Robert Emmet Park Act of 2017

Mr. Chairman, I yield 4 minutes to the gentleman from Tennessee (Mr. Roe).

Mr. Chairman, I yield myself 5 minutes.

Mr. Chairman, first of all, the statement that this bill caps or limits States on economic or noneconomic damages is incorrect. In fact, I would point the gentlewoman from Texas to page 6 of the bill, that says, under State Flexibility, that specifies a particular monetary amount of economic or economic damages, there is no provision in this section that shall be construed to preempt State law. We wrote that specifically to respect the States' rights.

I recall a number of these pieces of legislation that have come before this Congress. I can remember it back at least until 2007. I was uneasy about the constitutionality because it did reach in and preempt State law.

And I am a respecter of States' rights, but we have a Federal interest in healthcare. That is the provision that is written into the bill. If there are Federal dollars involved, if it is a Federal program, then the Federal Government has an interest in limiting these damages.

We capped the damages in this bill, not the economic damages. Those real damages that are economic damages are fully compensated, without limit, without cap, and without the interference of this law, unless States choose to cap economic damages.

Noneconomic damages, however, are capped at $250,000; and that $250,000 cap is something that has existed in California State law for more than 40 years, signed into law by the very durable Jerry Brown. But if the States want to change that, if they want to raise the cap beyond $250,000, that is their right to do so. We specify that in the bill.

I would like to discuss a need for this bill. It is necessary to preserve fiscal sanity in Federal healthcare policy. And I would like to point out, also, at the outset that this bill only applies to claims concerning the provision of goods and services for which coverage is provided in whole or in part by a Federal program, a Federal subsidy, or a Federal tax benefit. It is a clear, clear, Mr. Chairman, Federal nexus. Wherever Federal policy affects the distribution of healthcare, there is a clear Federal interest.

So, the bill's commonsense reforms, which have been the law in California for over 40 years and that the CBO has scored a couple of times here--the previous score was $54 billion; this score is $50 billion--is over $50 billion in savings to the people who are paying for healthcare in this country, and that includes our taxpayers and the healthcare users.

But the $250,000 cap is reasonable. It has sustained itself over those 40 years in California, and it is good enough for other States to emulate.

When I hear some pushback from Texas, I am kind of thinking they want to keep the system they have, and they don't want to have to compete with the rest of the country. I think we might lose a vote or two to from Texas on that alone: We have ours; we don't want America to have anything like that because then we have to compete with all of America.

This bill will allow courts to require periodic payments for future damages instead of lump sum awards. That helps limit bankruptcies so plaintiffs that might receive only pennies on the dollar can be prevented. And it includes provisions creating a ``fair share'' rule by which damages are allocated fairly in direct proportion to fault. That has got to help a lot when you are thinking about the cost of healthcare.

The bill does all this without in any way limiting compensation for 100 percent of the plaintiffs' economic losses, which include anything to which a receipt can be attached, including all medical costs, lost wages, future lost wages, rehabilitation costs, or any other economic out-of-pocket loss suffered as a result of a healthcare injury.

Far from limiting deserved recoveries in California, these reforms have led to medical damage awards in deserving cases, Mr. Chairman, in the area of the $80 million to $90 million range.

The Washington Post reported a few months ago: ``U.S. healthcare spending . . . is projected to accelerate over the next decade. . . . A study by the Centers for Medicare and Medicaid Services projects that the average growth in health spending will be even faster in 2016'' on up through the decade of 2025. ``The projections are based on an assumption that the legislative status quo will prevail.''

If we don't change the law, we are going to see these costs going up.

As Nate Silver pointed out in The New York Times, not my favorite document: ``All the major categories of Federal Government spending have been increasing relative to inflation. But essentially all of the increase in spending relative to economic growth and the potential tax base has come from entitlement programs, and about half of all of that has come from healthcare entitlements specifically.''

Studies show that as healthcare costs rise, wages fall; and the more companies pay in healthcare costs, the less they can pay in wages. So when healthcare costs increase and that growth increases, wages stagnate; and when healthcare costs growth slows, wages go up.

Members who want to see wages increase should vote for this bill--it is good for the healthcare workers--because one of the drivers of higher healthcare spending is so-called defensive medicine.

Mr. Chairman, I yield myself an additional 2 minutes.

That is a very real phenomenon confirmed by countless studies in which healthcare workers conduct many additional costly tests and procedures with no medical value. That is charged to our Federal taxpayers, and it is simply to avoid excessive litigation costs.

A survey published in the Archives of Internal Medicine found that 91 percent of the over 1,000 doctors surveyed ``reported believing that physicians order more tests and procedures than needed to protect themselves from malpractices suits.''

The study also asked: ``Are protections against unwarranted medical malpractice lawsuits needed to decrease the unnecessary use of diagnostic tests?'' And the answer, an identical number: 91 percent of the doctors surveyed agreed.

But there is one Newsweek reporter who described the personal experience of individual doctors this way: ``Typical was one doctor, who had a list as long as my arm of procedures ER docs perform . . . for no patient benefit. They include following a bedside sonogram . . . with an ``official'' sonogram because it's easier to defend yourself to a jury if you've ordered the second one; a CT scan for every child who bumped his or her head, to rule out things that can be diagnosed just fine by observation; X-rays that do not guide treatment, such as for a simple broken arm; CTs for suspected appendicitis that has been perfectly well diagnosed without it.

``Although doctors may hate practicing defensive medicine, they do it so they don't get sued. . . . Nationwide, physicians estimate that 35 percent of diagnostic tests they ordered were to avoid lawsuits, as were 19 percent of hospitalizations, 14 percent of prescriptions, and 8 percent of surgeries. . . . All told,'' according to the Newsweek article, $650 billion in unnecessary care every year was provided by these doctors. Another ER doctor said he ordered 52 CT scans in one 12- hour shift for a total of $104,000 in a single day.

These are the things we are dealing with, Mr. Chairman.

Mr. Chairman, I yield myself an additional 1 minute.

One of the most recent studies, published a few months ago in the Journal of the American College of Radiology studied the effects of tort reform on

just radiographic tests alone and found that there were ``2.4 million to 2.7 million fewer radiographic tests annually attributed to tort reforms.''

Just imagine what savings would occur if such reforms were attached to all Federal healthcare programs, as this bill would do.

It causes me to think of an orthopedic surgeon who told me that he can diagnose an ACL almost every time, yet he is compelled by his liability insurance to do additional tests, 97 percent of which are unnecessary.

That is the kind of thing we are dealing with, Mr. Chairman, and it is time for us to bring sanity to this litigation that we have in this country.

I reserve the balance of my time.

Mr. Chairman, I yield myself 1 minute.

Mr. Chairman, it is just interesting to me to hear this discussion about the Senate addressing the healthcare situation in America. I stood on this floor time, after time, after time, and in 2010, March 23 of 2010, the final passage of ObamaCare was sent out of the Congress to the President of the United States, who signed it immediately before the sun could come up in the morning.

And I was sick at heart at what happened to our Constitution, our rule of law, our individual rights. And now we have a mess of a healthcare system in America. This is a component of the fix. We don't have a single Democrat in the House or Senate that is willing to even commit to work with us to put up a single vote to try to improve the healthcare system in America.

They made a mistake, and they passed ObamaCare. They served it over to us and said: Now you fix it. Well, we are going to declare it a mess no matter what you do. We are going to fix it. It is going to take some time.

I reserve the balance of my time.

Mr. Chairman, I yield myself 1 minute.

Mr. Chairman, as you listen to the stories that are here that have been delivered by the gentleman from Florida, I am wondering why we haven't heard these stories come out of California. Because this legislation essentially mirrors California legislation. That was the model that we followed. And they have had over 40 years to repeal or amendment it, and it has been sustainable.

There is a right to a jury trial under this. It is just that there are caps that are set, that are reasonable caps, and the States are free to change those caps up or down.

So I don't quite follow this, but I would say someone who is raped in a nursing home is not covered under this. This legislation doesn't affect it at all. It has to have an affect by a diagnosis, a prevention, or a treatment of a disease impairment; and a rape is not that. So it would not be covered under this legislation.

Mr. Chairman, I know that my opposition would like to have this legislation killed. I would just point out something that I heard on the floor of the House here about 10 years ago, and it was this: We can pass this legislation, but the Senate may not pass it. And I would urge them to take it up. There is a special interest, and it is the Trial Lawyers Association. They are the ones who will not come out of this very well.

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

Mr. Chairman, I yield myself 1 minute.

