I thank the gentleman from New Jersey and ask that he stay nearby because I want to have a conversation with him if I can eventually on this. I have had some very interesting conversations with constituents in my office for a period of…
I thank the gentleman from New Jersey and ask that he stay nearby because I want to have a conversation with him if I can eventually on this.
I have had some very interesting conversations with constituents in my office for a period of time now about this issue, ever since the bill was filed. Primarily the concept was that people come in and they are upset because of what they think are the consequences of this bill from whatever perspective they come.
Consumer groups come in on behalf of patients and talk about how unjust it is for the limitations that it puts on patients. Lawyers come in because they are concerned. They, of course, believe that they are doing the right thing in representing victims of malpractice. They believe that part of what they do that is noble and right is that they try to get people recovery so that they can continue on with their lives in some sort of respectable manner after some consequence or some
disaster has happened to them. And doctors come in because they think that the bill may be helpful to them because they do not want to bear the unlimited exposure to lawsuit damages and do not want their premiums rising through the roof. So we have those three groups sort of pitting against themselves, or some combination. But when you sit people down and talk to them, it is really easy to see that this bill is not about doctors, it is not about lawyers, it is not about patients, it is about insurance companies. It is about insurance companies and those others that you mentioned at the end of your remarks who somehow managed to get into a bill that they are billing as being a limitation on premiums for malpractice but managed to sneak in there immunity for themselves and total absolution from any liability for their malfeasance or their mistakes or their negligence or their wrongful acts even if they are deliberate. The fact of the matter is that that does not serve the American public at all. It does not serve any of those other three groups that we talked about.
I have any number, as I am sure you do, a number of friends that are doctors, physicians in different fields, ranging from those that have a very high risk factor to those that have a very small risk factor. There is not a one of them that when I engage them in conversation that does not have compassion for their patient. When you say to someone, as I did just the other day to a doctor, this particular doctor deals with people with cerebral palsy, an absolutely dedicated physician. I said to him, if one of your patients by virtue of your mistake was injured at a very young age and the consequences were that they were going to have this disaster for the rest of their lives, do you think that $250,000 would fairly compensate them?
They say, well, no, of course not.
I ask if they realize that in this bill that is the limitation that is put on that. And that women that get injured that may not be working, may be bringing up a family in a household, they do not have economic earnings from which they can then generate a recovery but they have the rest of their lives to go forward when they may then have to go out and try and earn a living and they may be stopped from doing that, do you think for someone in that consequence, that $250,000 is enough?
Well, of course not, was the answer. And right on down the line, example after example. I came in late, but I know you were giving some examples earlier.
Their answer back to me was, why don't you engage and try to do something that is reasonable? If you don't think $250,000 is reasonable, why don't you engage them in that? I tell them that the simple fact of the matter is that this is not about a conversation. We are more than willing to sit down and talk about what is fair and what is just. The problem is that the insurance industry and the HMOs and the others that are driving this piece of legislation and I think using the doctors as a tool in this by trying to get them to believe that their premiums will go down when they will not, and history shows that they have not and studies indicate that they are not intended to by this bill, that they try to get them involved in that instead of realizing that this is all about the insurance industry, all about the HMOs, all about those other manufacturers that want to be absolved from liability and they do not want a discussion. They want to try to generate the heat high enough so that you are either for it or against it. There seems to be a lot of that going on around here these days. They make a bill very difficult and absolutely without any compromise.
You will find out that when the bill comes to the floor tomorrow, they will not be asking for amendments to make it better or to improve it. They will not be asking for any prolonged debate to talk about all the aspects of this, not just premiums but how do we protect doctors from unlimited liability, how do we protect patients to make sure they get their just due without putting doctors out of business. None of that will be open for debate. It will simply be a vehicle for people to make a case, perhaps in the next election in 2004 or whatever or to show themselves to their benefactors that they are out there waving the flag on their behalf. That is unfair. It is unfair to patients, it is unfair to doctors, it is unfair to lawyers and it is unfair to the American public at large.
