majority position on this matter thank you mr chairman members of the committee while congress gave service members the right to seek justice when an act of the federal tort claims act in one thousand nine hundred eighty six the supreme court took that right away four years later and carries versus united states the supreme court held then that active duty service members cannot bring claims under that act the court reason that congress must have intended the active service members even though nowhere in the is that exclusion exists the court's holding has been come to be known as the very stock the court then and now has offered several reasons for a conclusion primarily that congress must have believed that tort lawsuits bus service members would interfere with quote military discipline unquote and put civilian courts in the business of second guessing military decision making the various dr has been the subject of criticism within the supreme court itself current justices ste both condemned nevertheless the court has stood by this doctrine for almost sixty years nearly all legal commentators agree with justice scalia's assessment that quote perry's was wrongly decided quote unquote for example just last year the american bar association weighed in with an unopposed resolution urging congress to repeal the ferries dock h r fourteen seventy eight the carmelo rodriquez regus medical military medical accountability act of two thousand  law subcommittee held a hearing on this legislation in march and in may report of the bill favorably with an amendment the bill as amended would not require any amount received by successful quiambao service member certain veterans and other government benefits to which the service lose any claims arising out of the combat and activities of the armed forces during a time of armed conflict that is armed conflict even in the absence of a declaration of war so if you're injured and treated by medics on the battlefield  the rules don't change that fire come in and fire going out very precarious situation things could happen you're a military man you're in a hospital it's no different than being at a regular hospital malpractise malpracti claims come in no conflict shouldn't be there is no justification for continued on our active duty service members legal redress of the federal tort claims act when they are killed or injured as a result of medical malpractise h r four hundred seventy eight restore the right of the service s a minority leader the ranking member lamar smith thank you mr chairman mr chairman i agree that congress should ensure that the men and women who serve in the armed services receive the highest quality medical care possible however because this legislation does not make any significant contribution toward that and i have to oppose the bill the issue this bill presents is not whether service members should receive compensation for injuries resulting from medical  received compensation to the departments of defense and veterans affairs the issue also is not whether military medical personnel will be held accountable for medical malpractise they already are held accountable including the possibility of court mar this bill presents is whether flaws in the current system should be addressed by giving trial lawyers free rein over our military's medical care this bill allows active duty members of the armed forces to bring lawsuits against the united states under the quality of care provided in fact the litigation created malpractise crisis is one of the major problems facing the practice of medicine in america today causing health care costs skyrocket the major beneficiaries of the cost of this bill two point nine billion dollars with no offset in sight that's two point nine better than improving the current system this bill also treats service member injuries differently depending on how the interaction tort claim for which defenses would need to be planned in defensive medicine practice threatening military medical readiness and some this legislation benefits trial lawyers not service members creation equities between the compensation for combat injuries and malpractise injuries and disrupts the practice of military medicine moreover this legislation comes with a two point nine billion dollars price tag for taxpayers enough to buy catastrophic appreciate that this is a concern of mine and having four years in the military at fort benning we had some doctors that did not practice the best medicine and we did what this or in excess of ten percent of any award compromise or settlement to this section three designate succeeding subsections accordingly decide to bring a lawsuit pursuant to this legislation the purpose of this amendment is to maximize the recoveries that our service members might receive my amendment adjusts the current twenty five percent cap on and litigated   the risk of non recovery in medical malpractise cases has fallen thus attorneys are getting paid more and continues today for what work that is less risky than it was in the past our servicemen and women should not be subjected to these increased attorney's fees if we're going to enact this law and i urge my colleagues against voting in favor of the underlying legislation we should at least ensure that we maximize the recoveries that service members can receive we should not be enacting this legislation for the benefit of trial lawyers a recent article in the legal times suggests that this legislation was the first preview of the coming fight in congress on behalf of trial lawyers quote over proposals over proposals that would open new areas for civil litigation close quote the article further summarizes that trial lawyers are testing whether they can translate their newfound political capital into legislative victories in conclusion let me say that this bill is not the answer to solv 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 we're going to punish to push them into the courtroom the least we can do is ensure that we maximize their recoveries by placing a reasonable limit on attorney fees and that would be fifteen percent on those cases that go to court and ten percent on those cases that are negotiated out of court and mr chairman i urge adoption of my  inquiry is a gentleman saying that you think that by limiting the wanton greed of trial lawyers to seek out these cases by making it less financially rewarding that we might in fact limit the cases to cases that have merit since your generous percentage in large cases would be a great deal but is that the real attempt of the gentleman is to try to reduce the kind of greed and avarice that  plaintiff trial lawyers may have at the expense of our soldiers reclaim my time my head and characterize it particularly as an attempt to reduce the wanding grade but that would be the difference between twenty five percent and fifteen percent and twenty percent ten percent rated respectively fairly easily within our authority allowing plaintiffs to come with an attorney