and have to compete. We need a spine, backbone, some willingness to stand up for the economic interests of this country, not being protectionists but just saying there needs to be some basic rules.

If, in fact, we are a global economy--and, indeed, we are--then the rules with respect to that global economy need to keep pace with globalization.

We had people killed in the streets of this country in the last century. They gave their life fighting for some basic rights: The right to organize, basic rights for workers to organize. We had people fight on the issue of child labor to prohibit the sending of 12-year-old children down into the coal mines and into manufacturing plants. We waged fights over the issue of minimum wage and safe workplaces and the environmental laws that prohibit a plant from dumping its chemicals into the air and water.

Now we are told forget all that because if you are a global company, you pole-vault over that and go someplace where you do not have to worry about environmental or labor rules. That is a nuisance. Child labor, minimum wage, the right to organize, that is a nuisance.

This is what we have dealt with for 100 years in order to create a more perfect opportunity for business and labor. There is something fundamentally wrong.

I hope we can have a discussion about jobs in the Senate. I intend to offer a series of amendments at the next opportunity dealing with the issue of jobs and dealing with the issue of trade. The President has just finished a Central American Free-Trade Agreement. I believe we ought to have that debate in the Senate. He has just completed the Australian Free-Trade Agreement. We ought to have that debate in the Senate. I intend to be in the Senate opposing both. I will describe why later. Neither, in my judgment, represents the best interests of this country. I want trade pacts to be mutually beneficial. That means they need to benefit this country, as well.

What prompted me to speak were a couple things: One, this discussion

about outsourcing. The economists who wrote this--this is the President's book, actually signed by the President, but the fact is, I understand it is written by the President's economic advisers. He, in some ways, began to do a U-turn and lost the steering wheel and turned back again. My hope is the President certainly does not believe this nonsense. Outsourcing of good jobs in this country, outsourcing of manufacturing jobs, outsourcing of service jobs is not in this country's best interest. They say in the long run it will even out because the other countries will raise themselves up.

John Maynard Keynes said in the long run, we are all dead. I am interested in the next year, the next 5 years, the next 20 years. I am relatively uninterested in the realignment of the economies 100 years from now.

I want very much for this country to succeed. I want this country to remain a world economic power. It will not be a world economic power if it is deep in debt, up to its neck in fiscal policy deficits and up to its neck in trade deficits. We have fiscal policy deficits this year alone of about $660 billion. I know the numbers that are advertised are $530 billion, but that is if you take the Social Security revenue, which is a dishonest thing to do. So $660 billion in Federal budget deficits, and add to that the highest trade deficits in human history, very close to $480 billion, and it is appropriate to look at this country's fiscal policy and trade policy and ask: Where is the leadership? Where does the leadership come from to address these issues?

My hope is that I and others who care a great deal about this can provide some of that leadership. We invite the President and people from both political parties to join us. This President needs to speak forcefully in response to this ``Economic Report of the President.'' He needs to say: This is not what I mean. The economists may have written it, but I don't believe outsourcing strengthens our country. I don't believe moving American jobs overseas strengthens the United States of America.

I yield the floor and suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I rise to speak about the Nation's medical litigation crisis. I begin by explaining where we are in this process. It is the right of the majority leader to bring a bill up for debate. On the Senate side, it requires unanimous consent to have that debate. We have been denied unanimous consent to debate the medical litigation solution.

What are the options? We can have a cloture vote. We will have that tomorrow afternoon. The cloture vote requires 60 votes of approval in order to debate the medical litigation crisis solution. On most of the bills we see brought up, the unanimous consent is almost automatic. However, on this particular bill, we are not even able to debate the bill. We can debate it, but it has no effect. There can be no amendments. There can be no votes until the filibuster is broken.

What happens when the filibuster is broken? Technically there can be 30 hours of debate on that particular right to debate before the actual debate begins. Then when we actually do get to the debate, every single amendment can be filibustered and the bill can be filibustered. Supposing we make it past those roadblocks and the House passes the bill and there are differences between the two, there has to be a conference committee. At that point, there can be three more filibusters.