The fact of the matter is that if you couch it in terms that this is all about keeping premiums down, it is something interesting to note that in California, where this is supposedly the model for this whole program, in the 1970s when they put in a cap on recovery, the fact of the matter is premiums did not go down. The next 4 years they went up considerably, and since that point in time, they have been pretty much running the average of around the rest of the country. So that is a fallacy. In Florida, when the Florida legislation said to the insurance industry, well, then if we are going to pass a bill like this, you have to certify to us that premiums will go down, the insurance industry said, no, we won't do that. In Nevada the same thing happened out there where they talked about enacting severe damage caps. The insurance industry came out and said very clearly that they would still not lower premiums. The studies indicate and history indicates that the insurance industry makes its money primarily not from premiums so much as from the investment of those premiums into other vehicles, whether they are bonds and to a lesser extent stocks and other vehicles and generate income from that. When the market is down, as it is now, and they are not paying off as they are, when it goes down, then they have to jack up the premiums to get the profits to which they think they need to go on with their company. Then they have to tell somebody that it is not about insurance companies and profit because they know that will not be extremely profitable because everybody wants people to have a profit but they do not want necessarily to be gouged. So they cannot go out and tell people that we just want to get a higher profit and we are going to do anything, we are not going to take any decrease in our profits, but instead we are going to go out and get the doctors, they cannot say that. They turn around and they say, you know what the problem is here? The people that are subject to malpractice, the people that have lost something in their lives, they are the problem. They are getting too high a recovery. Obviously because they are represented by lawyers helping them get that recovery, then lawyers are bad people, too.
The fact of the matter is many times these are complicated cases. Something happens, and if a doctor makes a mistake, it is complicated, and it is difficult sometimes to find out just where that mistake occurred, which part of the process, which doctor or other health care person was involved in that. A suit might be filed to find out, to discover where that was. Then the people that are not involved are let out or the person who is responsible, their insurance company gets engaged in the situation. You would hope that this is a system we have structured to give that person a fair recompense for their injuries. That is the way that it is supposed to work.
The problem is of course that now they are putting up there, they are saying that this whole idea of somebody recovering is where the culprit is. There has not been any great increase in huge recoveries across this country. They cannot point to statistics showing that all of a sudden we have had a spike in incredibly high recoveries for people. And those few high recoveries are generally knocked down by appeals courts to a much more realistic number. It just happens that there was something in the course of that case that the jury got upset with, whether it was somebody trying to cover up something that was done or an insurance company failing to pay off on time, or something that caused them to get an award up there and courts generally ratchet that back.
But if we are not going to proceed on the basis that we have done in the past of having a system where somebody who through no fault of their own is seriously injured, looks to the person who was negligent, to the person who conducted the malpractice for a contribution, which they then in return insure against, then we have to find out what else it is that we are going to put in place for a system. If we think that we want somebody else to decide other than a jury as to what somebody's fair recovery is, then let us hear what it is.
Let us have a debate about that. Who should replace a jury of your peers in deciding that? If you think there should be a cap on the amount of money that people recover, let us have some experts as well as the general public engaged in the debate about what would a fair amount be, because you certainly need to take care of these people. We have decided as a society that the innocent part of that should not be the one that suffers the burden and goes without having any ability to sustain the rest of their lives. We have decided that we have to try and share that blame by making the person who has been negligent responsible and letting them insure for it.
Society has to have a replacement. We can complain about the system that we have all we want, but we should be having a debate instead about what changes in it we are going to make if we think that parts in it are not working. As I said in the beginning of my remarks, I have great sympathy for the doctors who feel they have to practice defensively, for the doctors who feel that their exposure is unlimited, for the doctors who insurance companies abuse by raising their premiums on the false pretense that it is the situation where people are getting too much for their injury. We have to sit down with people and say, what else are we going to put in place, how else are we going to make these decisions in a fair way so that people get fairly compensated for their injuries and so that we understand that doctors have to remain in practice and they have to remain in practice without the fear of being put out of business either financially or because they were constantly engaged in litigation.
I do not hear that kind of conversation coming from the other side of the aisle, from the majority. I frankly do not hear anybody saying we are going to sit down and try to iron this out. Did it go to committee? It went to committee, but people should not feel that there was an open dialogue in committee, that there was any deliberation and honest debate and suggestions about what changes might be made. It went to committee so that the majority who put forward the bill could ram it through on a straight party line vote and get it to the next level so we could do the same thing so that they would have some talking points to go back to their benefactors with and to campaign against and say like, oh my God, other people that don't vote for this bill want to put the doctors out of business, and we are the ones who want to save the doctors when in fact the premiums will not go down a stitch, the insurance companies will not allow the bill to be amended to put a requirement that if the recoveries go down, the premiums go down, and the fact of the matter really is it is all about the insurance companies, the HMOs and the others that are going to be shielded from liability and it is not about the doctors, not about the lawyers and, shamefully, it is least about the people that are really the ones that we should be focusing on here, the people that are injured through malpractice.
The best thing these insurance companies could do, one of the best things they could do is help doctors put in place some way to police those 5 percent of the medical profession that are responsible for 54 percent of the claims. It seems to me and I think others that that is one area to look at that would take care of a large part of the problem of legal actions and a large part of the problem with that small percentage of the premium increase that may be attributable to claims.