Mr. Chairman, I point out also that this bill keeps these cases in State court. It doesn't move them to Federal court. Previous legislation that has been brought to this floor, a decade or so ago, did move a lot of these cases to Federal court. But it is carefully drafted to keep this with the maximum amount of respect for States' rights that can be held and still have a Federal interest.

There has to be a Federal interest in every dollar involved in this. In every single case, there has to be Federal dollars involved in it, or this bill wouldn't affect it at all. And so I am one who is also a great respecter of States' rights. And in this legislation, as drafted, there are provisions in there over and over again that protect as many of the States' rights as can be. And if you take the other side of this argument, then it is far stronger that the right of the Federal Government would be usurped by the States if we don't have this legislation.

That is what is taking place now--States that choose not to make a decision, not to set caps, and we are seeing huge settlements going on around the country. This is what we want to end, so that we can save the $50 to $54 billion for the taxpayers. But the thing that is even worth more than this is, how much of that $650 billion in defensive medicine will no longer be used in this country, and how much safer and less expensive will our healthcare be in America?

I reserve the balance of my time.

Mr. Chairman, I yield myself 1 minute.

Mr. Chairman, I was a little surprised to hear that a judge in the State of Washington had ruled that caps are unconstitutional. In fact, it is kind of curious to hear the same arguments--or conflicting arguments coming out of the other side. One of them says it is the States' rights to be able to set the caps. The other one says it is unconstitutional to set the caps. So I think that conflict, it would be good if that were resolved.

I think, in either case, that I disagree with both of those positions, Mr. Chairman.

If a Washington State judge says caps are unconstitutional, on what basis?

That would say, then, that a State legislature couldn't cap them; Congress can't cap them; that this is essentially, then, a function of the courts.

I remember a decision that came out of the State of Washington. It was a Federal judge that essentially ruled that the President's executive order on, let's say, migrants coming into the United States was unconstitutional, even though Congress specifically granted the authority to their President. So I am not going to defer to a single judge's opinion in that fashion.

I would point out, too, that we do protect States' rights. There is provision in this bill after provision, and it is titled State Flexibility. Look through their and find all the provisions of State Flexibility where we respect States' rights. And it is written as carefully as it can be to respect the maximum amount of States' rights.

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

Mr. Chairman, I yield myself 15 seconds.

I would just point out to the body that I didn't hear a single fact in the previous 2 minutes. It is all opinion and hurled accusations. But I think it is important for this body to deliberate over the facts themselves, and I have delivered a lot of that data.

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

Mr. Chairman, I yield myself 1 minute.

Mr. Chairman, I would point out, first of all, the gentleman from Maryland must know that this isn't a criminal statute. This is civil law. It doesn't have anything to do with crime or criminal law, so let's keep our discussion to the civil actions that we are discussing here.

It is not propaganda. It is facts that we have delivered on this side. So I want to put this into the Record verbatim, Mr. Chairman. Regarding cases of rape or physical abuse, H.R. 1215 does not cover such cases at all. That is because the bill only applies to medical malpractice claims based on the provision or use of healthcare services; and healthcare services are defined in the bill as things related to the diagnosis, prevention, or treatment of any human disease or impairment.

Clearly, rape or any other physical abuse, and the neglect of basic sanitary conditions, is not related to the diagnosis, prevention, or treatment of any human disease or impairment. So in cases involving rape or physical abuse by anyone, or neglect of basic needs, the bill simply does not apply.

But it does respect States' rights. It is carefully written to protect States' rights. It is a significant and huge improvement upon some efforts we have seen in the past, and one of those reasons is because many of us care about States' rights, and we pay attention to the Constitution. There is a Federal nexus in everything that goes on here, and States are not limited from raising caps on economic or noneconomic damages or lowering those caps. We respect the States in every way possible, and still get a positive result out of H.R. 1215.

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

Mr. Chairman, I yield myself 30 seconds.

Mr. Chairman, I have heard the gentleman from Maryland say that this legislation would override the laws of 28 States. That was a surprise to me to hear that when I heard the number before Rules Committee, which I think I actually recall it was 27. But 28, 27, it doesn't override laws. It is the absence of laws.

There are States that don't have caps. That is what we are talking about here. So it is not overriding State laws in States where there are no laws. It simply is setting a Federal foundation and a guideline for them.

And if I am in a State legislature, I know I have the authority to raise or lower the cap on economic and on noneconomic damages, and that my laws are not being overridden, but they are being provided by the wisdom of the American people, then I am going to be thankful I have that to work with until I can amend it.

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

Mr. Chairman, I inquire as to the amount of time I have remaining.

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

First, I say in response to the gentleman from Maryland's discussion about the States courts that have prohibited caps. That is one of the reasons that we need this legislation, is that you have out-of-control liberal judges that have decided that even their State legislatures can't pass the laws. They want to come in and preempt the states' rights of we, the people, of the individual States who elect their general assemblies to make their decisions.

Often, the judges are set in lifetime appointments where they are not held accountable, so it would be interesting to look back into each of these States that the gentleman from Maryland has mentioned and address this thing from ``we, the people'' because we, the people, are the power in this country. Our rights come from God, and they are vested in we, the people.

I thought the gentleman from Pennsylvania's look at H.R. 1215 was a really deft way to focus on this and speak about the Magna Carta, but there wasn't anybody back in old England in that time that had any shot at filing a liability claim, let alone receiving a frivolous claim that would make one individual vastly wealthy at the expense of a lot of other folks. So this is something that has accumulated over the last 502 years since the Magna Carta was signed.

So I would say this: healthcare costs are out of control due in large part to unlimited lawsuits and other problems ObamaCare failed to solve or else ObamaCare made worse. H.R. 1215 is commonsense litigation reform legislation that will rein in overly aggressive and healthcare lawsuits while preserving the ability of plaintiffs to recover unlimited economic damages.

The bill applies only to claims concerning the provision of healthcare goods or services for which coverage is provided in whole or in part by a Federal program, a Federal subsidy, or a Federal tax benefit giving it a clear Federal nexus.

This isn't criminal legislation. It doesn't address the cases of rape. We should arrest those people and lock them up in prison and punish them to the max, but it is not the subject of this legislation.

So wherever the Federal policy directly affects the distribution of

healthcare, there is a clear Federal interest in reducing the cost of such Federal policy. This bill's commonsense reforms, which have been the law in California for over 40 years, are conservatively estimated by CBO to save at least $50 billion. The previous estimate was $54 billion in Federal healthcare dollars. At the same time, this bill doesn't in any way limit compensation for 100 percent of plaintiffs' losses.

As reported in The Washington Post last month, the U.S. healthcare spending is projected to accelerate over the next day. A study by the Centers for Medicare and Medicaid Services project that the average growth in healthcare spending will be even faster between 2016 and 2025. The projections are based on an assumption that the legislative status quo will prevail. Studies show that, as healthcare costs rise, wages fall. H.R. 1215 will save billions of dollars in healthcare costs and will, thereby, increase wages for workers nationwide.

Mr. Chairman, as I look at the picture of how I watched this defensive medicine grow over the years and over the decades, $650 billion potentially, reported by a Newsweek article, in unnecessary defensive medicine tests that are done. A doctor that ordered CT scans in massive numbers in a single day, when I see 97 percent of the MRIs just to be sure that the diagnosis of an ACL knee injury is protected in the case of liability insurance, we are not going to see just $50 billion in savings here. We are going to see hundreds of billions of dollars in savings.

And as an anesthesiologist told me that--he was practicing in Texas-- when Texas passed the law that is roughly a mirror of California law, that his premium as an anesthesiologist was $26,000 a year; and after the law passed in Texas, it dropped to $6,500, exactly one-fourth. A 75 percent reduction in that particular case. He is now practicing in Iowa. Iowa passed mirror legislation as well.

Mr. Chairman, I urge all of my colleagues to join me in supporting this vital legislation, and I yield back the balance of my time.

Mr. Chairman, I thank the gentleman from Texas for yielding.

I want to express, Mr. Chairman, how much I appreciate the work that has been done by so many people and their part in this bill.

I rise in support of this improving amendment--it comes out of the minds of Texas, I might add--which would clarify the timing of the statute of limitations in the provision base of the bill.

Mr. Chairman, I urge the adoption of the Sessions amendment.

Mr. Chair, I thank the gentleman from Texas for his leadership on the Rules Committee and in many other ways; and I also thank Dr. Burgess, another gentleman from Texas on the Rules Committee whose amendment is being offered by Mr. Sessions.

As I listen to this dialogue, Mr. Chairman, I am just thinking that States do have rights. They have the right to control any of the healthcare services that are funded by individuals or States. This only affects that because it has Federal dollars in it. We drive at a 55- mile-an-hour speed limit because the Federal Government sets that.

