Pregnancy and Trauma Care Access Protection Act of 2004

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 rise today to urge my colleagues to cosponsor S. 1709, the Security and Freedom Ensured Act, the SAFE Act, which Senator Larry Craig and I have introduced with several of our colleagues from both sides of the aisle.

The SAFE Act is a narrowly tailored bill that would revise several provisions of the USA PATRIOT Act. It would safeguard the rights of innocent Americans without impeding law enforcement's ability to fight terrorism. The SAFE Act is supported by a broad coalition of organizations and individuals from across the political spectrum.

I challenge any of my colleagues to find the broad base of political support for virtually any bill that we have found for the SAFE Act.

I voted for the PATRIOT Act. I believed then and I still believe that the act made many reasonable and necessary changes in the law. However, the PATRIOT Act contains several provisions that do not adequately protect innocent Americans from unwarranted Government surveillance. The FBI now has broad authority to obtain a ``John Doe'' roving wiretap which does not identify the person or place being tapped. The FBI has authority now to conduct sneak-and-peek searches and to seize personal records.

The PATRIOT Act was passed at a critical moment in the history of the United States. It was a moment of tragedy and fear. Now with more than 2 years of hindsight and experience, it is time to revisit this law.

I can recall--and I am sure all who followed this debate can remember--how we felt after September 11. Just a few steps away from this Chamber, I was meeting in a room with Senator Daschle and a group of Senators and we saw on television the images which every American has seared in their memory. Then someone suggested a bomb had gone off at the Pentagon. We gathered by the windows and looked down this beautiful Mall toward the Washington Monument and saw black smoke billowing across the Potomac, unaware at that moment another airplane had struck that building, killing many innocent Americans.

It was a time of great concern and great anxiety and great unity. The administration came to us and said to the Congress, Give us the tools to find the people responsible for this terrible American tragedy. Give us what we need to protect Americans and to fight the war on terrorism.

In a rare showing of bipartisan support, Democrats and Republicans came together and addressed some of the most difficult and complicated questions about Government authority and

individual freedom we have had to address in our history. I am proud to say in a short period of time there was a bipartisan consensus, a consensus which tried to work out the best way to meet the requirements of the administration and to make America safe.

Many of these provisions were worrisome. We were not certain whether we had gone too far in giving the Government more authority and Americans fewer freedoms than necessary. So we included in the PATRIOT Act sunset provisions. Basically, what that means is that over some period of time, a year or two, these provisions would expire and be subject to renewal and reapproval by Congress. Of course, at that point we would be forced to assess their impact.

Interestingly, since that day, from some quarters, the volume has grown in support of basically eliminating the sunset provisions and saying this will be permanent law and we will not revisit it. However, many have looked at the PATRIOT Act, including Senator Craig and myself, and feel there are four specific areas of the Act that should be amended by our SAFE Act. Senator Craig, a Republican, and myself, as a Democrat, reached across the partisan divide to work together on this bill. It is quite an unusual political marriage. Senator John Sununu, also a cosponsor, joked that when Senator Craig and Senator Durbin introduce a bill together, it proves one thing: One of them must not have read it.

Well, that is not true. We have both read the SAFE Act. Our cooperation on this piece of legislation speaks volumes about the need to make changes in the PATRIOT Act.

Some claim because we are at war, the American people want the Government to keep them safe, no matter what. I think they are wrong. The American people care very deeply about their freedoms. They are watching Congress carefully and they are concerned that perhaps in some areas we went too far in passing the PATRIOT Act. I have heard from a lot of my constituents. 275 communities in 39 states have passed resolutions expressing concern about the provisions of the PATRIOT Act. These communities represent close to 50 million Americans. Almost one out of every six Americans has, through their elected representatives in their communities, expressed some concern about the provisions of the PATRIOT Act.

Let me be very frank about the bill itself. The PATRIOT Act was over 130 pages long. It is very complicated. Most Americans have not read every word of it. Many Americans who may not be able to explain the exact details of the PATRIOT Act still are concerned it is restricting their freedoms unnecessarily.

Some argue this means we should not take the American people so seriously because they cannot cite specific sections of the bill. I disagree. There is no reason to dismiss these public concerns. And this is no excuse for inaction. The burden of proof is not on the American people when the Government seeks to take away their rights and liberties. The burden of proof is on the Government.

What is clear is the American people want us to strike a balance, give the FBI and law enforcement and intelligence agencies the powers they need to fight terrorism but also to protect American liberty. That is what the SAFE Act would do.

An unusual thing has occurred with the introduction of this bill. I have been on Capitol Hill for over two decades working in the House and in the Senate. I have never seen this happen before. The Bush administration announced with the introduction of the bill they would veto it. The bill has not been considered before a committee. It has not been subject to amendment in committee. It has not been debated in committee. It has not come to the floor of the House or the Senate, nor has it been subject to debate and amendment there. There is no final work product, only the initial offering by Senator Craig and myself.

Based on that and that alone, the Bush administration has said they are going to oppose this bill and they are going to veto this bill. I have never seen anything quite like that.

The Justice Department argues our bill would eliminate some PATRIOT Act powers and make it even more difficult to effectively fight terrorism. Frankly, these objections do not hold water. The SAFE Act neither repeals any provision of the PATRIOT Act nor amends pre-PATRIOT Act law. In fact, the SAFE Act retains the expanded powers created by the PATRIOT Act while placing important checks on these powers.

Senator Craig and I wrote a letter responding in detail to the Justice Department's objections to the bill and their threat to veto the bill, which has not even passed either the House or the Senate.

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

Mr. President, let me cut through some of the rhetoric and tell you what the SAFE Act does.

The SAFE Act would place reasonable checks on what are known as roving wiretaps. Typically, when the Government seeks a warrant authorizing a wiretap, its application must specify the individual and the phone that will be tapped. A recommendation on roving wiretaps came to us in the PATRIOT Act because of the obvious: There was a time and place in America when people had one telephone at work, one telephone at home, and if the Government sought to tap that telephone to find out what was going on, it was pretty obvious which telephone lines needed to be tapped. Now we live in a different world where people carry around phones in their pockets. People may have several phones.

So the Government asked for additional authority to focus on those who were engaged in telephone conversations on numerous different telephone lines. Roving wiretaps do not require the Government to specify the phone being tapped. They are designed to allow law enforcement to track targets that evade surveillance by frequently changing phones.

Before the PATRIOT Act, they were only permitted for criminal investigations, not intelligence investigations. The PATRIOT Act authorized the FBI to use roving wiretaps for intelligence purposes for the first time. I supported this. I thought it was a reasonable expansion of wiretap authority because it is important that intelligence investigators have that authority.

Unfortunately, the PATRIOT Act did not include the same limits on these powers that exist for criminal investigations. These limits would have protected innocent Americans from unjustified surveillance. It is a basic tenet of law that if you are going to tap a conversation, the Government has to be specific enough so as to protect innocent people. We should not allow the Government at any given time to impose a wiretap on a phone that anybody might use. The Government should be specific, protecting in the process the privacy of innocent people, while clearly targeting those with a wiretap who could be guilty of a crime or guilty of activities that are treasonous.

Under the PATRIOT Act, the FBI is not required to determine whether the target of the wiretap is physically present at the location being wiretapped before beginning the wiretap, as it is for criminal wiretaps. The ascertainment requirement, as it is known, ensures innocent Americans are not wiretapped unnecessarily, especially when the FBI wiretaps a public telephone.

The FBI is now permitted to obtain a John Doe roving wiretap for intelligence purposes, a sweeping authority never before authorized by Congress. A John Doe roving wiretap does not specify the person or the phone to be wiretapped. In other words, the FBI can obtain a wiretap without telling a court whom they want to wiretap and where they want to wiretap. This is a virtually limitless power.

The SAFE Act, which we have introduced, would continue to authorize roving wiretaps for intelligence purposes but would impose reasonable limits, the same limits that exist for criminal investigations. Law enforcement would be required to determine whether the target of the wiretap is physically present before beginning the wiretap. The FBI would not be able to obtain ``John Doe'' roving wiretaps. These protections would ensure that the Government does not wiretap innocent Americans.

Secondly, the SAFE Act would impose reasonable limits on sneak-and- peek searches. Sneak-and-peek searches are conducted secretly by the FBI with no notice to the target until some time after the search.

You have all seen the scene on television--maybe you are familiar with it from your community--where there is a knock on the door and a law enforcement official says: I have a warrant to search your home. Well, that is the usual course of events in criminal investigations. It is much different when it comes to sneak-and-peek searches.

The Justice Department argues that warrants for sneak-and-peek searches ``had been available for decades before the PATRIOT Act was passed,'' but such warrants were never authorized by Congress before the passage of the PATRIOT Act. Some courts permitted sneak-and-peek warrants in limited circumstances, although the Supreme Court has never ruled on their constitutionality.