who knows he or she is going to be fairly compensated by a review board separate from the award of that harm to soldier sailor or marine so i think if in fact we want to take avarice out of the process and as my colleague said and yet not eliminate somebody who has a valid claim from having that we have the authority to do it and it's not in this bill so i intend to vote with my colleagues to reduce this amount but i certainly would look forward to working with the chairman on the possibility that we actually modernize within our authority the ability for attorney to  compensation so that if it's a ten dollars but it takes one hundred dollars to get there but i clearly see today that what we're really doing is simply saying how much will we let the plaintiff's lawyers get and no on top of the award but i certainly think the committee has the authority to take a solid look and say that in fact whatever amount of of economic damages the individual has if there is merit to the need to bring the case if it's removed from any kind of arbitration or other other way in which that remedy could have been granted then in fact that now just sort of giving a little a little food for thought mr chairman we certainly do have to look and say we have a process to get compensation to the to the injured soldier sailor marine if that's in everyone's best interest if it's not sufficient if they're being denied and they choose to go through a court process and go through that process has merit that becomes an extraordinary case and i think we could consider that and i think we should but i think that we need to get away simply from the fact that lawyers still cherry pick their cases based on whether twenty five percent is going to make a case so as the general was saying if you lowered from twenty five percent to ten percent or fifteen percent all we're really doing is dabbling around when they choose it in their best interest since forty eight of twenty or twenty five percent down to ten percent they want to get more money well that is not going to get more money unless this bill passes and gets them out of the system they're under now where they can't sue for medical malpractise so the spirit in which they argue i join with them in current it sounds like they're the bill because they want the soldiers to be compensated in a maximum out right now they're not compensated hardly at all the good judge from texas i believe said that one thing in the military is everybody's equally important but they're not equally important for compensation if you're an officer you get more money based on the fact that you're an officer for the same injury that could be caused by medical malpractise then in a private that's not equal in the military is a separate decision that you're not all equally important to comes to compensation under the present system that we have which is not fair to claim that this bill is unfair which is a different subject i guess to the folks that get injured in combat should be a stop to make such an argument because that's submitting that there's an injustice start with and it should be uniformly distributed to those who are in combat and not in combat yet the fact of the matter is the rodriguez who was diagnosed for having a boil that turned out to be cancer and that took his life with c b s television was at his home to see the situation they were there when he passed away which they didn't expect to have happen and his family was here and his family has suffered it was medical malpractise to tell him you've got a boy go away he went to the tumor group and he lost his life and that's not right and that's the only people i've heard of the family recoveries by limiting attorneys the congressional budget office has given this legislation a preliminary point nine billion dollars over the next ten years using c b s preliminary cost two point nine billion dollars we can further estimate respond to that question and it would be that in these scenarios that i envision the federal government would be defending the medical practitioners that might be the subject that are activated by this opportunity position to make certain decisions that are more thought out and should be more professional and in that type of setting than on the combat field where you have to take actions that may not be otherwise taken out of the best circumstances and the possibility for during august members of congress on both sides of the aisle had a town hall meeting about health care and there was an enormous outcry by people around the country for us to try and do something about it and one of the committee to provide that reform and we don't bring it up instead we're going to put another group of people were the i would say into the system that almost everybody recognizes the drastic need of reform wish you wouldn't condemn our entire system by suggesting that any attorney who's a plaintiff attorney you know they're actually out there doing it for the right reasons and there are people that are getting compensation having said that i would say five percent of the  and i'm glad that you have defended the integrity of lawyers who i believe wish to defend and to represent the principles in the laws of this land but he also answers or provides the basis of my opposition to this amendment we know that this soldier that lost his life was turned away was in essence had the opportunity to indicate what his problem was but he did not obtain service and so in essence he lost his life because of a poor judgment a medical judgment that does not label all medical professionals nor are we in a debate on health care reform those certainly we will look forward to those debates in the years and in the days to come but what this is a simple premise of equality and the lemonade discrimination and frankly we do not have to my understanding a federal medical malpractise law we have left that to the state that would not be violated as i understand in terms of the guidelines but it would give this individual who happens to be active duty the right to sue that is an important element when you think of the sacrifice they make for all of us willing to sacrifice their lives willing to go in way places that they should have the opportunity to be able to be served right this is not a denial of their health care system many of them would applaud it many of them practice tort law and i'm very familiar with sliding scale both in terms of the size of the award and in terms of the amount of work done by the attorney whether they settle the case before going to court or take it or go all the way to appeal or the size of the verdict or the settlement could dictate the percentage recovered so i think that's certainly a good suggestion that's not encompass by the bill or or the amendment and generally i believe that individuals ought to be able to freely contract the arrangement that they make with their attorney in this case however i will support a cap on attorneys in fact a lower ca because the bottom