So I rise in support of this amendment, but the States are not funding Medicare, Medicaid, or ObamaCare.

Mr. Chair, I am happy to accept the time from the gentleman from Tennessee and make the point that hasn't been made very well here today that--apparently, not well enough or the gentleman wouldn't have yielded the time to me, I don't believe--where there are Federal dollars involved, there have been Federal regulations that have matched along with that.

We have written all kinds of legislation in this Congress, a lot of which I disagreed with. But there was a Federal nexus, and it hasn't been litigated successfully time after time after time.

We saw ObamaCare itself was litigated over and over again and the Supreme Court came down with rulings that let that legislation stand. That is one of the reasons why we have the angst that we have today.

But the case that this usurps States' rights is thin. It is not without some consequence, but it is very thin. We have gone way over to the other side, and we have written everything that we can possibly write into this bill that respects the rights of States. There is always a Federal nexus--we can count on that--and it is so small in comparison to so many other Federal things. Some of the things in our Federal Government are overreach. This is not. This is a minimal, de minimis reach in order to regulate over-the-top trial lawyers, who are the ones who are the only losers today, Mr. Chairman.

Mr. Chairman, I thank Dr. Roe, the gentleman from Tennessee, for bringing this amendment.

Looking at the language here, it is interesting that the concern was that the witnesses may not be available within a large State. I notice, as I read the language, that unless the person was licensed for practice in the State or a contiguous border State--that is pretty good. If you are Hawaii, maybe not so good. But Dr. Roe, typical to his style, anticipated these things by putting the waiver authority in the last provision in the amendment, which says: ``The court may waive the requirements in this subsection if it determines that the appropriate witnesses otherwise would not be available.''

So this is a sound, well thought-out directive that ensures that we have a high level of professionalism.

When the gentleman earlier talked about a jury of your peers, what about having professionals who are highly credentialed that do understand the locality and the normal practices within the region?

So not only do I support this amendment, but I encourage its adoption. It requires expert witnesses to have knowledge of the standard of care in their local communities. It is a commonsense amendment, and I urge its adoption.

Mr. Chairman, I thank the gentleman for yielding time to me.

Mr. Chairman, I rise in support of this improving amendment which would save even more Federal taxpayer dollars by requiring the filing of affidavits of merit from an appropriately qualified specialist, requiring that expert witnesses have speciality backgrounds relevant to the case, allowing doctors to apologize without fear of penalty, and requiring a 90-day cooling-off period before lawsuits can be filed to facilitate voluntary settlements.

I urge its adoption by the House, and I would point out that, as the gentleman from Tennessee referred to a fraternity of healthcare professionals as if somehow they couldn't come to an objective decision on their own profession, there has to be a fraternity of lawyers that are making these decisions for all of America right now. What we are seeking to do today is to bring this back to common sense, bring it back to we the people, keep it within the bounds of the Constitution, and reduce the cost of healthcare across America $54 billion, and we are looking at a potential for $650 billion a year.

Mr. Chairman, I urge its adoption.

Mr. Chairman, I thank the gentleman for yielding.

Mr. Chairman, I have a statement before me from Chairman Goodlatte, the chairman of the full Judiciary Committee. I am going to represent this as his statement, but the chairman thanks the gentleman from Kentucky for his clarification while he remains opposed to the amendment because it provides an overly broad definition of the eligible professional organizations authorized to issue the guidelines that would be used as an affirmative defense, and because it is not supported by the wider coalition of medical groups supporting the base bill. He looks forward to working with the gentleman to further refine and improve his legislative proposal.

That concludes Chairman Goodlatte's statement that he would like read into this Record.

And I would say on my own behalf, Mr. Chairman, that I very much appreciate the work that Mr. Barr has brought to this. The language that he presented originally, that had to be amended in order to conform with the parliamentarian, I believe, does define this with clarity. So I am inclined to support the gentleman from Kentucky. We will see what happens if there is a recorded vote.

Mr. Chairman, I thank Ranking Member Conyers for yielding me time. Mr. Chair, I share your grief over last night's loss. Sorry about that.

Mr. Chairman, this bill is a loss, too. It is a loss to people who have been injured by defective drugs, defective medical devices, been harmed in nursing homes, or been harmed by medical malpractice because it sets a cap on noneconomic damages of $250,000, no matter whom the person is, whatever their position was, no matter what damages they suffered.

Trial lawyers aren't the most liked people in America. They are a little bit above Congress people, I think, but it is right in there with used car salesmen. None of the three of us are doing real good. So it is easy to kind of beat us up.

But people like their doctors. I see Dr. Roe over there. People like doctors. Doctors provide healthcare, if they are allowed to by Federal law and given the opportunity to get reimbursed and have a system. People don't generally like trial lawyers. But the fact is, trial lawyers do a public service because they represent people. When they do it on contingency fees, they do it for people who wouldn't have the money to hire a lawyer, necessarily, but have been harmed. And they go in on the idea that sometimes they will get nothing, but if they win, they get a contingency fee, and they give representation to people who otherwise couldn't afford it.

When they win, they win because a jury--which is like a little focus group of America--says there was a duty that the doctor breached and a harm done to the patient and the patient should be compensated.

My chairman says this is just like California, and there he goes again with that Reagan stuff. Reagan was 40 years ago, I think, 35 years ago. Whatever. Californians thought this isn't California's law. This goes further than California on joint liability. The fact is, when you eliminate joint and several liability in certain places, a certain part of it is California, a certain part of it isn't, it is less likely that the injured party is going to be able to collect.

It goes further in terms of setting a statute of limitations, but the big picture is States' rights. Normally, the folks on the other side of the aisle are all for States' rights. They are for States' rights when it comes to voting rights. They are for States' rights when it comes to civil rights. They are for States' rights on all kinds of things that generally tend to tamp down the lower economic folk in our country, particularly in the South.

But here on medical malpractice, which has always been a province of the States, they want to usurp it and make a Federal standard that applies to everybody.

If a State hasn't set a cap on damages, then the Federal cap of $250,000 would go into place. So if you have a State that says it is unconstitutional to have a cap because you have got a right to a jury trial, then you might not be able to have that cap, and you will have this $250,000 cap set.

There are all kinds of problems with Federalism, all kinds of problems with people who have been injured getting compensated, and other problems.

Go Tigers.

Mr. Chairman, I rise in opposition to the amendment.

Mr. Chairman, the amendment does even more damage than the bill does because it makes it possible that there will be even less time for a plaintiff, once they are aware of their injury, to bring action.

This is something that lessens the statute of limitations. That is what the bill is trying to do, is to see that less people get their opportunity to get to court, which is what statute of limitations are intended to do. That is the purpose.

When somebody has been injured from a medical malpractice case or negligence from a nursing home, we should encourage people to get relief and let a jury decide.

These bills--and I suspect these amendments because they are aimed at the same thing--are opposed by the AFL-CIO; the American Federation of State, County, and Municipal Employees; the American Bar Association-- not exactly a liberal lion--the Center for Justice and Democracy; and the National Conference of State Legislatures. Also, because this is a foray into federalism--unheard of before, making this a Federal issue, not a State issue--the Consumer Federation of America, the Consumers Unions, Public Citizen, and Vietnam Veterans of America. There are many other groups as well.

This amendment does more to see that folks don't get access to a jury. And the irony of it is that the national Republican effort seems to be to talk badly about Washington and Congress and drain the swamp and believe in the individuals back home and folks at home.

Well, the most pure form of justice comes from a jury where you have a jury of your peers in your own community who are chosen to determine what happened, to determine the facts, and to determine the damages. Instead, they are proposing that the Republicans in Congress know better what to do to put limits on what a jury can award their fellow citizens.

And they are also putting limitations on the statute of limitations and lessening that, and on joint and several liability, which go toward helping people who have gotten judgments be able to collect on judgments, which is so important. A judgment is no good unless you can collect on it. It is just counter to what the Republican Party philosophy generally is and has been, that I have kind of perceived recently, about being against Washington and laws coming on down high from Washington, D.C.

Much of what we heard at our discussion from a gentleman from West Virginia was about a West Virginia law. That is what you are supposed to have is a West Virginia law. Then somebody else talked about a Texas law, and they are holding up a California law.

Each State is supposed to make its own laws. We have got 50 States. They

talk a lot about the 50 States and the electoral college, and the States have an important function in our system of government. They are supposed to be areas where they have provinces and act. Juries, jury trials, and trial courts, that is all State law, and that should be determined by West Virginia, Texas, California, and Florida, not up here.