In authorizing sneak-and-peek warrants, section 213 of the PATRIOT Act did not include checks and limitations on the power of the Government so as to protect innocent Americans. Courts have required the FBI to notify the target of the search within 7 days of the search. Section 213 of the PATRIOT Act, however, requires notice of the search only within ``a reasonable period,'' which is not defined. According to the Justice Department, this has resulted in delays of notice of up to 90 days, and of ``unspecified duration.''

Section 213 authorizes sneak-and-peek searches where a court finds that providing immediate notice of the search would have an adverse result. ``Adverse result'' is defined broadly. It includes circumstances ``seriously jeopardizing an investigation or unduly delaying a trial.'' This catch-all provision could arguably apply in almost every case.

Unlike many other PATRIOT Act provisions that give new surveillance powers to the FBI, the sneak-and-peek

authority does not sunset. It is permanent law.

According to a recent poll, 71 percent of Americans disapprove of the current sneak-and-peek provision in the PATRIOT Act. Last year, an overwhelming, bipartisan majority in the House of Representatives voted to repeal this section of the PATRIOT Act. The SAFE Act that we introduce would not go nearly that far. It would place reasonable limits on the FBI's ability to conduct sneak-and-peek searches, while still permitting broad use of this authority.

The SAFE Act would still authorize sneak-and-peek searches in a broad set of specific circumstances. However, it would eliminate the catch- all provision that allows sneak-and-peek searches in any circumstances.

The SAFE Act would require notification of a covert search within 7 days but would authorize a court to allow unlimited additional 7-day delays upon application by the Government. According to the Justice Department, ``the most common period of delay'' under section 213 is 7 days, so this limit that we establish is not unreasonable.

The SAFE Act would also sunset the sneak-and-peek authority, giving Congress an opportunity to take a hard look at a provision in the law that is so widely unpopular in the United States.

The third area has received a lot of attention, and it relates to the compelled production of library and personal records.

The SAFE Act would place reasonable limits on the FBI's authority to compel production of library and personal records. Before the PATRIOT Act, the FBI was authorized to seek a court order for the production of records from four types of businesses--common carriers, such as airlines and trains and buses; public accommodations, such as hotels and restaurants; storage facilities; and car rental companies. In order to obtain records, the FBI was required to convince a court it had reason to believe that the person to whom the records related was a terrorist or a spy.

Under section 215 of the PATRIOT Act, the FBI can compel production of ``any tangible things,'' not just records, from any entity, not just the four types of businesses previously covered. The FBI, under the PATRIOT Act, is only required to certify that the records are ``sought for'' a terrorism or intelligence investigation, a standard even lower than relevance. The FBI is not required to show that the documents relate to a suspected terrorist or spy.

Now, those who defend section 215 frequently claim the FBI must obtain court approval to compel production of records, but if you read section 215, you will see that the type of court approval which is authorized is a rubber stamp.

The PATRIOT Act gives the Government too much power to seize the personal records of innocent Americans who are not suspected of involvement in any terrorism or espionage. This could lead to broad fishing expeditions which waste scarce Government resources, are unlikely to produce useful information, and can infringe upon privacy rights.

The SAFE Act would retain the PATRIOT Act's expansion of the records provision to cover ``any tangible things,'' as I said earlier, and any entity. But it would reinstate the pre-PATRIOT Act standard for obtaining records, which requires individualized suspicion and increased judicial oversight. The FBI would be required to convince a court that it has reason to believe that the person to whom the records relate is a terrorist or a spy. This would protect innocent Americans and prevent fishing expeditions by the Government.

It is very important to note that in the more than 2 years since the passage of the PATRIOT Act, section 215--compelling records, as I have described--has never been used. If the authority has never been used during this time of great national concern and peril, it is difficult to understand how imposing some reasonable checks could harm the war on terrorism.

The fourth and last section of the SAFE Act relates to national security letters. The SAFE Act would impose reasonable limits on the issuance of these letters. An NSL, as they are known, is a document signed by an FBI agent requiring disclosure of financial, credit, or other personal information. It can be issued to a wire or electronic communication provider. The recipient of an NSL is subject to a gag order and cannot disclose the request to the individual whose records are being sought. An NSL does not require judicial or grand jury approval.

Before the PATRIOT Act, the FBI could issue such a letter to obtain records by certifying it had reason to believe that the person to whom the records relate is a terrorist or spy. The approval of FBI headquarters was required.

Section 505 of the PATRIOT Act allows the FBI to issue a national security letter by certifying that the records are ``sought for'' a terrorism or intelligence investigation, regardless of whether the target is a suspect. FBI headquarters approval is no longer required.

Unlike many other surveillance-related PATRIOT Act provisions, this expanded NSL authority does not sunset under the law of the PATRIOT Act.

The SAFE Act would retain the PATRIOT Act's lower standard for the issuance of NSLs and its delegation of issuing authority to FBI field offices.

It would simply clarify that a library is not a ``wire or communication service provider,'' which, from the plain meaning of the words, it is not. The FBI could still obtain information regarding e- mails and other communications originating from library computers by issuing a national security letter to the library's wire or communication service provider.

The SAFE Act would simply ensure that the FBI issues the national security letter to the service provider, which is the appropriate recipient, rather than a community library, which is not equipped to respond to such a request.

We would also sunset this NSL authority, giving Congress another opportunity to take a look at it.

We have the responsibility to give the Government the power it needs to keep us safe, but at the same time we have a responsibility to the Constitution, which we have all sworn to uphold and defend, to zealously protect the personal freedoms and liberties of American citizens.

Geoffrey Stone, a professor and former dean at the University of Chicago Law School, made this observation:

In time of war . . . we respond too harshly in our

restriction of civil liberties, and then, later, regret our

behavior. It is, of course, much easier to look back on past

crises and find our predecessors wanting, than it is to make

wise judgments when we ourselves are in the eye of the storm.

But that challenge now falls to us.

We must meet this challenge head on. As we reflect on the course of history, there has hardly been a time in the history of the Nation when we faced great threats to our safety and security when the Government did not overreach.

The greatest President, I think, who ever served us, Abraham Lincoln, from my State of Illinois, during the course of the Civil War, suspended the writ of habeas corpus, basically gathering into prison suspects without any charges. It was clearly in violation of the language of the Constitution. It was a power he assumed as Commander In Chief, and many have questioned it in the years that have followed.

During World War I, when there was real concern about outside threats to our country, we established the Alien and Sedition Acts, laws passed by Congress and signed by the President which, on reflection, went too far.

In World War II, we had the Japanese internment camps. We took perfectly innocent Japanese Americans, simply because of their ancestry, and put them in these settlement camps for lengthy periods of time, even while the children would leave the camps to serve in the Armed Forces.

During the cold war, a war that went on for decades and cost this Nation billions of dollars and created great anxiety, the McCarthy hearings and the questions of patriotism that were raised indicate that again we had gone entirely too far. The list continues. Sadly, it continues when we reflect on what we have done since September 11.

There is always a tension in our society between security and freedom. Those who want more security often argue that the Government needs more power and more authority, and individuals must give up those freedoms. Many of us believe that in surrendering

our freedoms, we are surrendering our heritage to the terrorists. The freedoms which were so carefully guarded and so zealously pursued by so many generations, freedoms which we have won with the lives of Americans in conflict time and time again, should be carefully guarded as well.

I hope we will understand that the burden of proof is not on individual Americans to come forward and prove to the Government they have a right to their freedoms and liberties. When the Government seeks to take away the freedom and liberty of an American citizen, it is the burden of the Government to prove that is necessary.

With the SAFE Act, Senator Craig and I have taken four very specific and discrete elements of the PATRIOT Act and we have said that by changing these, we will still keep America safe, but we will prevent intrusive Government activity into the privacy of individuals.

We can search the Constitution from the beginning to the end, through every amendment, and never see the word ``privacy'' in it, but courts have said repeatedly that that is what government should be all about-- protecting our privacy, only invading it in times when it is absolutely necessary to protect our safety in our community or our security as a Nation. The PATRIOT Act ended up being an allocation of power to the Government that went far beyond what was necessary for the security of our Nation and in fact invaded our rights and liberties.

We need to meet this challenge head on. It is possible to combat terrorism and to protect our freedoms. We can be safe and free. The SAFE Act demonstrates that. I urge my colleagues to join Senator Craig and myself as cosponsors.

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.

Mr. President, I ask unanimous consent that I be recognized to make a statement and, upon the conclusion of my statement, the Senate recess until 2:15 as provided under the previous order.