Our Founding Fathers intended for the Senate to be the cooling saucer for legislation. I don't think they intended it to become a stagnant pond. I do think they intended the bills would be debated and conclusions reached, there would be some time taken, but not all time taken.

We have a medical litigation crisis in this country. The system is broken. We need to start working to fix it. I urge my colleagues to vote for cloture on the Gregg-Ensign bill. It is time to stop filibustering and to start working. We should not be having this filibuster on whether to debate. We need to pass the motion to proceed and get into amendments on the bill if amendments are needed.

This is the third time in this Congress we have brought a medical litigation reform bill to the Senate. We need to pass this legislation. We need to pass some legislation that deals with this crisis. Passing this bill would be the best thing we can do to stabilize medical liability premiums in the short term, which will allow us to retain doctors in states like Wyoming, which will allow people to have access to doctors.

I proposed legislation aimed at solving this problem over the long term and I will speak to that later. But right now, we need to vote in favor of ending this filibuster against this bill so we can begin to debate the bill. I am willing to consider any amendments my colleagues in the minority might have, but we cannot consider any of their amendments until they agree to end this filibuster and begin debate on the bill.

I understand some Senators are concerned this bill would limit the ability of an injured patient to get fair compensation. This bill would do no such thing. This bill will not limit the ability of an injured patient to get fair compensation. This bill would permit full and fair compensation to patients for their economic losses. This is an important point for everyone to keep in mind. If a judge and jury were to decide a person suffered an injury due to a doctor's mistake or a hospital's negligence, that person would still be entitled, under this bill, to receive full compensation for their economic loss, including everything from rehabilitation to lost wages resulting from their injury.

I cannot stress this point strongly enough. This bill would not limit awards for economic losses. What the bill would do is place a ceiling on noneconomic damages. The bill would limit the maximum award for noneconomic damages to $250,000 in States that do not have their own limits on such awards. Noneconomic damages are those for pain and suffering.

I want to ask, How much pain and suffering do you have if you cannot even see a doctor? And if you cannot see a doctor, and you die, who do you sue? The trial lawyers? Maybe so. They are a part of the problem. I am not going to try to cover all of the parts of the problem. We are trying to fix one specific part of the problem. This bill will not take care of the whole thing.

But I want to ask you, How much pain and suffering do you have if you cannot even see a doctor? This is not primarily a city problem. You can have the problem in the city, and doctors are leaving cities as well. But in cities it gets glossed over a bit because there are so many doctors. There are so many doctors everybody anticipates they can find a doctor. Well, there are also more people in cities, so there are

more people waiting in lines to see the doctors. There is a limit to how long you want to wait in line to see a doctor, particularly if you are having an emergency.

This bill only covers two categories; one is emergency medical services, and the other is people who deliver babies. So I ask again: how long do you want to wait in the emergency room?

Is this proposal for a limit of $250,000 for noneconomic damages way out of line? I do not know. I do know California passed this limit. California put a limit of $250,000 on noneconomic damages, and it has made a difference. They are one of the few States in the Nation that is not having the problem.

Now, California, viewed by Wyoming folks, where I am from, is considered to be very liberal. So if they did it, this could not be a conservative move. If California can have a $250,000 limit, why shouldn't other places be able to? You may say: Well, States could pass their own. California did. States can. It is a very long procedure for some States. Wyoming has very limited legislative time, and then a lengthy procedure for having votes of the people before it then comes back to the legislature for additional work. So there are limitations in the States.

This can be handled on a national basis. If you hear this bill would limit an injured patient to receiving $250,000 in compensation, though, you can say that is simply false. There is no other way to put it. That contention is false.

This bill would also only apply, as I mentioned, to obstetrical services and emergency medical services. These are two of the areas of medicine where patients are in the most danger of losing their access to these services.

