the committee on the judiciary subcommittee on commercial administrative law will now come to order that objection the chair be authorized to clear a recess of the markup now recognize myself now for a short statement they will we will mark up hundred seventy eight the carmelo rodriquez military medical accountability act of two thousand and nine the bill allow members of the armed services to recover damages against the government under federal tort claims act to redress medical malpractise committed into the act in exclusion the nowhere appears in this text it held that active duty service members alone among those injured by the government cannot bring claims out of the act nearly all legal commentators agree with justice  decided the courts error has fallen the hardest on service members injured or killed a result of negligent medical care suffered at the hands of government boy health care providers h r four hundred seventy eight restore the rights of those service members to the government that congress gave them when it acted the federal tor everything i can to ensure that this country's service members including those who have suffered because of medical malpractise receive the best benefits and compensation possible as a member of the armed services committee i believe that there is no greater priority of this government than to do those things necessary to care for and to maintain the soldiers and airmen and marines and those who defend the freedom of this country  however in order to to maintain a well disciplined and motivated military it is essential that service members understand that they are being treated fairly in all respects including fair compensation for service related injuries the question this la legislation raises however is whether removing the pharaoh's bar to medical malpractise cases would further military discipline morale and fair compensation and i have to to believe in practice that it will not rather this bill would superimpose on the military's uniform no fault compensation system a privileged class of claimants within the armed forces h r four hundred seventy eight would create the anomaly of offering a tort remitting to a service member who loses a limb through a medical mistake while denying the same compensation to one who loses a limb in combat this in my judgment could demean the injury suffered in combat by providing a soldier injured on the battlefield with administrative compensation allowing a soldier injured in a military hospital to seeking multi million dollar damage award in federal court what is more mr chairman because the federal court federal tort claims act bases liability on state  legislation recovery legislation recovery will depend on the local tort laws where the service member stations selective compensation based on duty station falls short of the even handed fairness needed to preserve military morale one of the chief benefits of the existing statutory compensation system is that comparable injuries are treated uniformly if we believe that the military compensation is inadequate or as per producing unfair results in my judgment we should work to correct that system we should increase funding and make the needed reforms there is no excuse for providing our troops less compensation than they deserve however if the current system is not working properly repealing the fairness doctrine is not the solution this country can provide our service members with the meaningful benefits they need without making the brave men and women that serve resort to litigation thus our focus should not be on allowing special medical malpractise led litigation but on improving the overall military compensation system for all of this country's service members as retired general john altenburg a former deputy judge advocate general the army testified to hearing with we held two months ago on this legislation he says congress can better serve our service members and their families by improving benefits by eliminating disparities and inequities and by increasing compensation to better approximate damage recoveries of civil lawsuits lawsuits are not the answer to what admittedly is a problem our service members and their families need meaningful benefits that can be timely delivered in a non ad the serial administrative form with appropriate checks and balances without making making our brave service members resort to litigation at the hearing we held in this legislation general altenburg made two fundamental points number one the military has an adequate system of accountability for its medical professionals which can include penalties up to and including court martial and that number two forcing our service members into the courtroom is not the answer to problems that may exist with military compensation mr chairman is a as i see nothing that truly contradicts his two fundamental points i have to oppose this legislation and i yield back the balance want to thank you sir without objection other members opening statements will be included in the record pursuant to notice i now call up the bill h fourteen seventy eight the carmelo rodriguez military medical accountability of act of two thousand and nine the clerk will report the bill h r fourteen seventy eight to amend chapter one hundred seventy one of title twenty eight united states code to allow members of the armed forces to sue the united states for damages for certain entries caused by improper medical care and for other purposes without objection the bill is considered as read and will be open for a objection amendments considered as read and shall be considered as the base text to recognize myself for five minutes in support of the amendment the minimum offering makes three changes to the bill first to provides that malpractise by government employed health care providers is action whether occurs inside or outside of the united states the provision of the current bill that renders malpractise actual only if occurs inside the united states is an apparent drafting error that is evident both for the last year's nearly identical version of the same government benefits to which the service member may be entitled questions involving offsets would instead be decided case by case under political state law which is how such questions have always been decided in suits of the federal tort claims act