This bill, when it went through committee, passed by one vote because a couple of folks--I think it was Judge Poe and Judge Gohmert; I am pretty sure it was the two of them--two judges from the State of Texas felt it went too far in encroaching on the States' province dealing with tort law. This amendment just goes the same direction.

This is just unfortunate that what we are trying to do is help, really, insurance companies; it is not so much doctors. Doctors might benefit some, but it is the insurance companies that would benefit the most, and that is who this is about.

So we oppose the amendment and we oppose the bill. We support the American people and the right of the people and the juries to dispense justice that the facts dictate and that justice demands.

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

Mr. Chairman, this is an amendment--a bad amendment--that makes a bad bill worse. All those folks from Texas ought to be going to Austin. Where this belongs is in Austin, not in Washington. These are State issues.

We had an amendment that said that these defensive measures that you say that they are taking that waste all this money and time, we had an amendment that said these caps wouldn't apply if you cut off the wrong arm, and you all wouldn't take it. So I don't know how many defensive measures they have got.

This is the right arm; this is the left arm. When you go in to do surgery and you have to amputate an arm, take off the right arm or the left arm, but not the wrong arm. If you take off the wrong arm--damages big time. You all didn't accept that amendment.

This is shutting the courthouse door, closing down juries, and not having faith in the American people to be able to ascertain facts and damages as they have throughout time immemorial. It is a power grab from Washington. It is the swamp draining over to flood the State houses of all 50 of our States.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I claim the time in opposition.

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

Mr. Chairman, this is called the Protecting Access to Care Act, but that is really a misnomer because the purpose of these amendments in the bill takes as a given that there are going to be allegations that doctors, medical device companies--not exactly limited financial resources or in potential for harm--and nursing homes are going to be alleged to have committed torts against individuals and that when that happens, if this becomes law, there will be less opportunity for individuals to get their day in court.

Because most people in the United States are not wealthy, most of the people that get injured not being wealthy are going to bear the brunt of this when they don't get to court within the statute of limitations or they don't collect because of the joint and several liability changes in the law or they get less with noneconomic damages because of the $250,000 cap.

Who is going to benefit from this? Who is going to benefit? It is going to be the person who a jury has found to have been negligent and violated their duty of care: a nursing home, a medical device company, or a physician. They are going to have less damages, less judgments against them, and less costs. Insurance companies can then make more money, and doctors will have lesser premiums.

Who loses? People who have been injured by medical device defective merchandise, nursing home negligence, or medical malpractice.

We are not talking about limiting damages and the ability to recover by having a lesser joint and several liability law. We are not talking about people who have not gotten a judgment. We are talking about people who have gotten a judgment for negligence.

Just like the Republican healthcare bill, this gives billions of dollars to the richest people in America with tax cuts at the expense of poor people who get Medicaid, people with disabilities, pregnant women, poor people, and seniors in nursing homes. They suffer.

This is a microcosm of the healthcare proposals that the Senate can't get 50 votes for--and they didn't even try for 60, which they normally do, because they knew it was not going to be that sufficient, but now they can't even get 50 under reconciliation--and it is a microcosm of hurting the poor and enriching the rich.

These are cases where there will be judgments--juries finding negligence, harm, and damages--if you get to the courthouse on time, and then you won't be able to collect as much.

So who wins? The rich, the medical device companies, the nursing homes, and the physicians. Who loses? Those who have suffered, those whom juries have found to be victims, and victims who should be able to collect but we are limiting how much they can collect and we are making it more difficult for them to collect.

That is not what this Congress should be doing is enriching the wealthy and hurting those who have been harmed by negligence. If it is going to happen, it ought to happen in the States. So it is an attack on the 10th Amendment.

Mr. Duncan from Tennessee came here and gave beautiful testimony about a consistent life protecting the 10th Amendment, and that is what Mr. Gohmert and Judge Poe also did about what is left to the States. That is why this amendment and the bill are both bad.

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

Mr. Chairman, how much time do I have remaining?

Mr. Chair, I yield 1 minute to the gentleman from Iowa (Mr. King), because I think it helps my case.

Mr. Chair, I yield back the balance of my time.

Mr. Chair, this is the Tennessee law. I remember it. It is probably not such a wonderful law, even in Tennessee, even though some of us didn't care because Tennessee is an unusual State.

You see it when you go to Rock City. From Rock City, you see seven, eight, or nine States. That is pretty good, even without the help of the Southern College of Optometry.

If you are in Memphis, the bill would say that you could have an expert from Arlington, Virginia, come to Memphis. That is a long way, yet we are so much closer to Springfield, Illinois, or even to Dallas, Texas, or we are much closer to Baton Rouge, where they have got a lot of great doctors. Those doctors from Baton Rouge could come to Memphis. They would be closer to Memphis than somebody from Arlington, Virginia.

The fact is, the State should decide this. Tennessee made this contiguous State or your own State law. For Alaska, that means you have got Alaska. For Hawaii, it means you have got Hawaii. The States should decide who is an expert and who isn't.

It also says you have got to be in practice for the previous year. If somebody is not in practice and they are a professor at a medical school and maybe the outstanding expert on cardiovascular diseases, and they happen to be someplace like Harvard, they wouldn't be able to go to a State that is not contiguous to Massachusetts. If they weren't practicing, they wouldn't be able to be an expert at all.

These arbitrary time limits, arbitrary requirements, and arbitrary demographic limitations are not aimed at justice or saving costs. They are aimed at reducing the number of experts who might be available.

In a State, it is more difficult to get an expert to come testify because you may get ostracized by your fellow professionals. It might be easier for a plaintiff to find an expert from a State that is a little bit of a distance.

I am not that familiar with Maine. Does it touch maybe Vermont and New Hampshire? It kind of limits itself, too. In Tennessee, you would have 9 or 10 States; in Alaska, none; Hawaii, none; Maine, two. Minnesota has got to be limited because we wouldn't go to Canada because that is not part of our system.

Of course, this isn't really part of our system either because our system is a Federal system, where we give States the right to make these decisions and not make them up in Washington with a one-size- fits-all way to stop people who have been damaged by medical malpractice, medical device defects, or nursing home negligence from getting whole compensation.

We put a limit from Washington on the old person who is being taken advantage of by some individual in a nursing home or some individual who has been given a defective valve in their heart because of a medical device problem.

We in Washington, under this bill, think we know more than what a jury should know about the effects and the damages when that person testifies in that courtroom in front of that jury and before that judge and have their damages proven. You can see that individual and know the harm they have been caused, but their damages are going to be limited because of something that goes on here in Washington, D.C.

That is something the other side argues against constantly. They say things should be decided back home in the States--things like voting rights and trying to limit the opportunity for people in the Justice Department to see to it that people get a chance to vote. They say that States' rights are primary when it suits their purposes.

In Tennessee, the doctors own the medical malpractice insurance company. I think it has the word ``Volunteer'' in it. It is the doctors who own it. So they will be direct beneficiaries.

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

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

Mr. Chair, I was going to try to find that language.

Years ago, a trial lawyer named J.D. Lee told me when I was just a 28-year-old constitutional convention delegate: Don't go down rabbit trails. The gentleman from Iowa is throwing rabbit trails out there, and I am not going to go down one.

The fact is, this is a State issue that should be determined by the States and should be determined by judges and jurors in their jurisdiction who see the defendant and see the plaintiff with their own eyes and determine the facts as the facts dictate and justice demands, is what we hear and what we live by in jury cases. That is what we should live by in Washington in determining what damages are, and not making the decisions up here in Washington, D.C.

This is a bad amendment. It is a bad bill. It is contrary to the mantra that you normally hear from the other side.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I rise in opposition to my friend's amendment.

Mr. Chairman, this amendment prohibits the introduction of apologies as evidence of liability, imposes on States the qualifications for expert witnesses in a healthcare lawsuit, requires plaintiffs to obtain a certificate of merit from a healthcare professional in order to pursue a healthcare lawsuit, and has a 90-day pre-suit notification requirement.

This amendment is very, very difficult in that it says that, if you apologize, a doctor apologizes, the hope is that the doctor can apologize and the patient may think: Oh, he apologized. That is nice. I won't sue him. But then if you decide to sue him or her, you can't put that apology in evidence against him. So it is kind of maybe crocodile tears, a crocodile apology.

But it also requires a plaintiff to get a certificate of merit from a healthcare professional to pursue a healthcare lawsuit--not from a lawyer, but from a healthcare professional. You have got to go to the fraternity to sue a fellow fraternity brother. That is a strange one.

This amendment would add numerous problematic provisions that significantly expand this bill beyond what was even discussed in the Judiciary Committee and in Rules, and it violates State sovereignty, all without any proper legislative vetting before coming to the floor. This is the first I have seen it or I think anybody has seen this proposal--not necessarily regular order.