Mr. President, I am extremely disappointed that we have to be here today debating the FSC/ETI bill. The fact is, with America's economic health at risk, the bipartisan JOBS bill should have been debated and voted out of this body last month. Instead, attempts to move this jobs in manufacturing bill has been stymied. As a result, American manufacturing is not only being deprived of a competitive boost that it deserves at a time of no job creation in manufacturing but, in addition to that, U.S. exporters are stuck with a 6-percent European tax on our products going there.

This situation has festered for much too long. It has been several years since the World Trade Organization has ruled that the FSC/ETI regime did not meet our World Trade Organization obligations that this Senate and the other body agreed to a long time ago. Since then, we have known that. It is a fact. We have all known that unless we changed our current tax system, tariffs against our exports were looming.

To try to avoid these sanctions, Senator Baucus and I came together over a year ago and formed a bipartisan, bicameral working group to find a real, permanent solution to this problem.

The result is bipartisan. Remember that nothing gets done in the Senate that is not bipartisan. We have a jobs in manufacturing act before the Senate, and we will be voting on that today. This bill was passed out of my committee by a vote of 19 to 2. That means all Democrats voted for it. It provided a real and permanent solution to our FSC/ETI problems in a way which complies with our WTO obligations.

The bipartisan jobs in manufacturing act helps America's manufacturing sector. It helps us compete by giving an across-the-board 3-percentage point tax cut to all companies, large or small, that manufacture in the United States.

At a time when manufacturing is flat, this 3-percent tax cut can make a real difference to a company's bottom line perhaps bringing up enough capital and creating enough manufacturing growth to enable it or any company to hire in the manufacturing sector.

That is something every Senator would like to see. But because of political games and dilatory tactics by some in the Senate, this relief is not forthcoming.

I want Americans to understand that Senators on my side of the aisle are ready, willing, and able to provide a real shot in the arm to America's manufacturing sector. But after working so long in a bipartisan way, we are being blocked. We are blocked from providing the relief that American manufacturing deserves and needs.

In effect, this bill and the American manufacturing sector are being held hostage to Democratic demands to load this bipartisan legislation with a bunch of unrelated nongermane amendments. While some of these amendments are legitimate, others amount to nothing more than a wish list of political message amendments that have nothing to do with this very major piece of legislation. I, for one, am tired of watching us bide our time contemplating a wish list. American manufacturing needs solutions. It does not need a political wish list.

We have a good bipartisan bill before the Senate, a package that works for America's workers. But our plea for progress is met with nothing but demands for including one more item on some political wish list. You would think adults would make up their minds about what they want and that would be it.

It would be one thing if a political wish list did no harm, if it really didn't matter, or if the JOBS bill moved or not. But for manufacturing it does matter. Delay deprives American manufacturing of a much needed economic boost. Delay also inflicts real economic harm on innocent workers across the country.

The World Trade Organization has authorized the European Union to impose as much as $4 billion in tariffs in retaliation for our failure to bring our tax laws into compliance with international trade agreements that this body has already accepted--and accepted years ago.

Last month, on March 1, the European Union began implementing these sanctions by imposing an additional 5-percent tax on selected U.S. exports. This 5-percent Euro tax automatically increases by 1 percent for each month in which the United States of America remains out of compliance. Thus, when Members voted against stopping debate last month, the last time this bill was before this body, they contributed to a 20-percent increase in these tariffs because that additional 1 percent went into effect on April 1. Because of delay, then we have a 6-percent sales tax on our exports to Europe, making a lot of our businesses uncompetitive.

As you can see from this chart, these sanctions will continue to climb unless we act and act fast. In May, they rise another 1- percentage point to 7 percent and continue increasing until they reach a maximum of 17 percent in March of 2005. After that, then who knows what is going to happen. But by then we will have a lot of layoffs and people will wake up to the fact that harm is being done.

The European Union is not bound to cap retaliation at 17 percent. That is why I said: Who knows? In fact, they are scheduled to review the effectiveness of these retaliatory taxes at the end of 1 year. If the Europeans conclude that we are not in compliance, retaliation can escalate even further to a maximum of $4 billion a year.

If this sounds one sided, America wins more disputes in the World Trade Organization than we lose. We have won some major disputes against Europe. One time we won one about American beef being kept out of Europe. Europe still doesn't like to get some American beef. So we have imposed a tax on European exports coming into our country because that is the legal way of handling these disputes after it has been decided. I use that as an example. Europe has learned a lesson from the United States and they are doing to us what we have done to them. Why? Because in one case Europe did not want to abide by a decision, and in another case, we, up to now, have not abided by a decision. That is why we have the tax. It is quite obvious in most cases countries abide by these decisions. If they did not abide by these decisions, we would have chaos in international trade. We do not.

I make clear to the Members of this body: The effect of voting against stopping debate last month contributed strongly to raising tariffs on our exports by 2 percent. If cloture is not invoked this week, it is certain sanctions will escalate another percentage point, rising an overall level of 7 percent on selected U.S. exports. The core legislation should be very clear: A vote against stopping debate is a vote for higher taxes on our exports.

Which exporters will be hurt? All of them. No, not all of them, because the European Union was very careful in drawing up the sanctions list. In many cases, they chose to impose sanctions on U.S. exports that would most significantly feel the pain of the higher tax tariffs.

They are smart. Thus, highly competitive products with high profit margins are likely to find themselves on the list.

A press release from the American Forest and Paper Association dated March 2 of this year says this about European Union tariffs on wood product exports:

This is a devastating development for an industry that has

already closed more than 220 mills and laid off 120,000

workers since 1997.

Our industry works on such tight profit margins that even a

5 percent tariff will likely price many U.S. wood and paper

products out of our vital European markets. To have this

happen just as United States wood and paper products are

beginning to recover from a decade-long stump does

irreparable harm to our industry.

The European Union has chosen products they could get from other countries, hoping that the higher tariffs on U.S. exports will price our products out of the European market, to be replaced by similar products from other foreign competitors. It is important for Members of the Senate to understand the effect of pricing U.S. exports out of the European market is not just temporary. Longstanding business relationships can be permanently disrupted as European buyers scramble to replace cost-prohibited U.S. products. Even if our price may go down, those relationships that are made because of this uncompetitive atmosphere for American exporters may go on and we never gain back that market. Once a replacement from another country is found, there is no guarantee the European buyer will ever buy from the U.S. producer again. In the end, the lost European export market can be lost forever. If the Senate votes down this motion to stop debate this month, the cancer of sanctions will not only continue, it will spread.

On May 1 of this year the European Union will take in 10 more member countries. These countries will be bound by the same import-export regime as France and other European Union countries. Thus U.S. exports to those 10 countries will also face higher tariffs as they try to compete in these markets.

Now we will look at another chart that shows the list of countries that will be become part of the European Union starting May 1, 2004: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia. I hope Senators who vote against stopping debate today appreciate they are voting not only to raise the Euro tax on sensitive U.S. exports but are also voting to have that tax applied to an even broader array of countries.

Some people might argue these sanctions only hurt big companies. Do not be fooled. They are big, people might argue, and they can absorb a hit of higher tariffs. The fact is, approximately 90 percent of U.S. exporters in 2001 were small businesses with 100 employees or less. These small exporters can ill afford the sting of sanctions on their bottom line. Products impacted include jewelry, horses, dairy, fruit and vegetables, toys and games, glass and glassware, animal feed, leather goods and handbags, textile products, carpets, footwear, soap and candles, wood

products, and electric machinery. That is just a small list of 500 different products being hit. The American people are starting to take notice.

I read in part from a letter I received from the Carpet Rug Institute headquartered in Dalton, GA, stating:

The United States carpet industry produces 45 percent of

the world's carpet and is a $12 billion per year presence at

the mill.

The carpet industry is extremely competitive, both

domestically and worldwide, with profit margins cut razor

thin.

The potential of an increased duty in the form of a

punitive sanction may make the export of carpet and rug

products by any United States manufacturer in the European

Union market an economic impossibility. For the sake of the

collection of an excess tariff an entire industry may be made

to suffer.

And we are hearing:

Voices from across the country are asking relief from the

escalating Euro tax on our exports.

I will take a look at another letter signed by over 80 businesses and trade associations. These organizations that signed the letter want to emphasize the urgency of resolving the FSC/ETI export tax issue as soon as possible. Quick action on legislation is necessary to both comply with our WTO obligations and avoid or minimize retaliation against U.S. products.

. . . the European Union has increased the retaliatory

tariffs from 5 to 6 percent on as much as $4 billion per year

of American products.

These retaliatory tariffs are hurting the U.S. exports to

Europe at a time when they are just beginning to rebound in

the global economy and showing signs of renewed growth.

Moreover, the tariffs negatively impact American workers.

The letter continues:

We urge the Senate and House to pass FSC/ETI legislation

immediately and proceed to conference as soon as possible

thereafter.

