Floor Statements

Mr. President, I ask unanimous consent that there now be a period of morning business with Senators permitted to speak for up to 10 minutes each.

Mr. President, I ask unanimous consent that the order of November 15, 2005, with respect to S. 1042, S. 1043, S. 1044, and S. 1045 be vitiated.

I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 472 submitted earlier today.

I ask unanimous consent that the resolution and preamble be agreed to en bloc, the motion to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record.

I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 473 submitted earlier today.

I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of H. Con. Res. 335, and the Senate proceed to its consideration.

Mr. President, I ask unanimous consent that the concurrent resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record, without further intervening action or debate.

Mr. President, as in executive session, I ask unanimous consent that the nomination of George McDade Staples, PN 1361, be discharged from the Foreign Relations Committee and placed on the calendar.

Mr. President, when the Senate completes its business today, I ask unanimous consent that it stand in adjournment until 9:30 a.m. on Thursday, May 11. I further ask that, following the prayer and pledge, the morning hour be deemed to have expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and the Senate proceed to the conference report to accompany H.R. 4297, the Tax Relief Extension Reconciliation Act, as under the previous order.

Mr. President, tomorrow we will turn to the tax reconciliation conference report under the agreement reached. There will be a maximum of 8 hours of debate prior to a vote on the conference report. I filed cloture on the pending substitute amendment to S. 1955, the small business health plan bill. That vote will occur following the tax relief act vote and sometime before closing remarks.

Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

I have no objection to that.

Mr. President, in just a few minutes, at 10 a.m., the Senate will proceed to the vote on invoking cloture on the motion to proceed to the small business health plan bill. Chairman Enzi is here, and there will be a few minutes for closing remarks before that vote. If cloture is invoked, I hope we will be able to proceed to the bill today and begin debate on the substance of the legislation.

Today, the two party policy luncheons will occur between the hours of 12:30 and 2:15 p.m. Once we determine when we will be able to proceed to the small business health plan bill, we will then set up a recess to accommodate those two meetings.

Mr. President, today we will return to debate on several health care proposals. We had previously slated this week to consider two medical liability, medical malpractice reform bills, as well as the small business health plan bill reported by the HELP Committee. Because there was an objection to proceeding to each of these three bills, I was forced to file cloture last week on each of these bills on the motion to proceed. Thus, the first vote will be at 5:15 today on one of the medical liability bills and the second medical liability bill, if we do not get cloture on the first, to follow.

At 5:15, the vote will be on the Medical Care Access Protection Act of 2006, S. 22. If cloture is not invoked on that comprehensive bill, the Senate will then immediately vote to invoke cloture on the motion to proceed to S. 23, the Healthy Mothers and Healthy Babies Access To Care Act. That second bill is similar to the first, S. 22, but limits itself to litigation and focuses just on obstetrical and gynecological care.

If the Senate is not able to turn to either of these pieces of legislation, the next vote we will have will be tomorrow morning, Tuesday morning, on cloture on the motion to proceed to S. 1955, the Health Insurance Marketplace Modernization and Affordability Act. This is the bill reported by Chairman Enzi's committee called the small business health plans bill. The bill is intended to aid small business owners by giving them more power to negotiate for affordable insurance for their employees and their families.

We have set aside debate throughout the day today to allow Senators to speak on any of these three health care measures. I look forward to the debate on each of these issues--each very important--as we look at the overall affordability of health care, the access to health care, as well as the quality of health care for all Americans.

Mr. President, at this point I would like to briefly extend some comments I made at the end of last week on the issue of the medical liability bills that are before this body.

On Friday, the Senate filed cloture on the medical liability reform bill--or actually two bills--and we will vote on at least one of those bills today, this afternoon. All of this centers around the fact that our broken medical liability system is hurting every American, every patient, every physician, and the health care system. But the important thing is that it hurts every American. It is an issue that, as a physician as well as a Senator, concerns me deeply. Indeed, it needs to concern and should concern every single American who is walking or will walk into a doctor's office. That is because every American is suffering from the high costs which are totally unnecessary and, in many ways, frivolous and out of control.

A litigation lottery system is what it really is that we suffer from today. Each year, health care costs are rising three to four times faster than the average American's paycheck, and that is in part--in part--driven by this litigation lottery system, a system that is driving up costs, and when it drives up costs, it drives up the premiums that not just doctors pay, because those premiums are passed on to the patients and potential patients, but it drives up costs, diminishes access to health care today, and thus diminishes quality for every American. Access to quality issues are equally important to the costs, but they are all interrelated.