Its apology provision is overly broad and undermines the legal right of patients. This provision states any apology by a healthcare provider given to a patient or their family is inadmissible for any purpose as evidence of liability or an admission against interest. If it is a true apology, it should be admitted, but it won't be.

The purpose of so-called apology laws that occur sometimes at the State level, which is where they should be, is to encourage a doctor to apologize to the patient for any harm while preserving that patient's ability to offer evidence of wrongdoing. Yet this amendment upends this balance by prohibiting the admission of all expressions of empathy or apology for any purpose of evidence or admission of liability.

This overbroad language undermines the patient's ability to offer evidence that he or she was harmed by wrongdoing. By making inadmissible admissions of fault by the provider, the amendment goes further than many State laws that do not prohibit admissions of fault and would still allow apology evidence to be used for purposes other than proving liability, such as impeaching a witness.

Second, the amendment imposes highly restrictive expert witness qualifications on State courts, which we just discussed with Mr. Roe's amendment. This amendment requires the expert witness to be an exact carbon copy of the defendant. The expert must teach or practice in the same specialty and must have been doing so at the time of the occurrence that forms the basis of the lawsuit and for 1 year preceding the occurrence.

Under this provision, someone with 30 years of professional experience may not qualify; whereas, a person with 1 year of experience could qualify as an expert. Indeed, this rule excludes retired professionals, many academics, and researchers from testifying as experts. It should be up to a judge in the courtroom or to a State that has province over this jurisdiction, not the Federal Government.

Third, this amendment imposes further burdens on injured plaintiffs beyond the already onerous requirements of the underlying bill before they can even file a lawsuit. The amendment requires an injured patient to obtain a certificate from a healthcare professional attesting to the legal merit of the case. This requires injured plaintiffs to find a healthcare professional, not a lawyer, to evaluate the legal merits of the case at the time of filing--closed frat house.

Certificates of merit are a costly, unnecessary obstacle and only serve to block injured plaintiffs access to the courts. There is little proof that such requirements reduce frivolous litigation or costs to medical providers, and certainly they don't help people who have been harmed by negligent treatment.

This requirement overrides State supreme court decisions in Arizona, Arkansas, Ohio, Oklahoma, and Washington, which held that similar lawsuit certification laws violated their State constitutions.

The amendment also requires an injured plaintiff to provide a healthcare provider 90 days' written notice before commencing the lawsuit. This notice requirement is another unnecessary hurdle intended to increase the cost of litigation for injured plaintiffs and dissuade them from filing suit. There is scant evidence that such notice reduces frivolous litigation or facilitates the compensation of the injured party.

Finally, the amendment represents the extreme intrusion on States' rights, which this whole bill does, and is such a flip from the normal Republican thought processes.

Each previously described provision includes the so-called State flexibility provisions in an attempt to brush off federalism concerns that these provisions are mostly one-way preemptive. They only preserve State laws that mirror the amendments' requirements and State laws which include requirements in addition to those imposed by the amendment. While it preserves State notice requirements, it overrides State laws that do not have such.

The States, not Congress, should determine the qualifications for appearing as an expert witness in State court proceedings, determine the appropriate uses of apology evidence, and decide whether certificates are proper or not.

For these reasons, I, unfortunately, have to oppose the amendment by my good friend Mr. Hudson, who is a great Tar Heel.

I yield back the balance of my time.

Mr. Chairman, I demand a recorded vote.

Mr. Chairman, I claim the time in opposition to my friend's misguided amendment.

Mr. Chairman, this is incongruous with the rest of the discussion we have had. It is consistent in that it is an attempt to say that people who have been harmed won't be able to recover, and it makes it harder to recover; and it protects the physicians--and the people--who basically are determined to have been negligent.

But, it says that, it is an affirmative defense to any healthcare liability claim--that is not just to a doctor. A healthcare liability claim could be to a nursing home or a medical device company--where the defendant complied with a clinical practice guideline developed by a national or State medical society or medical specialty society that is applicable.

They have just argued that for the plaintiff to have an expert witness, that expert witness has to come from the State where the action is brought, or a contiguous State. But, for the defendant, you can have a national practice guideline as an affirmative defense. So when you are in Memphis, you can't get an expert witness from Harvard or the University of Michigan or the University of Southern California because those States aren't contiguous, but the physician could get a medical society's or a national society's perspective and have it be an affirmative offense.

It is inconsistent. The whole purpose of this law is inconsistency, to give an advantage to those who have much and who do harm at the expense of those who have been harmed and have less. We see this continual attack on the poor and the injured.

In the healthcare bill, we talk about less opportunity because of diminution in Medicaid for the poor, disabled, seniors, and pregnant women to get healthcare. Here, we are talking about people who have been injured--actually, in fact, injured. And we are saying that a medical society's rule should be an affirmative defense, no matter where they are. We limit the experts you can have, and we limit the damages you can collect.

And this isn't to some specious group. This is to people who have actually been injured, and the juries in their home districts have found them to be plaintiffs who proved by a preponderance of the evidence that the defendant tort fees, or doctor, nursing home, or medical device company, breached the standard of care to which they were held to. It is giving them protections of the law given by Washington, almighty Washington.

Once again, I submit to you that the swamp is not being drained but is overflowing to flood the courthouses and not allow justice to come to those who have been harmed by negligence. For time and memorial, it has been the province of the States, the Tenth Amendment. Tort liability and court systems should be determined by legislators and bar associations, maybe medical societies, but back home, not national medical specialty societies or national medical societies as defenses, which is what this particular amendment brings forth.

I heard my friend from Tennessee say that in Tennessee, 60 percent of the verdicts go to lawyers. That is not true. He first talked about a law passed in 2008, that limits attorneys' fees. So since then, it certainly has not been 60 percent, and even before then it wasn't 60 percent. The typical contingency fee is a third, and nothing if you don't win, and there are great expenses incurred.

This is closing the courthouse door to injured parties who juries have found to be injured and limiting their access to recovery. This allows a national medical society to be a part of a fraternity to give an affirmative defense to another frat brother.

I oppose the amendment, I oppose the bill, and I am in favor of an open and free court system that punishes malfeasance and rewards those who have been injured by people who do not practice up to the standard of care that is dictated for them in their own State.

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

Mr. Chairman, I thank Mr. Goodlatte for his honest testimony and submitting it. For that reason, among others, I will be voting ``no'' on this amendment, and I hope that it will be found to be ``no'' by the Chair. Because when the chairman of the Judiciary Committee, a fine Republican lawyer, says that the amendment is beyond what they intended, it shouldn't really be part of the bill.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I thank the gentleman for yielding.

Mr. Chairman, I would say to my colleagues that this is about bad medicine, not good medicine, and it is about undermining good healthcare, as we have seen in the TrumpCare saga, causing some 49 million people to lose their insurance. Here we go again.

I would offer to say that the most difficult, hurtful, and harmful aspect of this particular legislation is that it would make it more difficult for plaintiffs to seek redress for medical injuries that have been proven in court.

In addition, it proposes to make dangerous and potentially unconstitutional changes to our Nation's Federal system, intruding on State sovereignty, the very thing that Republicans seem to relish and to support, because this bill attempts to preempt the several areas of tort law that have been traditionally reserved to the States.

I would tell my good friends in Tennessee and West Virginia: Deal with your States, just as other individuals deal with their own States.

This bill, as well, has a very difficult impact on medical malpractice. Because it was written so vaguely, the broad language sweeps into not only doctors and other medical professionals, but hospitals and clinics and almost every entity that contributes in any way to making any healthcare product or service available. That clearly impacts the healthcare of Americans.

When your child is injured through no fault of their own or your own, you need relief for that child. Interestingly enough, the American Bar Association that represents all lawyers, trial lawyers, of which there is an attempt to impugn their work, contempt for trial lawyers and the good work that they do. But the ABA says they are opposed to this bill, and they represent lawyers who fight every day to make sure the injustices don't happen.

But here is the real cause of my angst for this particular bill: ``Medical Error Leaves Family With Unanswered Questions.''

``Olivia was a senior in high school in Santa Monica, California, an accomplished scholar, actress, and musician who had earned early acceptance to Smith College.''

``Olivia was born with a congenital heart condition.''

She was going into college, but had a condition that caused her to go into the hospital. When she went in, she had a small procedure. Her vitals were dropping. Hospital staff waited more than 10 minutes before attempting resuscitation, but it was too late. She remained in a coma and died.

Mr. Chairman, I include the article in the Record.

Medical Error Leaves Family With Unanswered Questions

Research has found that 440,000 Americans die every year

from preventable medical errors each year.