Thank you . . . for doing your part to send FSC/ETI bill to

the President's desk without delay, thus minimizing the

economically devastating trade sanctions on U.S. products and

its impact on American workers who produce them.

These organizations span the entire Nation. This is not regional. Almost every State is going to be impacted by this vote this afternoon.

So let's go to the Northeast: the Virginia Forestry Association, the Associated Industries of Massachusetts, the Coalition of New England Companies for Trade, and the Greater Providence Chamber of Commerce.

From our part of the country, the Upper Midwest--the Presiding Officer is from Minnesota; I am from Iowa--we have the Detroit Regional Chamber of Commerce, the Minnesota Timber Producers Association, the Minnesota Agri-Growth Council, the Missouri Forest Products Association, and the Wisconsin Manufacturers and Commerce.

In the Pacific Northwest, we have the Pacific Coast Council of Custom Brokers and Freight Forwarders and the Softwood Export Council in the Pacific Northwest.

From the West, we have the Utah Manufacturers Association, the California Manufacturers and Technology Association, and the California Chamber of Commerce.

From the Plains States and the South, we have the Arkansas Forestry Association, the Louisiana Forestry Association, the Mississippi Forestry Association, and the Texas Forestry Association.

From the Southeast, we have the Alabama Forestry Association, the Puerto Rico Manufacturers Association, the Tennessee Chamber of Commerce and Industry, and the North Carolina Forestry Association.

So as you can see, the entire country is impacted by this European tax on our exports to that part of the world. Some of the nationally impacted associations include the Agriculture Retailers Association, the American Architectural Manufacturers Association, the American Cotton Shippers Council, the American Farm Bureau Federation, the American Iron and Steel Institute, the American Peanut Council, the American Soybean Association, the American Textile Manufacturers Institute, the Manufacturing Jewelers and Suppliers of America, the National Association of Manufacturers, the National Corn Growers Association, and the National Cotton Council. And that is just a partial list.

What communication to Members of Congress is all about is businesses crying out for relief--not for the delay that we have already had for 1 month.

Let's be clear about what is at stake. American jobs are at stake because American competitiveness is at stake.

A vote against stopping debate is a vote against tax relief for America's beleaguered manufacturing sector--tax relief that goes beyond nullifying this European tax.

A vote against stopping debate is a vote to prolong the pain across America. A vote against stopping debate is a vote to increase the European tax on American exporters yet more than the 6 percent already there. A vote against stopping debate is a vote to deprive America's small exporters--because 90 percent of our exporters are small businesses of 100 employees or less--continued access to the European market, and access they may never regain.

If my colleagues vote against stopping debate, they might as well be telling American manufacturing that the United States is closed for business; that if you want access to the European export markets, you might as well go overseas and do your business because Members of this Congress have refused to give these manufacturers the tools they need to compete.

There is an answer. Stop--stop playing political games; stop pushing political wish lists; stop jeopardizing economic recovery. Instead, start supporting the ending of debate; start bringing this bill to finality; support stopping debate and start enhancing the economic recovery that is just around the corner in America's manufacturing sector if we do not snuff it out; support stopping debate and start the process that eliminates the European tax on our exports.

The choice is clear: Vote no, and you might make a few political points but I think just for a short period of time. As this Euro-tax goes up, people are laid off and you lose political points. Vote yes to stop debate and you are guaranteed to get economic progress.

So let's put aside our political games. Stop this debate. Move to finality. Consider legitimate amendments. That is what this place is all about--legitimate amendments, not just making political comment.

I summarize this way: This is like moving the goalposts. We have heard a lot from the Democratic leadership which claims they support this bipartisan bill. That is what we are hearing. I know that is what they are telling their constituents as well. I am afraid the actions of the Democratic leadership speak louder than their words. My sense is that there is a political priority to deny President Bush an opportunity to sign a bipartisan bill either this summer or this fall. It seems that the objective is to prevent that Rose Garden signing ceremony from occurring.

Of course, the victims of this strategy happen to be those companies and those workers who are hit by this Euro-tax as it ratchets up. I hope I am wrong. But the record gives me pause. I would hope that those on the other side would put the interests of firms and workers in their States above that of partisan Presidential campaign strategy. If you look at the record, you will see dramatic movements in terms of the demands of people on the other side of the aisle to promote their political message amendments, most often nongermane.

This chart draws from a favorite activity that we have in the Midwest, for example, every time Iowa plays Minnesota, and I am talking, obviously, about football. This jobs in manufacturing bill is near the Senate goal line. Unfortunately, it seems politics is driving the other side to move the goalposts.

When we came into session in January, Senator Frist was criticized by the Democratic leadership for not moving right away this very bill, the jobs in manufacturing bill. At that time, the goalpost was clear--just 5 yards away. Then, after we were finished with the highway bill and a couple other bills, Senator Frist attempted to go to this jobs in manufacturing bill.

Much to my surprise, we were ambushed by the leadership of the other side with unrelated amendments. I thought I had an understanding with the floor manager we were going to do amendments first that were related to the bill and then move to other amendments. That agreement was not carried out. That event caught me off guard. So a second goalpost appeared. It was the overtime amendment of my colleague from Iowa.

Now, it did not matter that we had voted on it previously. It did not matter that the amendment dealt with a proposed--not final but a proposed--Department of Labor regulation. None of that seemed to matter. That amendment was, and is still, a show-stopper to this bipartisan bill. So we are at the second goalpost, as it has been moved.

The demand of the leadership of the other side keeps changing. We were talking about just a single-digit list of amendments and, for the most part, hopefully germane amendments. We are not talking about that anymore. Now, since it looks like an overtime pay vote may be in the picture, there is a goalpost yet further away.

For the first time we are hearing of other amendments--not Finance Committee jurisdiction amendments--such as an increase in the minimum wage, that are new showstoppers.

You can't finish this bill, we are told, even though we are told the substance is great. Nobody seems to disagree on the substance of this. So why can't we get a bill to the President? Even though we don't disagree on the substance, there is still a new goalpost. Heaven help us how all that turns out.

There is a final goalpost way out there; that is, getting to conference. We may move through all the goalposts, but then we may be blocked on whether we get to conference. I hope I am proven wrong in a few minutes as we vote on this measure.

If we can't get cooperation from the other side, we have a couple alternatives: One, to go on with other business; two, to look at reconciliation in late spring. I don't want to go with either of those options because we can finish this bill now. There is always a time when the Senate has goodwill between the two parties represented. That goodwill hopefully will surface just as cream surfaces on milk.

Now it is time to get the job done. I hope we can pass this FSC/ETI legislation. It is bipartisan. That is the only way you get things done in the Senate. Consequently, because it is bipartisan, we ought to get it done. And because it is bipartisan, it deserves better treatment than it has received thus far.

I yield the floor.

Mr. President, I thank the chairman of the HELP Committee for the work he has done to bring this legislation to the floor of the Senate, trying to get an up-or-down vote, or just trying to proceed to debate this bill.

For those people around the country who do not understand the way the Senate works, we have to have 60 votes to proceed to the bill on reforming our medical liability system. We have to have 60 votes to go to the bill, to amend it, and then to vote it up or down. It is a shame the Democratic side of the aisle is not even allowing us to have an up- or-down vote on this incredibly important legislation.

Today 19 States across the United States are in full-blown crisis, according to the American Medical Association, regarding medical liability. Only six States are stable because of the reforms they have in place. OB/GYNs, emergency room physicians, and trauma doctors are the hardest hit, but they are not the only ones. From 1982 to 1998, the average premium for OB/GYNs rose 167 percent. In 2002, the average premium for emergency room physicians rose by 56 percent. In Las Vegas, OB/GYNs have seen a 300- to 400-percent increase in their premiums as of late. Three years ago they paid around $40,000 a year; now they pay upwards of $200,000 a year.

To help curb the cost, OB/GYNs are limiting the number of babies they deliver, and some of them are no longer delivering babies at all and are only practicing gynecology. In fact, many of them are leaving our State altogether.

This crisis has now grown to affect our students in medical schools across the country. Nevada is really suffering because it is the fastest growing State in the country. Medical students are now avoiding high-risk specialties. Nevada's school of medicine had the lowest number of students entering obstetrics it has had since 1999. That number has decreased every year since 2000.

Nationally, half of all medical students indicate the liability crisis is a factor in their choice of specialty. For osteopathic students, the numbers are even worse. Eighty-two percent say cost and availability of insurance will influence their specialty choice. Eighty-six percent say cost and availability of insurance will determine where in the country they practice. With doctors leaving practice and no more entering the field, patients are suffering and will suffer more in the future.

Patients are what this debate is all about--not doctors or lawyers. Patients can't find access to care when they need it. For example, Nevada's only level I trauma center closed for 10 days in 2002. The center serves trauma victims over 10,000 square miles--in Nevada, parts of California, Utah, and Arizona. In 2002, this trauma center cared for 11,600 patients. Mainly, these patients suffer the most traumatic injuries such as severe car accidents, knife and gunshot wounds, and brain and spinal cord trauma.