Innocent doctors and patients are being punished because of the greed of a few opportunistic trial lawyers who are exploiting the system the way it is currently configured. Thus, the legislation that we propose and that we hope we will be able to debate on the floor reforms that system--it fixes the system--with a sense of fairness and commonsense reform.

This is an issue which I have been compelled to bring back to the floor again and again, really on principle, because it is the right thing to do. In

the last Congress, in the 108th Congress, I attempted to bring medical liability reform to the Senate on three separate occasions. Each time, a minority of Senators blocked consideration and prevented an up-or- down vote on those pieces of legislation. Indeed, although we will have to see how the votes fall here in about 4 or 5 hours, they may do so again today. But I am going to remain determined to press for action on principle because it is the right thing to do. It boils down to the fact that health care dollars should be spent on patients and not on lawyers who are out abusing the system--on patients and not lawyers. It is a clear choice.

Last week, I talked a little bit about my own son Harrison who traveled with me to town meetings around the country a couple of years ago. We went to Florida, we went to Pennsylvania, and we went to Ohio and talked about a range of issues. Being a physician and a Senator, doctors would come up to me again and again and tell their stories about having to stop practicing their specialty, a neurosurgeon or an obstetrician who has to stop delivering babies, or actually moving out of Pennsylvania down to other States in the South or out of Ohio or out of Florida because they really had no choice. At the end of that trip, my son said: Dad, I know you love medicine and that is your life. My granddad was a family physician and loved it, and both my uncles are physicians. But why in the world, Dad, would you encourage me to go into a profession where everybody gets sued--not just once but again and again and again--even if they have done nothing wrong?

That is what hurts and also really scares me because it means we are going to lose a whole generation of good people, committed people who care about treating patients, who simply aren't going to go into the profession because they don't want to expose themselves or, more importantly, their own families to these frivolous lawsuits. It is happening.

I hope everybody listening to this debate over the next few hours and hopefully several days will ask their physicians, whoever they are-- pick up the phone and call them or e-mail or if you are going to the doctor's office ask them: Does this medical liability stuff really mean that you are unable to treat patients in the way you otherwise would? It really is affecting cost and access and quality? Just ask them, and I guarantee the answer will be yes.

Access to care. Across the country right now, one out of two counties does not have an OB-GYN. That means mothers or expectant mothers are having to drive extra miles, as fewer and fewer people deliver babies, in order to have their babies delivered. Three-quarters of neurosurgeons will no longer operate on children, in large part because of the number of lawsuits. Increasingly, neurosurgeons are not taking trauma calls at the local hospital wherever you live in the world today because they know by taking that trauma call, their malpractice premiums, their liability premiums skyrocket because of the likelihood, even if they give good care, of being sued.

I have seen it and heard about it, talking again and again to my own medical colleagues and in traveling across Tennessee. In Tennessee, 81 out of the 95 Tennessee counties don't have a neurosurgeon. Half don't have an orthopedic surgeon, an emergency physician, or an OB-GYN. Average malpractice premiums for Tennessee doctors have increased 90 percent--90 percent--in the last 6 years.

As a result of all of this, my colleagues in Tennessee tell me, or at least nearly three-quarters of them tell me--and in a recent survey-- that their medical communities already have a shortage of the high-risk specialties, the trauma specialists, the obstetricians, the neurosurgeons, and those same counties are having a hard time recruiting new physicians. Nobody is going to move into a county where those premiums are sky high and the risk of them being sued is so high.

We have to reform the system. We can do it with commonsense reforms. The reforms have been laid out in the legislation.

The nationwide picture is very similar. The AMA, the American Medical Association, says we have reached crisis proportions in 21 States, including Florida, West Virginia, Ohio, Pennsylvania, New York, and Tennessee. Families in these States are simply not getting the quality of care they need because of these out-of-control liability premiums.

Right now, if you talk to obstetricians, about one out of seven stopped delivering babies, and they point to the reason of the skyrocketing medical liability costs. We talk about the doctors and we talk about their premiums, but let's remember that as a result of those costs and premiums, you lose the access, you lose the availability. The excessive costs, the waste--it doesn't go down to the doctor-patient relationship; it doesn't mean you get better care. Ultimately, it is the patients who suffer. It is the American people who suffer--not the doctors, not just their premiums. Ultimately, it is the patient's care that suffers.