Once more, I ask, how many will be harmed by not getting to see a doctor? What do you do if you are a woman and you cannot see a doctor to deliver your baby? Baby doctors are particularly hard hit because the child can sue when the child reaches age, so the tail on their insurance is extremely long, and that provides additional opportunities to sue, which means additional cost for the insurance.

But we are also talking about the emergency medical services. In an emergency, as Senator Frist, the doctor of the Senate, pointed out, every single moment counts. There is, at most, a ``golden hour'' in emergency treatment. So if you have to spend that golden hour traveling 750 miles--as the Senator from Texas showed on his chart of Texas showing how far some people have to travel for specialized care--it could be too late.

Physicians are being hit with six-figure annual premiums in the medical specialties of obstetrics and trauma care. As a result, they are curtailing their practices, retiring early, or moving to States with better legal environments, because a better legal environment means lower insurance premiums.

In Wyoming, we have one of those bad legal environments. We do not have limits on noneconomic damage awards. We do not have limits, despite evidence that shows reasonable limits on noneconomic damage awards have helped control the rising cost of medical liability insurance premiums in other States.

As a result, people in Wyoming are losing access to affordable health care in their communities. The rising cost of medical liability insurance in my State of Wyoming is forcing doctors to curtail their practices or close them entirely. We have a shortage of doctors in Wyoming as it is, and the cost of medical liability insurance is making a bad problem even worse.

I want my colleagues to know we have a full-fledged medical liability crisis on our hands in this country, and particularly in Wyoming. Just last month, the largest of the three insurers in Wyoming announced they would be leaving the Wyoming market later this year. As a result, 381 doctors and 7 hospitals are going to have to find new insurance coverage. Of the two companies that are left, one of them is not writing new policies for emergency and trauma care physicians. So the few emergency room specialists we have in Wyoming soon will have only one company to choose from for their professional insurance.

These insurance company executives are not dumb people. Just as doctors are moving to States with better legal environments, so are the insurance companies.

As I mentioned, some have left Wyoming. People say, well, yes, there go those rich insurance companies. They are going to move somewhere else where they can make a lot more money. Did you know some of them are going broke? If the profit is all that prolific, why are some going broke?

One of the doctors in Wyoming was doing his calculation about whether to stay in business or not, whether to deliver babies anymore or not. He ran a calculation based on the rise in insurance premium costs he had, despite that he has not been sued at all. He found out $25 of each doctor visit goes to pay the insurance. If you are paying $100 for a doctor visit, $25 of that is going to pay for the insurance. The other $75 is not all profit either. It has to go to pay for the nurses, the supplies, the building--all of those things. But $25 of each visit goes to insurance.

I do not care which insurance companies are writing policies in my State, as long as there are some. But I do care when good doctors leave the State. Wyoming is a big State with a lot of small communities. In fact, people out here in the East cannot even comprehend the small communities we have. If you grew up in a small town, you probably got to know your family doctor pretty well. Doctors are part of the fabric of life in the small towns that dot the map of my State. It is not easy for them to pick up and leave, but that is what is happening. As hard as it is for the doctors to leave, it is even harder on the families they serve--the families who have grown comfortable with the care these doctors provide.

I commend Senators Gregg and Ensign and our majority leader, Dr. Frist, for trying again to pass a sensible short-term solution to this Nation's crisis. They have developed a bill that is focused on providing relief to the doctors who serve mothers and their babies, and the doctors who save lives in our Nation's emergency rooms.

Every day, thousands of patients depend on these doctors when it comes time to bring a new life into the world or to save a life that is already here.

I hope we can all agree to support this short-term solution that will maintain access to the services these doctors provide.