This closure cost Jim Lawson his life on July 4, 2002. We have a picture of Jim. Jim lived in Las Vegas, and was just 1 month shy of his 60th birthday. He had recently returned from visiting his daughter in California. When he returned, he was injured in a severe car accident. Jim should have been taken to the university medical center's level I trauma center, but it was closed. Instead, Jim was taken to another emergency room to be stabilized and transferred to Salt Lake City's trauma center. Tragically, Jim never made it that far. He died that day due to cardiac arrest caused by blunt force from physical trauma.

Why was Nevada's only level I trauma center closed? Simple fact: There were not enough doctors available to provide care. There were not enough doctors because of skyrocketing medical liability premiums.

How do we know it was because of that reason? It is very simple. It reopened a week later when the State put the level I trauma center under its umbrella coverage where the maximum the State could be sued for is $50,000. The legislation we have before us caps non-economic damages at much more--$250,000--but allows recovery of economic damages to be unlimited. Remember, economic damages are for lost wages, medical bills, etc.

We have cases in California, where a law is in place that is almost identical to the legislation we are talking about today, where patients have been awarded millions of dollars in compensation. It is the out- of-control jury awards across the country that are dramatically raising our premiums.

I want to emphasize again, the level one trauma center in Las Vegas was reopened because the State of Nevada took it under its wing and said: We will protect any of the doctors who work there with a maximum liability coverage of $50,000 in damages.

Opponents on the other side argue that injured patients won't get what

they need financially if malpractice occurs as determined by a jury. Let's remember that patients can recover damages in three different ways under our bill, and in only one case, non-economic damages, are we placing a distinct limit. Economic damages would be unlimited and punitive damages are available in the cases of gross malpractice. This bill would create strong medical liability reform where patients can actually get the kind of compensation they need and they can get it sooner because they can navigate through the courts much faster. Undoubtedly, the courts will work a lot more quickly because there won't be so many frivolous cases clogging up the civil justice system.

The cases we hear about, whether it is in the trauma centers or because there are no OB/GYNs available, are tragic. It is the patients who are being hurt every day. The other side says they are trying to stand up for the little guy--the little guy who gets hurt because of medical malpractice. And we definitely should stand up for those people because there are some very tragic cases.

Without a doubt they deserve just compensation. Unfortunately, our system has swung out of balance. It is too easy to sue these days because the threat of a lawsuit and the cost of that lawsuit is so exorbitant that medical providers and their insurance companies often settle out of court. It is an absolute fact that providers and their insurers settle even in those cases they probably could win just because of the enormous expense and time.

Adding to this broken cycle are these so-called ``professional witnesses,'' for lack of a better term. When I say professional witnesses, I mean physicians who no longer are practicing. Some have practiced a little bit, but they all of a sudden become experts in fields they never practiced in. Our legislation says if someone is testifying as an expert, they need to be an expert in the field they are testifying about. In other words, you don't want somebody who is a family doctor testifying in the case that involves a pediatric neurosurgeon. You want somebody who is a specialist in pediatric neurosurgery and knows about the ins and outs of that specific practice of medicine.

Again, this legislation would allow those people who actually have had medical malpractice inflicted upon them to get through the court system faster, so maybe the ones who are truly hurt will get the compensation before they die. For many today, because the courts are so clogged up, it takes 6 to 10 years to get through the court system, and many of them die before they ever get compensation. Talk about a tragedy. So if people really want to stand up for the little guy and they want to say I want to fight for the little guy--if they want to fight for the person who actually gets hurt, let's pass legislation that allows the cases to get through the courts in a much more expeditious fashion.

Another benefit of this bill is most, if not all, of the reforms it contains will help lower the cost of health insurance in this country for everybody, so hopefully we will have more people with health insurance. If the costs are lower, more people can afford it, and we will have fewer uninsured in this country.

How many more doctors do we have to lose in Nevada and other States? Do we really want people who are not as qualified to go into some of these specialties? Do we want to start scraping the bottom of the barrel, or do we want the best and the brightest to go into these specialty fields? They always have in the past. Now they look out there and say, you know what, I am not going to be able to afford to practice. Why would the best and the brightest go into it when they say, I am going to go to 4 years undergraduate, 4 years medical school, and then I am going to do anywhere from 3 to 8 years, depending on the postgraduate training that is required in the specialty field, before I start making decent money. What people don't realize is even after these students graduate from medical school, they might make $30,000 to $40,000 doing ``slave labor,'' working 100 hours a week, while they are learning their particular field of study.

We want the best people who are willing to sacrifice all of those years and all of those hours of hard work to be able to go into those fields. At the end, yes, they should be rewarded economically, just as anyone who works hard toward entering a specific field of work. But many of them will not do it for the simple fact they are not going to be able to afford the medical liability premiums. That is why it is so critical we pass medical liability reform.

Today, we have before us a bill we have limited to provide relief to two specialties. It only covers OB/GYNs and professionals involved in the practice of emergency medicine and/or trauma medicine. We have limited it to highlight two of the most high-risk and the most severely affected areas in our health care system today.

If you don't like portions of the bill and want to change it, fine. Let's have a healthy debate and amend the bill. Let's take amendments one at a time and amend the bill and then come out with a product that will actually fix the problems we have in this country. Right now the other side, the Democratic side of the aisle--it almost boggles my mind some of the points they argue against this bill--but they won't even let us have the bill brought to the floor where it can be amended. They won't let us have a fair debate where we can amend this bill. Sadly, they are obstructionists on so many pieces of legislation this year. But at least on the other pieces of legislation that they are obstructing they are not costing lives. On this legislation, they are costing lives. Unfortunately, more and more lives will be lost in the future. When there are not enough doctors to treat patients, it costs lives.

The providers covered in this bill--OBGYNs, ER and trauma doctors--if they are not available to care for patients, people are going to die. People are going to end up in a situation like Jim Lawson's who, as we showed earlier, needed the kind of specialty care only a trauma center can provide. Right now, the doctors are not there to be able to give the patients the kind of care they need. We have to ask ourselves, what if it were one of our loved ones--not ourselves, but one of our loved ones? For instance, down in Florida, Dr. Frank Schwerin's son was injured. He is an internist. His son is a 4-year-old named Craig. Craig struck his head on the side of a swimming pool. Within minutes, he became lethargic and began to vomit. He was rushed to North Collier emergency room. The ER physician paged the neurosurgeon on call. Unfortunately, neurosurgeons in Collier County were not able to treat pediatric patients because they were too high risk. The nearest pediatric neurosurgeon was 150 miles away. In neurological trauma, every minute counts. After an hour or so of receiving what care he could, Craig was eventually stabilized. But not every child is that lucky. No parent should have to go through that wondering, does my child have the best care they can get, simply because the specialist left their area because the medical liability premiums were too expensive. I cannot tell you how many doctors who are in this situation. By the way, it is not only doctors. We are also talking nurse-midwives, EMTs, emergency and fire personnel, you name it. Throughout the health care provider system, people are affected by the out-of-control medical liability costs. But the physicians I have talked to, anecdotally, in story after story, say people were sued for the first time in their life in a case they may have had very little to do with. They walked in, gave only a consultation to another physician who was the primary doctor on the case, and then they are sued because malpractice was committed somewhere down the line by someone else on the case. Even though it had nothing to do with them, they now have to spend literally thousands of dollars defending themselves.

The system is broken. It is out of control. Our system of justice swings like a pendulum. Right now, it has swung too far in one way--in the trial lawyer's favor. We have to bring it back in favor of the patients. The patients need to come first. That is what we are talking about today in this legislation--putting patients first instead of trial lawyers.

Mr. President, I will conclude with this. I want to talk about the States that have enacted reforms versus the States that have not. I wish to give a couple of examples to put this in dollar terms so people can get their arms around it.

This chart explains it very clearly. First of all, this is an example of internal medicine, general surgery, and OB/GYN. I will focus on the OB/GYNs to keep it simple because they are affected directly by this legislation.

L.A., Denver, New York, Las Vegas, Chicago, and Miami are listed on this chart. The population shares are relatively similar. This shows the medical liability premiums in the various cities. This is a 2002 survey. Mind you, the cities with the problems are in much worse shape in 2004 than they were in 2002.

An OB/GYN pays about $55,000 a year in L.A., and around $31,000 a year in Denver. California and Colorado are two States that have had good medical liability reforms passed at the State level, and these reforms have been in place for several years. If we go to New York, Las Vegas, Chicago, or Miami--take your pick--none of these States have good medical liability reform passed. In New York, they are paying $90,000; $108,000 in Las Vegas. That number is way low. At a minimum it is $140,000. Chicago, $102,000, and Miami is over $200,000 a year. That is why doctors are leaving their practices.

