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…
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. Chairman, I claim the time in opposition.
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.