and finally the amendment provides that section twenty six eighty one j of title twenty eight does not apply them out practices the subsection j excludes from the false claims act any claim arising out of the combat and activities of the military of the military or naval sources or the coast guard during time of war the current version of the bill however already contains a broader exclusion the covers the narrower exclusions exclusion of subsection the bill excludes quote any claim arising out of the combat and activities of the armed forces during time of armed conflict unquote that is conflict even in the absence of a declaration of war the retention of subsection j exclusion would serve no purpose and might even cause confusion in the court therefore to my colleagues to support the largely technical but necessary amendment so they would seek recognition chairman what purpose does the gentleman seek recognition extract the last word mr chairman john's recognized five minutes thank you mr chairman and respectfully but putting in the simplest terms i believe that this manager amendment makes what in my judgment is a misguided bill even worse as i noted in my opening statement one of the benefits of the current military compensation compensation system is that comparable injuries are treated uniformly this manager's amendment however it will further erode the uniformity that the underlying legislation already disrupts it will do so by eliminating a key provision the bill has introduced that requires that damage awards in malpractise cases be offset by the amount of military benefits a service member receives without this collateral offsets provision the bill will not only require the department of defense to pay twice for medical malpractise claims and plant can't claims in many cases but he will also make damage awards contingent on where a service member is stationed for example a service men a service member station in california will not be subject to collateral offsets while one stationed in  york still will thus holding all other factors constant service members with the same injuries will be re will be receiving very different amounts of compensation depending on where they are stations as i stated in my opening statement selective compensation based on duty station falls short of the even handed fairness needed to preserve military morale because this amendment makes i think a bad bill worse as i said  will this will subject a department offense to pay pay twice in many cases it will also compensate service members differently depending on where they happen to be stationed and therefore i have to urge my colleagues to vote against this amendment and yield back chairman i have an amendment did ask john what has an amendment at the desk with the clerk read the amendment amendment to the amendment in the nature of a substitute h r four hundred seventy eight offered by mr franks on the first page strike line four and all that follows the end of the bill and insert the following we need of a section to g a o study study required the comptroller general shall carry out a study to examine one the military veterans and other benefits available to the service members injured or killed as a result of medical malpractise that is provided by a person acting within the scope of the office or employment of the person by or at the direction of the government of the united states including the eligibility criteria that a service member must satisfy to receive these benefits and be the amount of compensation provided by these benefits include as applicable the fact on compensation of the chairman my amendment would amend this legislation to require that the g a o conduct a study of several issues related to medical malpractise by military medical personnel i believe that it's important that we study some of the problems i mentioned in my opening statements and some of the others that seem to arise as we proceed and we need to study these problems of the current system before we take the drastic step of repealing the fairness doctrine for medical malpractise claims the fairness doctrine has been on the books for fifty nine years and while the doctrine certainly has endangered engendered its share of criticism i believe that we have an obligation to do more than one subcommittee hearing before we move any further toward a repeal of a major portion of the doctor our subcommittee hearing was the first hearing on the fairness doctrine since the senate judiciary committee held similar hearings a similar hearing seven years ago moreover there one subcommittee hearing we did not hear from either the department of defense or the department of justice nor have we heard their opinions on this legislation since that hearing in the past both departments have strenuously opposed similar legislation so simply put i do not believe that based on one subcommittee hearing with only five witnesses we can do much more than begin to assess whether this legislation is either necessary or the best solution to any problems that may exist with military medical malpractise claims th slammin that will put a reasonable hole in this legislation so that the g a o can conduct a study of the current system based on the limited information we have before us we do not know whether this legislation is needed appropriate or will it whether it will even for any real benefits on our service members and i urge my colleagues to support this reasonable amendment to set this legislation aside while g a o conduct a study to provide us with at least some of the information we need to make an educated decision on whether we a hideous bill one that i think is ill conceived and it moves it into the reconsideration relook and perhaps the cooling off time necessary to have those who support health care reform recognize that this is probably the single greatest ill conceived attack on the health care system that is our single payer federal health care system today if the chairman would think  before the vote in terms of if in fact we're going to have a single payer system as chairman conyers would like to have and we're going to have the federal government providing health care then wouldn't we by definition disempowered or hold back on the idea that the plaintiffs trial lawyers are going to sue their way into us being a better health