High-risk specialists. Again, I say this as a cardiac surgeon talking about my colleagues, but the neurosurgeons I mentioned are the ones who are getting hit the hardest. Emergency room staff are being depleted. That is a big concern. I will cite it again and again on the floor: If something happens to you driving home today, is there going to be a neurosurgeon there to take care of that head injury? Increasingly, it is less likely that you will have that sort of expertise there in the emergency room.

We know how to address this crisis. This is the good news. We know there are things we can do that work. Commonsense reform, based on principle, is not all that hard to do.

I was in Texas last month, about 3 or 4 weeks ago, talking to the doctors there, and they have seen the results of a reform movement that is alive and well and has had an impact. Since 2003, the rate of malpractice filings has declined by 80 percent in most major Texas counties. This year alone, the rate cuts by five major Texas insurers will save physicians nearly $49 million in premium payments. They say they save physicians $49 million and, remember, all of those premiums just get passed on to the American people and get translated into higher premiums that you pay for your monthly health care security. Between 3,000 and 4,000 doctors have moved into the State, into Texas, where just the opposite is happening in Pennsylvania and Ohio and Florida, where physicians are moving out of the State.

The Texas story is a true success story. Because of this inequity from State to State, we need a national approach.

As I mentioned, we will be voting in a few hours on the medical liability reform bills. These bills are a part of a larger vision of health care which is patient centered--patient centered--which is provider friendly, which centers on 21st century information and choice and an element of control. But this is a major piece in reaching that vision. We need our doctors and hospitals and offices to be places which they are intended to be--places of healing and not minefields for greedy, predatory lawyers who are simply exploiting a system that needs to be reformed.

Mr. President, I encourage my colleagues to vote today for cloture so that we can discuss both of these medical liability bills. My colleagues know well that the medical liability system does need reform, and as a physician and as a Senator, I know we can deliver these meaningful reforms, and I intend to do so. I hope we are given that opportunity. I encourage all of our colleagues to vote for cloture so we can address these bills.

Mr. President, briefly, because I know the Democratic leader has another statement to make, I am absolutely committed to completing and giving adequate time to complete what is a complex bill. As the Democratic leader implied, there are a lot of issues we need to talk about in this bill. I appreciate the spirit in which he and I are approaching the bill, in terms of allowing debate and amendment and also addressing issues about conference, to make sure--I know what his intent is--that the will of the Senate is expressed strongly in that conference.

I do encourage all of our colleagues to recognize that step one is debating the bill here on the floor of the Senate, getting it off the floor with a majority vote, and I would argue for a good comprehensive bill stressing the border and border security. What I would like to do, as I discussed scheduling with the Democratic leader, is to be on the immigration bill next week and the following week. That should give adequate time.

There was one last thing, at least on our side of the aisle. In terms of numbers of amendments, we are doing our very best to focus each and every day on the amendments which would be substantive amendments, to try not to have unnecessary amendments or amendments just for political reasons but substantive amendments coming to the floor. Hopefully, coming to the floor, people will continue work. People don't see that on the floor, but literally every day we are meeting looking at those amendments. So once we get on the bill, we can have a fair process, not a lot of unnecessary time spent figuring out what the amendments would be. I am confident that we can, working together, be on a bill that will be a comprehensive bill, that will be a bill reflecting the will of the Senate, by early next week.

Mr. President, I will set up those votes in a bit, but I want to speak to one of the issues that we will be voting on Monday night, and that is the medical malpractice liability issue which, in many ways, is destroying the practice of medicine today. As one who has spent longer in the profession of a physician/doctor than I have in politics, this is something that hurts me as I look to what it is doing to patients, to consumers, to all Americans as it drives up their health care costs unnecessarily, wastefully, but then, even more importantly than that, it affects access to health care. Literally, we have expectant moms today who are having to worry whether there will be an obstetrician there to deliver their baby.

We have right now people who should be worrying, if they are in an accident today driving to work or driving home from work, about whether there will be a trauma surgeon once they arrive at a hospital. That is the threshold we have reached, affecting access, affecting cost, and affecting availability of health care.

A couple years ago, I took my son Harrison, who is in college, to Ohio, Pennsylvania, and Florida. Those were the hot States during the last Presidential campaign. I took him to be

with him, and he observed a lot as we went to those three States.

It is interesting, those three States also happen to be three States that have been most dramatically impacted by the skyrocketing health care medical liability premiums. Because I am a physician, when I went to these town meetings or we would go to cafes, physicians would come up, their spouses would come up, their family members would come up and talk with me and pull me aside--Harrison would be at my side--and say: Dr. Frist, something has to change. My dad was a physician. I am in practice with my dad. Right now we are going to have to dissolve our practice because our health care liability malpractice premiums have gotten so high we simply cannot afford to stay in business.