I have noticed something interesting during the debate on the issue of medical liability reform. While we have been debating the pros and cons of reform, no one is standing up to defend our current system of medical litigation. I have yet to hear a rousing defense of our medical litigation system. Even some of the lawyers in this body have agreed that frivolous lawsuits are a problem and that our medical liability system needs reform. Why aren't we hearing anyone defend the merits of our current medical litigation system? It is because it is indefensible. Our system does not work. It does not work for patients, nor does it work for their doctors.

The bill we are debating today is a good bill. It will help us stabilize insurance premiums and preserve access to critical medical services. But even the sponsors would probably admit it is a short-term measure that does not address the fundamental problems with our medical litigation system. This is an important bill, but it is just a tourniquet to stop the bleeding. It is not going to heal our broken system.

It reminds me of the town that lived on the edge of a cliff. The town had a tremendous problem because kids fell off of this cliff, and the fall killed a lot of them. They decided they needed to do something about it. After extensive meetings and committee work, they purchased the finest ambulance that could be found, and they put that ambulance at the base of the cliff. They hired the best EMTs they could get so the person could be loaded on to the ambulance and served while they got to the nearest hospital. Somebody then suggested: Why don't you just put a fence on the cliff. And they said: No, we don't do fences.

That is what we are doing with this medical litigation crisis. We are avoiding putting up the fence for the short-term solution and we are letting people fall off the cliff; then we are trying to provide them with the best possible service we can after they fall. What are we going to do when they use this fine ambulance and these great EMTs and they get to the hospital and there is no emergency room doctor? We need the fence and the emergency room doctors

too. This bill is designed to make sure there is medical liability insurance so the doctors can continue to operate.

We like to say that justice is blind. With respect to our medical litigation system, I would say that justice is absent and nowhere to be found.

Every Member of this body wants to make sure that someone who is truly injured by a medical error gets the compensation they deserve. But a number of studies have shown that many patients who were hurt by negligent actions received no compensation at all for their losses.

I have also seen studies that suggest that those who receive compensation end up with about 40 cents on every dollar in insurance premiums, once the lawyers' fees and their courtroom costs are subtracted. So the victim gets 40 cents on the dollar. Somebody else is getting the other 60 cents. I don't think that sounds fair.

What is more, studies have demonstrated the likelihood of a doctor or hospital being sued, and the result of such a suit, bears little relation to whether the doctor or hospital was at fault.

These facts led the congressionally chartered Institute of Medicine to issue a report in 2002. That report called upon Congress to create demonstration projects to encourage States to evaluate alternatives to current medical tort litigation.

In response, I have introduced a bill that would turn these expert recommendations into action. My bill, the Reliable Medical Justice Act, would authorize funding for States to create alternatives to current tort litigation. The funding would cover the costs of planning and initiating proposals. My bill would require participating States and the Federal Government to work together in evaluating the results of the alternatives as compared to the traditional tort litigation. This way all States and the Federal Government could learn from new approaches. We could see if there is not a way to get people fairly and justly compensated, compensated more quickly, and to actually receive the majority of the money, not just a small pittance.

The bill outlines some model approaches States could employ. For instance, one State might want to evaluate the idea of health care courts where judges with special expertise could hear medical cases. This concept is similar to the special courts we have for taxes, domestic violence, drugs, and other complex and emotional issues. That way we would get some fairness between cases. One person with the same kind of hurt would get compensated the same way, approximately, that somebody else with that same hurt had, not based on who picked the best lawyer or who picked the best injury--with fairness, quickness, and the victim receiving the money.

Another State might want to test an administrative approach. For instance, a State could set up classes of avoidable injuries and a schedule of compensation for them and then establish an administrative board to resolve claims related to those injuries. A scientific process of identifying preventable injuries and setting appropriate compensation for them might offer better results than the randomness of the court system.

Another State might want to provide health care providers and organizations with immunity from lawsuits if they make a timely offer to compensate an injured patient for his or her losses. This could give a health care provider who makes an honest mistake the chance to make amends financially with a patient without the provider fearing that their honesty would land them in a lawsuit.