My recollection of reports and data shows that it is about half a percentage point on those premiums. But that would make sense. Find ways to hold accountable that 5 percent of doctors that have 54 percent of the claims, and make sure they are either reeducated so they are no longer guilty of malpractice, or move them out of the profession to someplace else where they are happy, to a less risky end of the business.
Then let us make sure we take a look at the insurance companies. If they are going to jack up prices every time their investment returns go down, then we have to look at the company industry and say something is wrong here. Doctors should not be subjected to these spikes in premiums just because the economy has gone down and that is where you invested all of your eggs, and now you are suffering a loss and you want to maintain your high profits, you are not satisfied with a lesser profit. Then we have to find a way to deal with that through insurance regulation.
Short of that, and if they are going to insist on putting that bill through, we would at least hope they would have provided some discussion about what is a fair amount; and $250,000, even by doctors accounts, is not a fair amount of a cap. We would have had some discussion about what are we going to do about policing those 5 percent of the medical profession that create 54 percent of the incidents that end up in lawsuits. And we would have done something with the fact of trying to work our way around so that doctors did not feel they were subject to legal suit in order for people to get discovery as to who is responsible, find some way earlier in the process for the facts to be known so that people could move forward, and have a good public debate about this so that everybody's interests were resolved.
That is not happening, my colleague from New Jersey, you know that very well; and I would just say to you that I would be happy to have a conversation with you on it if you want, but I think you would agree that we could have done a much better job sitting down as a full House, with a full complement of the committee, with all three parties, the Independents, the Republicans and the Democrats, and people representing the consumers, patients, the doctors, and the insurance companies, and talked about what is needed to be done in order for this to really be done correctly.
I think it is shameful we started out with this yelling and screaming contest, that it is all or nothing, there cannot be any reasonable conversation. Doctors feel they are put in the position of, gee, in order to save ourselves, we have to go along with this low cap, and we have to go along with the provisions of the bill that effectively make it difficult for people injured to even find legal representation, because it is going to be so expensive to proceed on that suit; and there will not be any compensation because the amounts have been capped and lawyers will not come on, and they will be without a lawyer.
Only one in eight people that are subject to malpractice now file a claim anyway, and I guess the insurance companies would like to collect those premiums from the doctors and have that one in eight number be even less. Their profits would be that much higher, but society would not benefit from it. People that were injured would still have to go through their lives with those egregious situations and without help; and I think that we should focus on making the situation better, not having a political battle here that does not allow for debate.
If the gentleman will yield, I think you take it back a step further. If you remember the debates about the Patients' Bill of Rights, where doctors and consumer-patients, consumer groups and others were together on this issue, understood that we needed to have protections against HMOs and the like, needed to be able to
file an appeal to an egregious situation, I think a lot of it stemmed from the insurance companies and HMOs at that point in time saying we have to get back the equation here, and the way we will do it is we will improve our financial situation, and we will try to drive a wedge between those patients and their doctors.
Where they finally have come together and have focused the light on us and we are losing ground on the Patients' Bill of Rights, we have to again drive that wedge, and the way we will do it is by telling doctors that their premiums are going up, because patients that are subject to malpractice are getting too much compensation for their injuries, which they cannot justify and cannot move in that direction.
It is shameful. As I say, the doctors, in my view, are good people with the right mind, the right heart on this thing. When you sit down and talk with them, they understand that they are being used.
Their first comment always is, well, why do the Members of Congress not talk about what would be the right amount, if any amount, to talk about fair compensation? Why do they not talk about what should have to happen before a claim is filed? Why do they not talk about reining in the insurance companies?
I said we are perfectly willing, but conversation needs two parties, and there is one party here. We are listening. We would be more than willing to talk. The other side is not willing to have anybody listen, and they are only willing to ram things through; and unfortunately, that is what you are going to see tomorrow, and I do not think anybody is going to be served by it.
Hopefully, the other body in this institution will have the wisdom to stop that and force it back; and then maybe, maybe if there is enough pressure from other groups, we can have a conversation trying to improve the situation for everybody's benefit.
I just want to thank the gentleman for taking the time this evening to allow for some debate, probably much more than we will get tomorrow on this, so we could have a full discourse on what is going on and what the content of the bill is and what the effects are going to be on people. I think tomorrow we will hear a lot of the standard positions that people are taking, one side or another.
This discourse hopefully allowed us to broaden that out a little bit and talk about some the specifics. I thank the gentleman again for taking the time to do it and showing his leadership.