Olivia was a senior in high school in Santa Monica,

California, an accomplished scholar, actress, and musician

who had earned early acceptance to Smith College.

Olivia was born with a congenital heart condition that was

monitored throughout her childhood.

The fall that Olivia was supposed to start college, she

underwent a routine procedure to help doctors figure out if

she could be considered for a surgery that would improve her

condition.

The procedure was completed without complications, but

while Olivia was still under anesthesia, a cardiology fellow-

in-training pulled the catheter lines, causing Olivia's heart

rate, pulse, and blood pressure to drop rapidly. Even though

her vitals were dropping, hospital staff waited more than 10

minutes before attempting resuscitation. But it was too late.

Olivia would never regain consciousness and died that

winter, never having lived her dream and attending college.

Her future was stolen from her, and immediately her family

tried to understand what had gone wrong. They began to ask

questions on how this could have happened, but they were

given very few answers from the hospital.

Finally, the hospital gave her family incomplete medical

records to sift through and find answers. They sought the

help of an attorney because, despite their best efforts, they

still did not fully understand what caused their daughter's

death. But due to California's out dated $250,000 cap on

medical negligence damages, it was nearly impossible to find

one.

Olivia's life was cut short by a preventable medical error,

and unfortunately, she is not alone. In the U.S., preventable

medical errors are the third leading cause of death.

Our focus should be on improving patient safety and

preventing medical errors, not limiting the rights of injured

patients and their families. Lawmakers who seek to limit the

accountability of health care providers are seeking to limit

our rights and our avenues to justice.

Don't our loved ones deserve better?

Mr. Chairman, what do you want families to face--no relief? Or do you want these constant errors to go unrecognized and reconciled? This bill will do that by denying the ability.

It provides immunity for healthcare providers who dispense defective or dangerous products. It makes it harder for victims to attain adequate legal representation, and it imposes a risk or loss on victims rather than wrongdoers. This bill undermines healthcare and it undermines good healthcare.

Mr. Chair, I include in the Record a letter from the American Bar Association opposing this bill.

American Bar Association,

Washington, DC, February 27, 2017.

Re Concerns Regarding H.R. 1215, the ``Protecting Access to

Care Act of 2017.''

Hon. Bob Goodlatte,

Chairman, Committee on the Judiciary, House of

Representatives, Washington, DC.

Hon. John Conyers, Jr.,

Ranking Member, Committee on the Judiciary, House of

Representatives, Washington, DC.

Dear Chairman Goodlatte and Ranking Member Conyers: On

behalf of the American Bar Association, which is the largest

voluntary membership organization of legal professionals in

the United States, consisting of more than 400,000 members

from all 50 states, the District of Columbia and other

jurisdictions, I am writing to express our opposition to H.R.

1215, the ``Protecting Access to Care Act of 2017.'' I

understand that your committee is scheduled to mark up this

bill as early as tomorrow.

For over 200 years, the authority to determine medical

liability law has rested in the states. This system, which

grants each state the autonomy to regulate the resolution of

medical liability actions within its own borders, is a

hallmark of our American justice system. The states also

regulate the insurance industry. Because of the roles they

have played, the states are the repositories of experience

and expertise in these matters. Therefore, the ABA believes

that Congress should not substitute its judgment, as is

proposed in H.R. 1215, for the systems that have evolved in

each state over time.

Specifically, I would like to share with you the ABA's

concerns and other views regarding key provisions in the

proposed legislation relating to damages, proportionate

liability, and contingent fees.

Damages. The ABA believes that compensatory damages should

not be capped at either the state or federal level, and, as a

result, we have serious concerns regarding Section 3(b) of

H.R. 1215 that would cap noneconomic damages for a

plaintiff's injuries at $250,000 regardless of the number of

parties against whom the action is brought or the number of

separate claims or actions brought with respect to the same

injury. For more than thirty years, the ABA has studied the

research on federal and state legislative efforts to impose

limits on noneconomic damages, including pain and suffering.

Empirical research has shown that caps diminish access to the

courts for low wage earners, like the elderly, children, and

women; if economic damages are minor and noneconomic damages

are capped, victims are less likely to be able to obtain

counsel to represent them in seeking redress.

Those affected by caps on damages are the patients who have

been most severely injured by the negligence of others. These

patients who reside in communities around the country should

not be told that, due to an arbitrary limit set by members of

Congress in Washington, DC, they will be deprived of the

compensation determined by a fair and impartial jury. The

courts already possess

and exercise their powers of remittitur to set aside

excessive jury verdicts, and that is the appropriate solution

rather than an arbitrary cap. For these reasons, the ABA

opposes those provisions in H.R. 1215, such as Section 3(b),

which would place a dollar limit on recoverable damages and

operate to deny full compensation to a patient in a medical

liability action.

Proportionate Liability. Section 3(d) of H.R. 1215 would

create a ``fair share rule'' under which each party would be

liable only for its share of any damages, and, as a result,

the provision would preempt existing state laws that provide

for joint and several liability in medical liability cases.

The ABA believes that, at the state level, the laws providing

for joint and several liability should be modified to

recognize that defendants whose responsibility is

substantially disproportionate to liability for the entire

loss suffered by the plaintiff should be held liable for only

their equitable share of the plaintiff's noneconomic loss.

Although the ABA supports this principle and encourages other

improvements to the tort laws at the state level, it opposes

federal preemption of the medical liability laws of the

states and territories. Therefore, the ABA opposes Section

3(d) to the extent that it would preempt existing state laws

and to the extent that it would apply a proportionate

liability rule to all damages, not just the plaintiff's non-

economic damages.

Contingent Fees. Section 4(a) of H.R. 1215 would empower a

court to reduce the contingent fees paid from a plaintiff's

damage award to an attorney, redirect damages to the

plaintiff, and further reduce contingent fees in cases

involving minors and incompetent persons. The ABA opposes

sliding scales for contingent fees and other special

restrictions on such fees. In 1985, the ABA created a Special

Committee on Medical Professional Liability (``Special

Committee'') to study the initiatives proposed at that time

in an Action Plain of the American Medical Association

Special Task Force on Professional Liability and Insurance.

Among the initiatives was a recommendation of sliding scales

on contingent fees, having effects comparable to the caps

proposed here. After review, the Special Committee concluded

the following:

``A sliding scale for contingency fees in medical

malpractice litigation may very well reduce total awards for

patient-victims by depriving them of representation by a

trial lawyer sufficiently skilled at obtaining the highest

appropriate award. Mandatory sliding scale systems could also

inhibit claimants' access to the court system by limiting the

availability of counsel. And imposing sliding scales only in

medical malpractice cases would, in effect, create different

level of skills among available counsel for plaintiffs in

medical malpractice cases from those available to claimants

in other tort cases.''

As a result of this finding, the ABA adopted a policy in

1986 that ``no justification exists for imposing special

restrictions on contingent fees in medical malpractice

actions.'' Therefore, the ABA opposes the limits on

contingent fees contained in Section 4 of H.R. 1215.

The American Bar Association remains committed to

maintaining a fair and efficient justice system where victims

of medical malpractice can obtain redress based on state

laws, without arbitrary or harmful restrictions. We offer

these perspectives for your consideration as you mark up H.R.

1215.

Sincerely,

Thomas M. Susman,

Director, Governmental Affairs Office.

Mr. CHAIR, as a senior member of the Judiciary Committee, I rise in strong opposition to H.R. 1215, the so-called ``Protecting Access to Care Act of 2017.''

I oppose this misguided and ill-considered legislation for several reasons.

Specifically, the bill before us should be rejected because:

1. H.R. 1215 violates state sovereignty;

2. H.R. 1215 applies well beyond medical malpractice;

3. Unjustifiably caps noneconomic damages, which will have a disproportionately adverse impact on women, the poor, and other vulnerable groups.

4. Provides unjustifiable immunity for health care providers who dispense defective or dangerous pharmaceuticals or medical devices;

5. Imposes an excessively short statute of limitations period;

6. Makes it harder for victims to obtain adequate legal representation; and

7. Inequitably imposes the risk of loss on victims rather than wrongdoers.

For over 200 years, the authority to determine medical liability has rested in the states.

This system, which grants each state the autonomy to regulate the resolution of medical liability actions within its own borders, is a hallmark of our American justice system.

H.R. 1215 would preempt state law in all 50 states with a rigid, uniform set of rules designed to make it more difficult for malpractice victims to obtain relief in the courts.

Victims injured by the negligent conduct of others, who have lost limbs, suffered traumatic brain injury, or lost their vision following medical procedures should not be subject to additional burdens of a possible limited recovery, currently available under state patients' bills of rights and other protections under the Affordable Care Act.