care provider and instead implement a system of the federal government determining if there's a  having a way to make people as whole as money allows very clearly as we look at single payer systems around the world there is not one in which the plaintiffs trial bar is set loose to to look for failures and bring about claims not one so when we often talk about health care in europe if we're going to talk about health care and europe let's not go in the opposite direction when it comes to legislation on the eve of what might be monumental change in health care so i would caution that the ranking members amendment is appropriate because we need time to see what's going to happen in the rest of health care reform rather than take  move that would be probably in the opposite direction that government would go if government was going to expand health care but assure the american people it was going to be affordable and that the federal government would be able to properly discipline their not have been here when i was i stood with chairman conyers and said we may disagree at times on the individual solutions we do not disagree on the problem and i was here in this committee standing by him with a notable cinematographer who are from a nameless here today michael moore and but in fact i do agree with the chairman that we have a he serious health care problem in this country where i am concerned and the reason that i'm going to be supporting this amendment is i'm concerned that bringing greater plaintiffs trial lawyers in rather than greater accountability by government oversight is a step in the wrong direction in health care reform and with that i would thank the chairman for his indulgence those opposed no no in the opinion of the chair the nos have to have it and the amendment is not agreed to or to vote on that there has been a request genesis two members for a recorded roll call vote and  forbes mr king mr king votes the clerk report six members voted six members voted nay the amendment fails chairman for what general purposes gentlemen seek recognition and i remember that the desk with the clerk read the amendment minute to the amendment in the nature of a substitute h r four hundred seventy eight offered by mr king chairman mr scott's recognize to reserve a point of order so don please page two after line eleven and start the following the no attorney shall charge demand receive or collect for accordingly thank you mr king you recognize for five minutes on your amendment thank you mr chairman my amendment will place a reasonable limitation on the fees attorneys may charge our servicemen and women if they decide to bring a lawsuit pursuant to this legislation the purpose of this amendment is to maximize the recoveries that our service members receive my amendment adjusts the twenty five percent cap on fees and litigated cases to fifteen percent and the twenty percent cap on fees in settled cases to ten percent i believe that this limitation is particularly important considering that sense one hundred sixty effective hourly rates realized by attorneys in contingency fees adjusted for inflation have risen between one thousand and fourteen hundred percent the increase in rates as occurred while at the same time the risk of non recovery in medical malpractise cases has fallen the us attorneys are getting paid more in contingency fees today for work that is less risky our service men and women should not be subject to these increased attorney's fees if we are going to enact this law and i urge my colleagues against voting in favor of this legislation we should at least ensure that we maximize the recoveries that service members receive we should not be enacting this legislation for the benefit of the trial lawyers a recent article in the legal times suggested this legislation was the first preview of the coming fight in congress on behalf of the trial lawyers over proposals that would open new areas for civil litigation close quote that article further surmises that the trial lawyers are quote testing whether they can translate their newfound political capital into legislative victories close quote i would ask unanimous consent to enter this article introduce i ask unanimous consent to enter this article from the legal times it's entitled plaintiff's bar pushes capitol hill agenda close quote into the record without objection thank you mr chairman you're welcome sir and in conclusion then let me just say that i believe bill is not the answer to solving the inadequacies that exist with regard to military compensation the brave men and women of our armed forces deserve better than to be forced into the court room to receive increased compensation however if we're going to push them into the court room the least we can do is ensure that we maximize their recoveries by placing a reasonable limit on attorney's fees i urge my colleagues to adopt this amendment and i would yield back the balance of my time thank you sir mr scott do you still have your reservation persist mr chairman out in system a point of order this is a right to do that doesn't have anything to do this nothing in here about attorneys and i would think that this is not germane to the bill the the chair feels that the point of exist in the claims act and now we're just adjusting to numbers and they claims act and it's very much within the purview of this bill and this committee to make those adjustments and i think that to to rule in the opposite would be to deny this committee the ability to make this decision well that the chair does believe it's not your money but we will consult with the parliamentarians and and and reserve this  it's been moved and seconded that the chair has been challenged on this rule ruling on your mind this i don't believe your mind is debatable mr scott well the motion to table is certainly not to debatable and had so moved to table the motion is there a second i'm sorry i misunderstood your response mr chairman but i do think i understand the rules thank you thank you is there any further amendments to be offered if not all those in favor of the bill as reported had been taken up by seven members voted aye six members voted no majority having voted in favor of the bill as amended in the amendment in the bill as amended is agreed to forty four being present the question is on favorably reporting the