One can say doctors make so much money that they can afford this. The average OB/GYN in Las Vegas makes around $200,000 a year. When $108,000 is going for medical liability coverage, you can see there is not very much left for the provider. You raise this up to $140,000, $150,000, $160,000, as many are now experiencing in my state, and there is not a lot of room left. I would also mention that with the way these doctors are getting paid at fixed rates, through managed care, Medicaid, and the like, there is not a lot of room left to afford rising premium rates. The fact is they are leaving the practice or they are limiting the amount of babies they deliver simply because they cannot afford to deliver babies. In the fastest growing cities and metro areas, that is unacceptable.

This chart shows California versus U.S. premiums from 1976 to 2000. California has the model legislation we all look at. These are the premiums. This is California, the blue line, which is very stable. There has been an increase of about 167 percent over that time, a little more than inflation, but pretty close. Look at it for the rest of the country: 505 percent.

Is medical liability reform working in California? I think the answer is pretty obvious that it is. We need a national solution. We need to say to the trial lawyers: Listen, we respect the fact you went to law school and you want to make a lot of money, but I think the system has been abused enough. It is time to put the patients first.

Let's vote for cloture today. Let's get the 60 votes needed to at least go to debate on the bill. And if my colleagues do not like the provisions of the bill, let's amend it. Let's have up-or-down votes on amendments. Let's get to final passage where we can actually correct what is wrong with the health care system in the United States by eliminating abusive lawsuits, outrageous and unwarranted jury awards, and out-of-control medical liability premiums.

I yield the floor and reserve the remainder of our time.

Mr. President, today's vote on S. 2207 is a test of the Senate's character. In the past, this body has had the courage to reject the simplistic and ineffective responses proposed by those who contend that the only way to help doctors is to further hurt seriously injured patients. Unfortunately, as we saw in the Patients' Bill of Rights debate, the Bush administration and congressional Republicans are again advocating a policy which will benefit neither doctors nor patients, only insurance companies. Caps on compensatory damages and other extreme tort reforms are not only unfair to the victims of malpractice, they do not result in a reduction of malpractice insurance premiums.

Once more, we must stand resolute.

We must not sacrifice the fundamental legal rights of seriously injured patients on the altar of insurance company profits. We must not surrender our most vulnerable citizens to the avarice of these companies.

This bill contains the same arbitrary and unreasonable provisions which were decisively rejected by a bipartisan majority of the Senate twice within the past year. The only difference is that the bill rejected in February took basic rights away only from women and newborn babies who are the victims of negligent obstetric and gynecological care, while this bill includes victims of negligent emergency trauma care as well. Broadening the bill does not make it more acceptable. On the contrary, it only expands the unfairness to an additional category of malpractice victims.

This legislation would deprive seriously injured patients of the right to recover fair compensation for their injuries by placing arbitrary caps on compensation for noneconomic loss in all obstetrical and gynecological cases and in all emergency and trauma care cases. These caps only serve to hurt those patients who have suffered the most severe, life-altering injuries and who have proven their cases in court.

They are babies who suffered serious brain injuries at birth and will never be able to lead normal lives. They are the women who lost organs, reproductive capacity, and in some cases even years of life. They are the children who are permanently injured when emergency room doctors fail to provide proper medical treatment after an accident. These are life-altering conditions. It would be terribly wrong to take their rights away. The Republicans talk about deterring frivolous cases, but caps by their nature apply only to the most serious cases which have been proven in court. These badly injured patients are the last ones we should be depriving of fair compensation.

A person with a severe injury is not made whole merely by receiving reimbursement for medical bills and lost wages. Noneconomic damages compensate victims for the very real, though not easily quantifiable, loss in quality of life that results from a serious, permanent injury. It is absurd to suggest that $250,000 is fair compensation for a child who is severely brain injured at birth and, as a result, can never participate in the normal activities of day to day living; or for a woman who lost her reproductive capacity because of an OB/GYN's malpractice; or for a patient who suffered a devastating heart attack because a negligent emergency room doctor ignored his severe chest pains and sent him home.

This is not a better bill because it applies only to patients injured by malpractice in three medical categories. That just makes it even more arbitrary.

The entire premise of this bill is both false and offensive. Our Republican colleagues claim that women and their babies must sacrifice their fundamental legal rights in order to preserve access to OB/GYN care, and that those seeking care in a hospital emergency room must leave their rights at the door. The very idea is outrageous. For those locales--mostly in sparsely populated areas--where the availability of specialists is a problem, there are far less drastic ways to solve it.

This bill is based on the false premise that the availability of OB/ GYN and trauma care physicians depends on the enactment of draconian tort reforms. If that were accurate, States that have already enacted damage caps would have a higher number of OB/GYNs providing care. However, there is in fact no correlation. States without caps actually have 28.4 OB/GYNs per 100,000 women, while States with caps have 25.2 OB/GYNs per 100,000 women.

Nor is there any correlation between access to emergency trauma care and whether a State has enacted restrictions on the compensation that malpractice victims can receive. In fact, 7 of the top 10 States identified in the Journal of the American Medical Association, March 26, 2003, as having the highest number of level I and II trauma centers per million residents do not cap damages in malpractice cases. Five of the States with the best availability of trauma centers have actually been listed as malpractice ``crisis'' States by the AMA. That is worth repeating; 7 of the 10 States whose residents have the greatest access to emergency care do not limit damages. In contrast, four States that the AMA identifies as ``doing OK,'' having satisfactory tort laws, fail to have an adequate number of trauma centers to serve their residents.

And that is only one of many fallacies in this bill. If the issue is truly access to OB/GYN and emergency care doctors, why has this bill been written to shield from accountability HMOs that deny needed medical care to a woman suffering serious complications with her pregnancy or to a child in need of emergency care after a serious accident, a pharmaceutical company that fails to warn of the dangerous side effects caused by its new drug, and a manufacturer that markets a medical device which can seriously injure the user. Who are the authors of this legislation really trying to protect?

In reality, this legislation is designed to shield the entire health care industry from basic accountability for the care it provides to women and their infant children and to patients in need of emergency treatment. It is the first step toward broader legislation which would shield the industry from accountability in all health care decisions involving all patients. While those across the aisle like to talk about doctors, the real beneficiaries will be insurance companies and large health care corporations. This legislation would enrich them at the expense of the most seriously injured patients; whose entire lives have been devastated by medical neglect and corporate abuse.

This legislation is attempting to use the sympathetic family doctor as a Trojan horse concealing an enormous array of special legal privileges for every corporation which makes a health care product, provides a health care service, or insures the payment of a medical bill. Every provision of this bill is carefully designed to take existing rights away from those who have been harmed by medical neglect and corporate greed.

In addition to imposing caps, this legislation would place other major restrictions on seriously injured patients seeking to recover fair compensation. At every stage of the judicial process, it would change long-established judicial rules to disadvantage patients and shield defendants from the consequences of their actions.

When will the Republican Party start worrying about injured patients and

stop trying to shield big business from the consequences of its wrongdoing?

If we were to arbitrarily restrict the rights of seriously injured patients as the sponsors of this legislation propose, what benefits would result? Certainly less accountability for health care providers will never improve the quality of health care. It will not even result in less costly care. The cost of medical malpractice premiums constitutes less than two-thirds of 1 percent, 0.66 percent, of the Nation's health care expenditures each year. Malpractice premiums are not the cause of the high rate of medical inflation.

In this era of managed care and cost controls, it is ludicrous to suggest that the major problem facing American health care is ``defensive medicine.'' The problem is not ``too much health care,'' it is ``too little'' quality health care.

A CBO report released in January of this year rejected claims being made about the high cost of ``defensive medicine''. Their analysis ``found no evidence that restrictions on tort liability reduce medical spending.'' There was ``no statistically significant difference in per capita health care spending between States with and without limits on malpractice torts.''

The White House and other supporters of caps have argued that restricting an injured patient's right to recover fair compensation will reduce malpractice premiums. But there is scant evidence to support their claim. In fact, there is substantial evidence to refute it. In the past few years, there have been dramatic increases in the cost of medical malpractice insurance in States that already have damage caps and other restrictive tort reforms on the statute books, as well as in States that do not. No substantial increase in the number or size of malpractice judgments has suddenly occurred which would justify the enormous increase in premiums which many doctors are being forced to pay. The reason for sky-high premiums cannot be found in the courtroom.

Caps are not only unfair to patients, they are also an ineffective way to control medical malpractice premiums. Comprehensive national studies show that medical malpractice premiums are not significantly lower on average in States that have enacted damage caps and other restrictions on patient rights than in States without these restrictions. Insurance companies are merely pocketing the dollars which patients no longer receive when ``tort reform'' is enacted.