The definitions in H.R. 1215 are written in such vague and broad language as to potentially sweep in not only doctors and other medical professionals, hospitals and clinics, but also every entity that contributes in any way to making any health care product or service available, including insurance companies, pharmaceutical manufacturers, health product manufacturers, pharmacists, nursing homes, assisted living facilities, and mental health treatment centers, and drug and alcohol rehabilitation facility, among others.

H.R. 1215 will do nothing to strengthen protections for patients.

It goes in the opposite direction, by excusing the health care industry from accountability for carelessness, and shifting the burden for shouldering the consequences of preventable medical injury to the injured patients, their families, their employers, their insurance companies, and taxpayers.

Current provisions of the Affordable Care Act prohibit insurance companies from denying coverage for preexisting conditions, mandate coverage for young adults and children under the age of 26, and secure lifetime coverage caps, ensuring patients receive the care they need.

Empirical research has shown that caps on damages, such as those envisioned by H.R. 1215, diminish access to the courts for the most vulnerable, such as low wage earners, like the elderly, children, and women.

The bill arbitrarily caps so-called ``non-economic loss''--which sweeps in essentially everything that is not loss of salary or additional medical expenses--at $250,000 for the patient's lifetime, punishing those patients with the most devastating, life-altering injuries.

The bill forces the injured patient to take the amounts received for future expenses resulting from the injury in a ``structured settlement,'' which may not match up with the patient's actual needs as they arise, and would further reduce the amount the careless health care provider actually pays.

Preventable medical errors are the third-leading cause of death in the United States, with an estimated 440,000 deaths each year following a medical error or hospital-caused infection during a hospital stay.

Addressing this problem must be a national priority.

And although policies to promote and require safer practices are key to this effort, that is insufficient.

We cannot assign a government monitor to every hospital operating room and every doctor's office.

Effective protection should also include enabling patients and their families to hold health care providers accountable for errors that cause harm.

H.R. 1215 would unfortunately take several major steps backward from this goal.

The bill twists important protections found in many state laws into an additional legal hurdle.

An extended statute of limitations protection allows patients who do not discover their injury until much later, sometimes many years after the medical procedure or intervention, to still have a change to seek legal help.

But in the bill, the period in which an injured patient can seek legal help is actually shortened to one year.

The bill cuts off a patient injured as a young child if their family fails to bring legal action on their behalf, long before they are old enough to legally act on their own behalf.

This legislation would impose various restrictions on medical malpractice lawsuits, causing these restrictions to apply regardless of how much merit a case may have, the negligence at issue, or the severity of the issue.

If economic damages are minor and noneconomic damages are capped, victims are less likely to be able to obtain counsel to represent them in seeking redress in these personal injury malpractice cases that often operate under contingency fee.

Those affected by caps on damages are the patients who have been most severely injured by the negligence of others.

These patients who reside in communities around the country should not be told that, due to an arbitrary limit set by members of Congress in Washington, DC, they will be deprived of the compensation determined by a fair and impartial jury.

The courts already possess and exercise their powers of remittitur to set aside excessive jury verdicts, and that is the appropriate solution rather than an arbitrary cap.

I am concerned that H.R. 1215 would put patient safety at higher risk, by significantly undermining the accountability of those who provide patients with medical care.

H.R. 1215 undercuts patients in situations in which carelessness or misconduct by several health care providers combines to injure the patient.

It arbitrarily ``divides'' blame among those actors and then if one of them evades accountability for any reason, the others who caused the injury are excused from having to make up the difference, and the injured patient is short-changed.

H.R. 1215 shifts accountability away from the careless health care providers who caused the injury and onto ``collateral sources,'' such as the patient's insurance company or employer, or the government, that pay for part of the patient's medical expenses or other expenses resulting from the injury.

In effect, these other sources provide involuntary free insurance to careless health care providers.

The bill excuses doctors and other health care providers from any responsibility of looking into the safety and effectiveness of any medication or medical product, so long as it has been approved by the

Mr. Chair, I thank the gentleman very much. I think the question to the gentleman from Michigan, and the gentleman's comments from Iowa, is the question of good medicine, and additional tests may, frankly, just be good medicine.

Maybe, Mr. Chair, Mr. Conyers would agree that we should gather about insurance reform and capping premiums so that we can help our doctors. And I would assure you that they would be very happy on that.

But to the gentleman's point, I'm sorry to say he was incorrect, because we note that there are almost 20 States that have a variety of noncaps on certain aspects, and now the Federal intrusion will come in and now tell them where they do not have caps, that they have to have caps.

In fact, he is incorrect, and this bill does skew the medical service or medical treatment in our States.

Mr. Chairman, I have an amendment at the desk.

Mr. Chairman, I am pleased to offer this amendment with Dr. Michael Burgess, also a member of the House Rules Committee, and also a gentleman from my home State of Texas.

The goal of our amendment is to strengthen the underlying legislation by clarifying the point at which the statute of limitations begins to run.

In Texas, the statute of limitations begins to run from the date the alleged negligence occurs or date of last treatment. This is a certain date that does not leave room for controversy. I believe aligning the underlying text with this approach will benefit both physicians and patients to clarify exactly where harm might occur.

My amendment clarifies that when the date of the breach or tort is known, the statute runs from that date. When the date of the breach or tort is not known, the statute runs from the last date of treatment. By this method, certainty is provided to defendant, plaintiff, and the court. Easy understanding. For example, if there is a surgical mishap, the statute would run from that date. On the other hand, if the injury is from the prescription medication over a long period of time, it would run from the date of last treatment.

I am pleased that the Texas Medical Association, the Texas Alliance for Patient Access, the Health Coalition of Liability and Access, as well as the National Physicians' Council for Healthcare Policy support this process and this amendment. I hope my colleagues on both sides of the aisle will support this commonsense, reasonable reform that comes to us today in an amendment.

I thank Chairman Bob Goodlatte from Virginia and his awesome staff for their work to make sure this amendment and the underlying legislation conform with their ideas consistent with the legislation.

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

Mr. Chairman, perhaps the debate that the gentleman from Iowa (Mr. King) had was completely clear, which I would disagree with that statement. The gentleman from Iowa stated very clearly that there are surgeries, there are procedures, and there are processes that cost the Federal Government hundreds of millions, and the gentleman even went into the billions of dollars, which are parts of practices of medicine that doctors do as a defensive part of medicine to avoid exactly what we are talking about: getting sued. It is costing the Federal Government an enormous amount of money.

The gentleman did refer to two Members of Congress from Texas. We will see how they vote.

But the clarifying amendments that we are offering now, amendment No. 1 and amendment No. 2, come directly from negotiations with and understanding with the Texas Medical Association and the National Physicians' Policy Council to ensure that, in fact, the compliance is made that people not only in Texas, but also in other States, would have that would offer a physician the ability for them to use their knowledge, their training, and their expertise as opposed to practicing defensive medicine that harms every single taxpayer. That is why we are offering this today.

I am delighted. I believe what we have done is right.

Mr. Chairman, I yield such time as he may consume to the gentleman from Iowa (Mr. King).

Mr. Chairman, I believe the gentleman, Mr. King, has argued the point very successfully, and that is we believe it is in the best interests of not only the taxpayers, but physicians, physicians who have used their training, their expertise, and their knowledge to perform the necessary missions that are necessary. When those physicians do make mistakes--and mistakes will happen--then we believe that the rights of those that are reported in California and Texas would be consistent with those that would be great for the country. We are willing to share, and we appreciate the opportunity to present this.

Mr. Chairman, I would ask my colleagues to support this amendment that I have presented today, and I yield back the balance of my time.

Mr. Chairman, I have an amendment at the desk as the designee of the gentleman from Texas (Mr. Burgess).

Mr. Chairman, I offer my thanks not only to Chairman Bob Goodlatte, but also the distinguished gentleman from Iowa (Mr. King) for his work on behalf of all Members on the floor today, for his work not only for the Judiciary Committee, but people of faith and confidence that this country can address the issues and needs.

Mr. Chairman, I offer this amendment with Dr. Michael Burgess, who is also from my home State of Texas as well as a member of the Rules Committee.

The goal of our amendment is to clarify that healthcare liability claims covered by the legislation include safety, professional, and administrative services directly related to healthcare. In other words, we are bringing in the entire scope, not just necessarily the medical procedure.

I was glad to see that H.R. 1215 adopts many of the reforms that States across this country have thoroughly tested in their efforts to improve medical liability law, including my home State of Texas.