Then the discussion would continue a little bit and someone else would come up, and Harrison would be listening--at the time studying pre-med as well as history--and they would say: Dr. Frist, right now I am going to get sued. I just got out of my residency, and I am going to get sued on average three times in the next 10 or 15 years, sued not just for $1,000 or $5,000 but for $1 million or $4 million or $5 million, even if I have done nothing wrong.

What hurt me about this is when we got back home after traveling around, Harrison took me aside and said: Dad, I know your dad--his grandfather, my dad--was a physician who practiced 55 years in family practice in cardiology in Middleton, TN. Harrison said: Dad, you love that noble profession of medicine, surgery, heart and lung transplants and healing, but why in the world would you encourage me, your son, to go into a profession that right now, based on what I have heard as we have gone around the country, is being destroyed by predatory personal injury trial lawyers and frivolous lawsuits?

It is a hard question to answer. I probably told him it's a noble profession and there's nothing greater than the healing process. But he looked at me and said: Dad, why would I subject my future wife and my family to lawsuit after lawsuit if I have done nothing wrong? Why would I jeopardize my own family no matter how noble that profession is?

I tell that story because it is personal in many ways, but I think it signifies why it is important for us to be allowed to proceed to debate how we can solve--probably not totally solve but help solve what has gotten out of control in our medical liability system today.

Across the country, rising medical malpractice premiums are driving doctors from the practice of medicine, limiting access to care. What that means is that your health care costs, my colleagues' health care costs, the American people, everybody's health care costs are driven up unnecessarily and access is diminished. Doctors leave the practice of medicine or they move to States where this may not be quite as big a problem, and when you need a doctor, they are not there.

Across the country, one out of two counties do not have an obstetrician/gynecologist to deliver a baby or to manage that complication from an expectant mom. Seventy-five percent of neurosurgeons today no longer operate on children, and an even higher number have made a decision not to take a trauma call at a hospital. These are highly trained neurosurgeons, surgeons who focus on the brain and the back, on the neurological system, which is usually damaged if you are in a motor vehicle accident or any kind of blunt trauma accident. They basically said: We are not going to take the call; why subject ourselves to these exorbitant, frivolous lawsuits that affect our access, access for our children, for our families.

My own State of Tennessee the other day was put on the crisis list, one of 20 States now in crisis; 81 out of 95 counties in Tennessee don't have a neurosurgeon; half don't have an orthopedic surgeon, an emergency physician or an OB/GYN.

So we see these unnecessarily high malpractice premiums driving doctors out of the State, out of the profession. The average malpractice premiums in my State of Tennessee have increased a whopping 89 percent in the past 6 years. Again, these premium increases drive up the cost of your health care.

Doctors pass on the premiums they have to pay to the insurance company and the insurance company passes it on to you, so it affects everybody's health care unnecessarily.

Without reforms, over two-thirds of Tennessee physicians report they are contemplating early retirement or just totally changing careers. Dr. Steven Stack, a 34-year-old emergency doctor from Memphis is moving to Lexington, KY, to escape the litigation lottery. He told me the following:

The high risk nature of my chosen speciality, the

associated predator tactics of the trial bar, and very

unreasonable and unfunded regulatory burdens imposed by

governmental agencies have robbed me of much of the

professional satisfaction I otherwise receive in caring for

the health of my patients. . . . A fair number of my friends

share my disillusionment and hope to leave the practice of

medicine as expeditiously as possible.

Dr. Stack and his friends he referred to are far from alone. We all hear it. We get the letters. We get the e-mails. We have the conversations.

Dr. Justin Hensley of Johnson City, TN, says:

As a Tennessee resident and having grown up in Knoxville,

it pains me that I will choose to do my residency and

practice in another State simply because the climate in my

State is unbearable. My fiancee, who is also a resident and

medical student, feels the same way.

The issue is even affecting the futures of medical students, the future of medicine, the people who will be delivering care to our children, to the next generation.

Patrick Emerson, writing from Memphis, reports:

As a medical student here in Tennessee, the issue of

medical liability is definitely a concern both to me and many

of my classmates. The issue is going to shape our decisions

in medicine drastically in the coming years, from what

speciality we pick to what tests we order for our patients.

Without reform, we are doing a grave injustice to our fellow

citizens of Tennessee by depriving them of cost-effective and

efficient care.