Let's look at the facts. Based on data from the Medical Liability Monitor on all 50 States, the average liability premium in 2003 for doctors practicing in States without caps on malpractice damages, $35,016, was less than the average premium for doctors practicing in States with caps, $40,381. There are many reasons why insurance rates vary substantially from State to State. This data demonstrates that it is not a State's tort reform laws which determine the rates. Caps do not make a significant difference in the malpractice premiums which doctors pay. This is borne out by a comparison of premium levels for a range of medical specialties.

Focusing on premiums paid by OB/GYN physicians, the evidence is the same. Data from the Medical Liability Monitor shows that the average liability premium for OB/GYNs in 2003 was actually slightly higher in States with caps of damages, $63,278, than in States without caps, $59,224. It also showed that the rate of increase last year was higher in States with caps, 17.1 percent, than it was in States without caps, 16.6 percent.

This evidence clearly demonstrates that capping malpractice damages does not benefit the doctors it purports to help. Their rates remain virtually the same. It only helps the insurance companies earn even bigger profits. As BusinessWeek magazine concluded after reviewing the data, ``the statistical case for caps is flimsy,'' March 3, 2003 issue.

If a Federal cap on noneconomic compensatory damages were to pass, it would sacrifice fair compensation for injured patients in a vain attempt to reduce medical malpractice premiums. Doctors will not get the relief they are seeking. Only the insurance companies, which created the recent market instability, will benefit.

Insurance industry practices are responsible for the sudden dramatic premium increases which have occurred in some States in the past few years. The explanation for these premium spikes can be found not in legislative halls or in courtrooms, but in the boardrooms of the insurance companies themselves.

Insurers make much of their money from investment income. Interest earned on premium dollars is particularly important in medical malpractice insurance because there is a much longer period of time between receipt of the premium and payment of the claim than in most lines of casualty insurance. The industry creates a ``malpractice crisis'' whenever its investments do poorly. The combination of a sharp decline in the equity markets and record low interest rates in recent years is the reason for the sharp increase in medical malpractice insurance premiums. What we are witnessing is not new. The industry has engaged in this pattern of behavior repeatedly over the last 30 years.

Last year, Weiss Ratings, Inc., a nationally recognized financial analyst conducted an in-depth examination of the impact of capping damages in medical malpractice cases. Their conclusions sharply contradict the assumptions on which this legislation is based. Weiss found that capping damages does reduce the amount of money that malpractice insurance companies pay out to injured patients. However, those savings are not passed on to doctors in lower premiums.

Between 1991 and 2002, the Weiss analysis shows that premiums rose by substantially more in the States with damage caps than in the States without caps. The 12-year increase in the annual malpractice premium was 48.2 percent in the States that had caps, and only 35.9 percent in the States that had no caps. In the words of the report: ``On average, doctors in States with caps actually suffered a significantly larger increase than doctors in States without caps . . . In short, the results clearly invalidate the expectations of cap proponents.''

Doctors, especially those in high risk specialties, whose malpractice premiums have increased dramatically over the past few years do deserve premium relief. That relief will only come as the result of tougher regulation of the insurance industry. When insurance companies lose money on their investments, they should not be able to recover those losses from the doctors they insure. Unfortunately, that is what is happening now.

Doctors and patients are both victims of the insurance industry. Excess profits from the boom years should be used to keep premiums stable when investment earnings drop. However, the insurance industry will never do that voluntarily. Only by recognizing the real problem can we begin to structure an effective solution that will bring an end to unreasonably high medical malpractice premiums.

There are specific changes in the law which should be made to address the abusive manner in which medical malpractice insurers operate. The first and most important would be to subject the insurance industry to the Nation's antitrust laws. It is the only major industry in America where corporations are free to conspire to fix prices, withhold and restrict coverage, and engage in a myriad of other anticompetitive actions. A medical malpractice ``crisis'' does not just happen. It is the result of insurance industry schemes to raise premiums and to increase profits by forcing antipatient changes in the tort law. I have introduced, with Senator Leahy, legislation which will at long last require the insurance industry to abide by the same rules of fair competition as other businesses. Secondly, we need stronger insurance regulations which will require malpractice insurers to set aside a portion of the windfall profits they earn from their investment of premium dollars in the boom years to cover part of the cost of paying claims in lean years. This would smooth out the extremes in the insurance cycle which have been so brutal for doctors. Thirdly, to address the immediate crisis that some doctors in high risk specialties are currently facing, we should provide temporary premium relief. This is particularly important for doctors who are providing care to underserved populations in rural and inner city areas.

Unlike the harsh and ineffective proposals in S. 2207, these are real solutions which will help physicians without further harming seriously injured patients. Unfortunately, the Republican leadership continues to protect their allies in the insurance industry and refuses to consider real solutions to the malpractice premium crisis.

This legislation, S. 2207, is not a serious attempt to address a significant problem being faced by physicians in some States. It is the product of a party caucus rather than the bipartisan deliberations of a Senate committee. It was designed to score political points, not to achieve the bipartisan consensus which is needed to enact major legislation. For that reason, it does not deserve to be taken seriously by the Senate.

Mr. President, what is the parliamentary situation? Are we back on the motion to proceed?

Mr. President, today I rise to speak in support of S. 2207, the Pregnancy and Trauma Care Access Protection Act of 2004.

This bill helps to remedy the exploding medical liability and litigation crisis in our country, which is preventing patients from receiving high-quality health care--or, in some cases, any care at all--because doctors are being driven out of practice. In fact, this crisis hits us on two fronts, preventing many Americans from getting the vital health care they need, and raising the overall costs of health care for nearly all Americans.

As you will recall, this legislation is not our first attempt to relieve this crisis in access to care. Most recently, we debated S. 2061, which failed to receive the 60 votes necessary to invoke cloture in February, and we debated S. 11 prior to that. We can ill afford to ignore the many Americans whose doctors are retiring early or restricting their practices because of rising malpractice costs.

This health care crisis is jeopardizing access to health care in my home State of Utah and around the country.

The medical liability crisis is also inhibiting efforts to improve patient safety and stifling medical innovation. Excessive litigation is adding billions of dollars in increased costs. The Congressional Budget Office estimates that total savings to Medicare, Medicaid and the Federal Employees Health Benefit Program would be $15 billion in direct health care costs by passing medical liability reform. A Department of Health and Human Services report estimates that we could save $70 billion to $126 billion in defensive medicine costs. And they are really on the conservative side. I said 20 years ago, as a former medical liability defense lawyer defending doctors, health care providers, nurses, and so forth, knowing that most of those suits were frivolous to begin with, that there was at least $300 billion in unnecessary defensive medicine. Now we all want defensive medicine. We want doctors to do everything they can to help. But I am talking about unnecessary defensive medicine, unnecessary tests, unnecessary costs, unnecessary x-rays, unnecessary MRIs, unnecessary CAT scans, unnecessary cardiovascular tests, unnecessary respiratory tests and other types of tests that are not needed but are insisted upon by doctors because they want to have in their history every possible protection.

Even the American Medical Association admits there are at least $65 billion in unnecessary defensive medicine costs. When you get the AMA to admit that, you know it probably is a lot higher. In fact, it is costing every American, because we will not do anything about getting these frivolous suits under control. It is wrecking our health care profession in this country.

The liability crisis is also reducing access to high-quality health care. The 2004 survey by Medical Group Management Association of almost 13,000 physicians found that 15.6 percent of responding groups reported that their physicians plan to retire, relocate or restrict their services over the next three years.

These numbers have been consistent in large studies done in New York, California, Colorado and my home state of Utah.

However, the equally troubling statistics are that only two percent of cases with actual negligent injuries result in claims and less than one-fifth--17 percent--of claims filed actually involve a negligent injury. In other words, the deserving injured are going uncompensated, while a great deal of litigants with spurious claims tie up our court system and cost all of us unnecessary billions of dollars.

This situation has been likened to a traffic cop who regularly gives out more tickets to drivers who go through green lights than to those who run red lights. That is clearly no way to ensure traffic safety, and we should not accept such an inefficient and inequitable method of ensuring patient safety.

These numbers are a searing indictment of the current medical liability system. I believe we can do better for the American people and the Pregnancy and Trauma Care Access Protection Act is an important step along that path. We must do better.

Today's proposed legislation addresses two areas in dire need of relief: trauma care and obstetrical care.

Many physician groups are no longer able to be oncall for hospital emergency departments. As medical care to trauma victims, especially children, is by its nature high risk, many doctors can no longer afford to treat pediatric trauma patients. The problem is also acute for women who need obstetrical and gynecological care because OB/GYN is among the top three specialties with the highest professional liability insurance premiums. This has led to many doctors leaving their practice and to a shortage of doctors in many States, including my own home State of Utah. For example, Utah physician Dr. Catherine Wheeler would have to deliver more than 60 babies each year just to pay for her medical liability insurance, which is over $70,000. Although she works 80 hours per week, after she pays her malpractice premiums and other costs, she takes home money for only 2\1/2\ months of the year.