The point of my bill is there are plenty of ideas for better ways to resolve medical disputes. One of the best ways Congress can help fix the flawed litigation system in the long term is by encouraging States to test alternatives and to learn from them.

As I speak, some States are already looking into alternatives. My State of Wyoming is one of them. Another is Massachusetts, where the Governor is working with Harvard University on an innovative project. Another is Florida, where the Governor's task force recommended projects for which my bill could provide support.

Believe it or not, both Newt Gingrich and the editors of the New York Times have endorsed this idea. If Newt Gingrich and the New York Times can agree on something, maybe we can find enough support for it in this Chamber as well.

I want to remind my colleagues that I support the Gregg-Ensign bill. It will provide some short-term relief for this medical liability crisis. We don't have time just for testing at the moment. We are losing the doctors who provide emergency care and the doctors who deliver babies. In my own State, several of the doctors have quit delivering babies because they can't afford the insurance. Others have had to cut back on the number of babies they deliver to be able to afford the insurance. That means ladies having babies are not able to get doctors with the necessary expertise.

We need short-term relief from the medical liability crisis, and I know many of my colleagues will join me in voting for it. But I know that some will vote against it. Regardless of whether you feel this is the right solution for the short term, let's acknowledge that our medical litigation system is failing us and that we must work together to find a long-term solution.

Medical lawsuits are supposed to compensate people fairly and deter future errors, but most patients don't get fair and timely compensation. There is nothing to show that lawsuits are deterring medical errors or making patients safer.

I urge Members to vote for the Gregg-Ensign bill. I also ask that Members take a serious look at S. 1518. My basic reason for introducing S. 1518 is that most patients don't want to sue their doctors. If their doctor made a mistake, they want an apology. They want to be compensated for their loss. They want the situation to be resolved quickly and fairly. I believe most physicians want the same thing. They want to apologize. They want to make amends financially.

If patients and their doctors want the same thing, what stands in the way? Our legal system, that is what.

Our legal system pits doctors against their patients. Doctors cannot apologize to their patients because admitting a mistake might end a doctor up in court, and probably would. As a result, doctors order more expensive tests and spend less time getting to know their patients-- anything to protect against a career-threatening lawsuit.

Patients feel this distrust, and they respond in kind. If a patient has a bad medical outcome, they assume their doctor was at fault, even if there was nothing their doctor would or could have done differently.

Sometimes bad outcomes happen in health care, and no one is at fault. But if a doctor doesn't feel free to say ``I am sorry'' when he or she makes a mistake, how will a patient know whether their doctor is at fault? It is hard to blame the patient for assuming the worst.

This is a fundamental flaw in the way we resolve medical disputes today. The courtroom stands between the people who matter most--the patient and the doctor. The courtroom ought to be the last resort for resolving disputes, not the only resort. Patients and doctors ought to be on the same side, working together; but fear of the legal system puts them in opposite corners and pits them against one another.

There has to be a better way. My bill would be another step toward replacing the medical lawsuits with a better and fairer system for compensating and protecting patients. But it is a long-term solution, and we do have a short-term solution, the Gregg-Ensign bill. I hope we can work together to find the long-term solution, but that we will do the short-term solution now.

Again, our debate now is whether we get to the debate the bill. Unless we have cloture tomorrow, we won't actually get to debate the short-term solution.

I want to recap and remind you that this bill doesn't limit economic damages. It will assure that we can have emergency care, that doctors who deliver babies can continue to deliver babies.

If you don't get care at all, how much pain and suffering will you have? How much injury can be caused if you cannot go to a doctor in your community and you have to travel extensively to do it?

This bill is a limit on noneconomic damages, similar to the limit in California, where the crisis has been averted. I ask my colleagues to support cloture on the motion to proceed so we can proceed to pass the Gregg-Ensign bill, so we will have a short-term solution to the medical liability crisis we face in our country, which keeps us from getting the medical treatment we need, when we need it.

I yield the floor.