Not all claims asserted against healthcare providers arise from the direct provision of medical care. My amendment addresses the full spectrum of healthcare claims by following the model that Texas has successfully implemented.

Common examples of administrative claims related to healthcare are cases for negligence involving credentialing fraud against hospitals and those serving on their professional committees. In these cases, the plaintiff typically is not a patient of the physician serving on the committee; however, there is significant exposure to liability for the physician.

Safety claims are another necessary component in the scope of this bill. In these cases, a patient's injury does not arise out of the rendition of healthcare, but pertains to the safety of the patient.

The Texas Medical Association, the Texas Alliance for Patient Access, and the National Physicians' Policy Council are among those organizations who not only support this narrowly tailored amendment, but also their support of the entire bill and the inclusions of this amendment.

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

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

Mr. Chairman, the gentleman I respect very much, not only the perspective that the gentleman holds, but perhaps some of his argument could be true.

Mr. Chairman, what we are trying to do is to balance out the opportunity for the American people to have access to healthcare where, many items, they are denied.

I was reminded by the gentleman, the young chairman of the Veterans' Affairs Committee, Dr. Phil Roe, who served his great State of Tennessee and the American people as an obstetrician and gynecologist, I was reminded of the facts of the case, as it were, where, when Texas passed this, counties all along our Texas borders received, instead of midwives and others who might perform these important services to deliver babies, all of a sudden medical professionals, doctors, came into play who had been shut out because of the fear of malpractice lawsuits against them. Texas added, in the first year, some 4,500 doctors who came to Texas knowing that it was a level playing field.

In this case, Mr. Chairman, we are arguing that the United States of America and the citizens would not have to pay outrageous amounts of money for defensive medicine, whereby physicians, in order to protect themselves and to protect themselves in a difficult circumstance, might order, as a defensive mechanism, excessive amounts of either X-rays or other procedures that really cost the government money instead of providing better healthcare.

This has been an advantage in the State of California, and in the State of Texas, where physicians use not only their training and their professional conduct, but they use what is in the best interest of the patient. That is why we are here today.

Mr. Chair, I yield such time as he may consume to the gentleman from Iowa (Mr. King).

Mr. Chair, I yield back the balance of my time.

Mr. Chairman, I rise today in support of H.R. 1215, the Protecting Access to Care Act of 2017, a much needed piece of legislation aimed at reforming medical malpractice law in order to help drive down the cost of providing healthcare and, thereby, making it more affordable for all Americans.

I had the privilege of practicing medicine in the great State of Tennessee for 31 years before coming to Congress. The one thing that took away some of the joy from that practice was the threat of frivolous lawsuits.

Because of trial attorneys, over the years, the premiums for malpractice insurance have ballooned to levels that make it difficult for providers to practice and are driving more people out of practice, away from small practices, and into large hospital systems just so they can survive as a practitioner. Worse still, the jury awards aren't going to the victims of actual malpractice.

In Tennessee, prior to implementing some malpractice reforms, over half the premium dollars were paid out to attorneys, and less than 40 cents of every dollar paid out have gone to people who have actually been injured. So we are not compensating the injured party.

Thankfully, States like my home State of Tennessee are taking action and have enacted much-needed reforms in the last decade, and the costs associated with providing care have plummeted since then. In 2008, the Tennessee Medical Malpractice Act was signed into law and created requirements that the plaintiff in a healthcare liability action provide the defendant with a pre-suit notice of the claim as well as a qualified expert to review the case and certify it has merit.

Adding onto these reforms, in 2011, the Tennessee Civil Justice Act was signed into law, and it included a $750,000 cap for noneconomic damages and a cap on punitive damages at the greater of twice the compensatory damages or $500,000.

With these changes, between 2008 and 2014, the number of medical malpractice lawsuits in Tennessee decreased by 36 percent, from 584 to just 374. And, Mr. Chairman, between 2009 and 2014, the annual medical malpractice premium for an OB/GYN doctor like myself decreased from $52,000-plus to $33,000-plus, nearly a $20,000 decrease in premiums per year.

Those of us who were here in 2009 when the Affordable Care Act was debated remember that President Obama acknowledged that the cost of defensive medicine was a bipartisan concern and something that he wanted to address. Despite the fact that our legislation is modeled on a California law that has stood the test for 40 years through both Republican and Democratic Governors, Democrats made no serious attempt to address medical malpractice as their healthcare bill was pushed through, which is yet another flaw of the ACA.

Today's bill is common sense. With these reforms, we will ensure patients, not trial attorneys, are compensated for legitimate malpractice claims--and there are legitimate claims out there. But we will also prevent frivolous litigation from moving forward.

For those concerned about the 10th Amendment, this bill respects States' rights and only subjects claims with a Federal nexus to this law, while giving a great deal of latitude to States to act in their own accord.

Mr. Chairman, I loved what I did while I was in practice. I had the chance to deliver about 5,000 babies, and it never felt like a job. It is just what I did and enjoyed doing. But at a time when healthcare costs are spiraling out of control, an easy fix like H.R. 1215 just makes sense and is just another piece of the puzzle to help the costs of healthcare go down.

I strongly support the much-needed reforms in this legislation, and I urge my colleagues to vote in favor of final passage.

One final thing, Mr. Chairman. I have a list here of our premiums in the State of Tennessee, and under every specialty listed here--and there are numerous--there were dramatic decreases in each of these.

Mr. Chairman, I have an amendment at the desk.

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

Mr. Chairman, medical malpractice lawsuits in this country have gotten out of hand, which is hurting both providers and patients. Something must be done.

I have spent 31 years practicing medicine in Tennessee before coming to Congress. In that time, I saw my medical malpractice insurance premiums increase from $4,000 a year to over $50,000 a year, by the time I left practice.

Why were the premiums so expensive? My practice group took everyone: private insurance, Medicare, Medicaid, TRICARE, and the uninsured. Some practices limit their patient populations, but when you are in rural Appalachia, you take all comers.

The reality is, when you are taking care of patients with elevated risk, you get more frequent negative outcomes, increasing your risk for lawsuits, and this creates an issue for patient access to care.

Finally, right when I was leaving practice in 2008, Governor Haslam signed into law some of the best reforms we have in Tennessee, in the Tennessee Medical Malpractice Act, which created a 60-day notice statute and a certificate of good faith certifying a case has merit before it can be filed.

In 2011, Governor Haslam then signed the Tennessee Civil Justice Act into law, which contained a restriction on who could testify as an expert witness in medical malpractice litigation.

Too often, physicians practicing medicine are pitted in litigation against a professional witness who has gone to medical school but specialized in a different field and wasn't even licensed to practice in their State or a contiguous State. Mr. Chairman, that is absolutely wrong.

The fact is, these changes work. In Tennessee, we saw medical malpractice premiums reduced from 2009 to 2014 by between 25 and 40 percent, depending on the specialty. OBs saw average premiums reduced from over $52,000 to just over $33,000; neurosurgeons saw average premiums reduced from $49,000 to $35,000; cardiovascular surgeons saw their premiums go down from $44,000 to $31,000. There were other changes that were put into place that helped, including caps, but the fact was, this change had a major impact.

My amendment follows Tennessee's law and strengthens the changes contained in the underlying text of the bill, H.R. 1215, by adding further restrictions to those individuals who would qualify as an expert witness for medical malpractice litigation. My amendment limits who can be called as an expert witness, not only by the individual's professional accreditation, but also by his or her geographic location.

The fact is, as Tennessee's law proved, we needed medical professionals from the area where the incident in question occurred to testify as an expert, not a foreign jurisdiction hundreds of thousands of miles away. If that proves to be impossible, the court can waive this requirement if a witness that fits these criteria is otherwise unavailable.

Mr. Chairman, no one knows the people or healthcare providers in an area better than the people and healthcare providers in that area. Whether testifying for the plaintiff or defendant, it is important that those individuals called as experts really know the people in the area and aren't simply flown in from a faraway place just to get a paycheck.

We all want improved quality and lower costs of care. Reforming the litigation process is a step in the right direction.

Mr. Chairman, I encourage Members to support my amendment, and I reserve the balance of my time.

Mr. Chairman, where the subsidies were going in our State were to the lawyers, since they got over 60 percent of any medical malpractice settlement. The poor patients got less than forty cents on the dollar.

Mr. Chairman, I yield 1 minute to the gentleman from Iowa (Mr. King).

Mr. Chairman, I wish the damages did go to patients in Tennessee. They don't. The majority goes to lawyers.

Mr. Chairman, I yield the balance of my time to the gentleman from Kansas (Mr. Marshall), my good friend and a fellow OB/GYN.

Mr. Chair, I yield back the balance of my time.