Utah Medical Association data show that medical liability insurance premiums continue to increase rapidly, creating pressure on doctors to restrict service in Utah. In 2002, there was a 30-percent rise. Last year, premiums rose 20 percent. This year, they are projected to increase 15 percent in Utah.

Studies by both the Utah Medical Association and the Utah Chapter of the American College of Obstetricians and Gynecologists, ACOG, underscore the problem in my State.

Utah Medical Association data show that over half of the family practitioners in Utah have already given up obstetrical services or have never practiced obstetrics even though they were trained to do so. Of the remaining practitioners who still deliver babies, nearly one- third say they plan to stop providing OB services within the next decade--most within 5 years. A Utah ACOG survey found that 15 of the 106 members polled had already stopped practicing obstetrics, and 21 of the remaining 91 plan to stop within 5 years. These changes in practice, such as retiring, relocating, or dropping obstetrics because of the medical liability reform crisis, leaves almost 1,500 pregnant women in Utah without OB/GYN care.

The medical liability crisis, while affecting all medical specialties and practices, hits OB/GYN practices especially hard. Astonishingly, over three-fourths--76.5 percent--of obstetrician/gynecologists report being sued at least once in their individual careers. Indeed, over one- fourth of OB/GYN doctors will be sued for care given during their residency. These numbers have discouraged Americans finishing medical school from choosing this vital specialty.

Currently, one-third of OB-GYN residency slots are filled by foreign medical graduates, compared to only 14

percent one decade ago. OB/GYN doctors are particularly vulnerable to unjustified lawsuits because of the tendency to blame the doctor for brain-injured infants, although research has proven that physician error is responsible for less than 4 percent of all neurologically impaired babies.

Jury awards have been escalating at an alarming rate. Data from Jury Verdict Research show that the average liability award increased 176 percent from 1994 to 2001. The average jury award is $3.9 million. Over half of all awards are $1 million or more. This crisis is threatening Americans' confidence in our health care system to take care of their medical needs. Over three-fourths of Americans fear that skyrocketing medical liability costs could limit their access to care, and indeed that is already happening. AMA, the American Medical Association, data show that 19 States--19 States--have serious patient access problems, and 25 more, including my own home State of Utah, are nearing crisis.

An August 2003 GAO report concluded that actions taken by health providers as a result of skyrocketing malpractice premiums have contributed to health care access problems. These problems include reduced access to hospital-based services for deliveries, especially in rural areas.

In addition, the report indicated that States that have enacted tort reform laws with caps on noneconomic damages have slower growth rates in medical malpractice premiums and claims payments. From 2001 to 2002, the average premiums for medical malpractice insurance increased about 10 percent in States with caps on noneconomic damages. In comparison, States with more limited reforms experienced an increase of 29 percent in medical malpractice premiums each year.

Medical liability litigation directly and dramatically increases health care costs for all Americans. In addition, skyrocketing medical litigation costs indirectly increase health care costs by changing the way doctors practice medicine.

``Defensive medicine'' is defined as medical care that is primarily or solely motivated by fear of malpractice claims and not by the patient's medical condition. According to a survey of 1,800 doctors published in the journal entitled Medical Economics, more than three- fourths of doctors felt they must practice defensive medicine. A 1998 study of defensive medicine by Dr. Mark McClellan, using national health expenditure data, found that medical liability reform had the potential to reduce defensive medicine expenses by $69 billion to $124 billion in the year 2001. You can imagine what that number is today.

I remember, as a medical malpractice defense lawyer, I would tell doctors: You are just pigeons in a shooting gallery. The fact is, physicians have to have a history of treatments they have provided to their patients so they can prove that they did everything possible to prevent any real problems with their respective patients. Consequently, doctors have had to do that over the years because of the skyrocketing medical liability claims being made, a good 90 percent of which are, for the most part, spurious and frivolous.

The financial toll of defensive medicine is great, and especially significant for reform purposes, as it does not produce any positive health benefits. Not only does defensive medicine increase health care costs, it also puts Americans at avoidable risk. Nearly every test and every treatment has possible side effects; thus, every unnecessary test, procedure, and treatment potentially puts a patient in harm's way. Seventy-six percent of physicians are concerned that malpractice litigation has hurt their ability to provide quality care to patients.

What can we do to address this crisis? The answer is, plenty; and there are excellent examples of what works. Last March, HHS released a report describing how reasonable reforms in some States have reduced health care costs and improved access to quality health care. More specifically, over the last 2 years, in States with limits of $250,000 to $350,000 on noneconomic damages, premiums have increased at an average of just 18 percent compared to 45 percent in States without such limits.

California enacted the Medical Injury Compensation Reform Act, also known as MICRA, more than a quarter century ago. MICRA slowed the rate of increase in medical liability premiums dramatically without affecting negatively the quality of health care received by California State residents. As a result, doctors are not leaving California.

Furthermore, between 1976 and the year 2000, premiums increased by 167 percent in California, while they increased three times as much-- 505 percent--in the rest of the country. Now, both percentage increases are high, but 505 percent is extremely high in comparison to a very litigious State like California. Consequently, Californians were saved billions of dollars in health care costs and Federal taxpayers were saved billion of dollars in the Medicare and Medicaid Programs because of the California restraint on medical malpractice claims, especially those that are not proper claims.

No one in this body, perhaps with the exception of our colleague from Tennessee, Dr. Bill Frist, our majority leader, is more keenly aware of the defects in this system than I am. I used to try these cases, and I can say from a practical standpoint that a lot of lawyers bring cases that really are frivolous, because the cost of defending these cases can be in the hundreds of thousands of dollars.

Many insurance companies will pay off those defense costs to get rid of the case rather than take the chance a runaway jury will cost them even more. That is what is happening. It is happening in hundreds, perhaps thousands, of cases throughout the country. Most of these cases should have never been filed, however, there are a small number of cases that are very serious and it is appropriate for our judicial system to take care of them.

Before coming to Congress, I litigated several medical liability cases. I have seen heart-wrenching cases in which mistakes were made, where there was negligence. But more often, I have seen heart-wrenching cases in which mistakes were not made. Doctors were forced to spend valuable time and resources defending themselves against these frivolous lawsuits.

A recent Institute of Medicine report, ``To Err is Human,'' concluded that:

The majority of medical errors do not result from

individual recklessness or the actions of a particular group.

This is not a bad apple problem. More commonly, errors are

caused by faulty systems, processes, and conditions that lead

people to make mistakes or fail to prevent them.

We need reform to improve the health care system and processes that allow errors to occur and to identify better when real medical liability has occurred. The reform I envision would address litigation abuses in order to provide swift and appropriate compensation for malpractice victims, redress for serious problems, and ensure medical liability costs do not prevent patients from accessing the care they really need. So we need to move ahead with legislation to improve patient safety and reduce medical errors, and we need to urgently address the medical liability crisis so more women are not denied access to quality medical care because it has become too expensive for their OB/GYN doctors to continue their practice, and so we do not jeopardize trauma patients' access to urgently needed medical attention.

The Pregnancy and Trauma Care Access Protection Act of 2004 will allow us to begin ensuring that women, babies, and trauma patients get the medical care they need and deserve.

Without tort reform, juries are awarding astounding and unreasonable sums for pain and suffering. A sizable portion of those awards goes to the attorney rather than the patient. It is often estimated as high as 50 percent. The result is doctors cannot get insurance and patients cannot get the care they need.

All Americans deserve the access to care, the cost savings, and the legal protections States like California provide their residents. Today's bill will allow us to begin to address this crisis in our health care system. It will give trauma patients and women and their babies access to their doctors, and it will enable doctors to provide high quality, cost-effective medical care.

America's medical liability system is broken. It is not ensuring patient safety, and it is causing shortages of vital health care throughout the country. Congressional action to pass medical

liability reform legislation is imperative. I strongly support this legislation and I urge my colleagues to support cloture and end this filibuster that will now be the third time effective changes in these laws is being attempted. Our pregnant women deserve better. They deserve the best quality care the medical system can provide. Our trauma victims deserve better. We are finding all over the country trauma centers are either starting to shut down or severely cutting back because they can no longer afford to fight these frivolous cases. They can't function in a health care system that doesn't work. That is a tragedy, especially for those who suffer from trauma-related injuries.

I hope our colleagues will vote for cloture on this bill. I hope we can proceed and pass medical liability reform which is long overdue. I strongly support S. 2207 and urge my colleagues to do what is in the best interest of patients and health care providers throughout the country.

I yield the floor.