Patrick's story is one of the many stories that are pouring in. The bottom line: The system is broken and it needs to be fixed. The good news, on the optimistic side, is if we are allowed to, we can fix it. We can make this problem go away.

It is not just the bad doctors who are getting sued. People will say we have to have a strong medical liability system, strong medical malpractice system. I agree, I have been right in the middle of it. I have been right in the middle of where medicine is practiced, and with the complexity, the technology, the great miracles that can be done, is still subject to malpractice, still subject to medical errors--and I know that--and we need to have a fair, commonsense, balanced compensation system that punishes malpractice. But good doctors are getting dragged into this as well.

Consider this one statistic: Of those who have practiced in Tennessee for the past 10 years, in my profession, heart surgery, 100 percent of cardiac surgeons have been sued. Of those who have been in practice 10 years, 92 percent of orthopedic surgeons, bone doctors, have been sued; 70 percent of all doctors have faced legal action.

That is common sense, and the American people get it. But I am not sure all of our colleagues get it. Does it make sense or does anybody believe that all heart surgeons in Tennessee are bad or that all are committing malpractice, bad practice or that 7 of 10 doctors across the State deserve to be sued? Of course not. The system is out of control. The problem affects not just my State but patients and doctors from across the country. Rising medical liability premiums are increasing because of health care for every American. Again, it is common sense. The statistic is that 8 out of 10 doctors practice defensive medicine-- defensive medicine--to fend off these frivolous lawsuits, and it makes sense. Right now, if you know with almost 100 percent certainty or 70 percent certainty that you are going to be sued no matter what you do-- no matter what you do--what you are going to do is put a paper trail out there that will protect you in the courtroom. It makes sense. You want to protect yourself, and that is what you will do. You prescribe a few extra tests that are not necessary--something you wouldn't do otherwise. You prescribe an extra blood test, maybe an extra CAT scan, maybe an extra positron emission tomography, an extra fluorodeoxy with glucose, a

PET scan--unnecessary, totally unnecessary, but you do it because the likelihood is you are going to be sued. You do it to have that whole paper record there showing that you did the right thing. That is a cost. It is a huge cost, and it is a waste of money. It doesn't result in better patient care. It is a total waste.

Again, it gives me a sense of optimism because if you omit this waste--I would call it fraud--this abuse out of the system, everybody's cost of health care goes down.

It is estimated that the defensive medicine costs in this country are over $100 billion. Wasted money. It is not Government money, it is your money. It is the American people's money. It is not even your tax dollars, it is how much you have to pay for that health care premium. That is why, if you are uninsured, you can't afford an insurance policy, because the cost of your insurance policy is too high.

Last month, I was in Texas, and again it is remarkable because medical liability reform is alive and well there, and it is working. I talked to patients, I talked to doctors, and I talked to nurses, and it is working. Since 2003, medical malpractice claims, following their reform, have dropped by at least 80 percent in most Texas counties. I talked just moments ago about physicians fleeing States because of medical liability, and since their reform was put in place, 3,000 doctors haven't fled that State but are coming back into that State today. We need to get on board with that reform movement.

When children who are dying of cancer can't get the lifesaving surgery they need, when a mother is forced to drive hundreds of miles to a doctor just to have her baby delivered, when doctors who have spent years training, years training and sacrificing to give people hope are having to leave the practice of medicine, it is time for us to act.

In a few moments, I will be filing cloture on the medical liability bill, and on Monday we will have those votes. I know a number of my colleagues will come by today and on Monday to explain the legislation as well as make the case of the importance of that legislation. I urge my colleagues, for the sake of all Americans and every citizen who is either walking into a doctor's office now or who will walk into a doctor's office in the future, that we vote to move forward on this bill.

I have seen firsthand that we have the best medicine in the world. The fact that I was able to do heart transplants with the technology on a routine basis, the fact that I was able to do lung transplants on a routine basis or to use that positron emission tomography to make a diagnosis on the metabolic processes of the heart or the brain today is truly astounding because it translates into better health care for all. We have the best doctors, we have the best medical schools, and we have the best hospitals in the world. We have the best laboratories. We have the best universities and schools. I have been a beneficiary of that, and I have witnessed it. But we have a broken medical liability system, and it is bringing down that greatness. By pulling together, we are going to be able to deliver to the American people a system that works, and this will be a major step forward.

Mr. President, in a few minutes I will set up votes for next week on several measures that we began to discuss yesterday. Once we set the schedule for next week, we have some Senators who would like to make statements on those bills and other matters. Therefore, we provided this period today for that purpose.