line here is that this paid for by american taxpayers and the government always isn't the best the representative of them in making decisions about how to settle cases and do so with the taxpayers interests in mind in terms of what  is fair and if this causes attorneys who are looking at these cases to be a little more careful in the ones they select because their recovery cannot be as great i think that's a good thing maybe we'll see fewer yellow pages ads around military hospitals and around military bases that say no fee of no recovery and not inject the legal practice any further than we need to into the armed forces of the united states that supports why the ferries doctrine exists in the first place and the ranking member has correctly pointed out that the cost projection of this is two point nine billion dollars over ten years i'll remind folks that over those same ten years the congressional budget office says that a no year for those next ten years will our federal deficit fall below five hundred fifty billion administration just recently added another two trillion dollars to the projected budget deficits and so when we start adding we ought to be really looking at what most people in this country want the congress looking at and that's the cost of how we can reform things the gentleman from california makes a very very good point that there is strong demand for medical liability reform that would cut down on the amount of defensive medicine i hate to think what this will do  in our military hospitals to see an increase in the amount of defensive medicine that gets practiced there because those physicians will find themselves in the same situation that other positions around the country are finding themselves  already estimated to cost ten to twenty billion dollars a year an added medical cost because of defensive medicine that's practiced never mind the insurance and other liability issues that come with that but there's another issue here that troubles me and that's the fairness much has been made of how the fact that people who are injured in a military hospital would not be able to recover why is it that we're only addressing medical liability there is a whole other tort liability issues that those serving in our military what also face eating an improperly cooked meal that causes a severe illness or disability how about  building falling on you or some other defective piece of equipment that the military has you operate all of those things are not addressed by this i this is a view of selective fairness that i think should be rejected if we're going to change the overall approach of our government in terms of looking at whether we should inject our tort liability system into the united states military we ought to do it in a more comprehensive way i for one am very skeptical of that idea and for that reason i don't want to kick the door open with regard to this particular area the military does need to address the needs of those who are injured hundreds per view need to do it in a comprehensive way and perhaps we need to have oversight of that but to bring our civil justice system into the military in this way i think isn't as much a mistake today as it was when the united states supreme court adopted the faeries doctor in the first place and so i'll support the amendment oppose the clerk will report mr chairman thirteen members voted on eighteen members voted nay the man made his unsuccessful mr chairman franks of arizona may have an have heard several calls today for uniformity and i would suggest that one of the benefits of the current military compensation system is that comparable injuries at this moment are treated uniformity  y but this bill will require the department of defense to pay twice in some cases for medical malpractise claims damages and awards contingent on where a person or service member station for example a serviceman member station california will not be subject to the collateral offsets while one station in new york will be thus holding all of the factors cost and service members with exactly the same injuries will receive very different amounts of compensation depending on where they are stationed or selective compensation based on duty station fall short of the even handed fairness needed to preserve military morale mr chairman that doesn't even reach some of the comments that mr king mentioned are related to someone is hurt in battle that they're treated very differently under the system under this bill than those someone heard in an office in pittsburgh so mr chairman i identify strongly doctrine certainly has deservedly endangered or engendered some of its criticism i believe that we have an obligation to do more than once a subcommittee hearing before we move towards repeal our subcommittee hearing was the first hearing congress held on the fairness doctrine since the senate judiciary committee held similar hearings seven years ago and we did not even hear from the department of defense nor the department of justice at our hearing nor we heard their opinions on this legislation since that hearing as far as i know in the past both departments have strenuously opposed this similar legislation and i don't believe that all based on once a subcommittee hearing with only five we can do much more than begin to assess whether this legislation is eithe conduct a study of the current system to provide us with at least some of the information we need to make a decision on whether we should enact this law and i hope my colleagues will support what i believe is a reasonable and thank you mr friend in this argument the supreme court justice scalia who has so many friends on this committee he might not know it today but generally he does and justice scalia said that the unfairness of servicemen ended would be for no recovery is illogical and there's certainly a reason why people who are injured on the battlefield to get different compensation standards and people who are injured are hurt because of medical malpractise in a  hospital setting which should be of the same professional standards as would be an on united states or wherever a non combat atmosphere all of those arenas of medical practice extended and nobody would submit the combat situation as one would be the same and certainly there you've got the command and the discipline that's important for the military present it's not the same operating room so i would oppose the gentleman to me one could be described as simply gutting the bill well mr chairman i suppose there are those that might say that but i'm sincere in the amendment that i do think that the situation should be looked at and  suggesting that mr cohen made partly in my arguments here he was saying that justice delayed and incidentally justice scalia was a friend of mine i knew justice scalia but he made the argument that we shouldn't treat battlefield injuries differently then  those injuries in the in the you know in in country and this bill will do exactly that and so i'm suggesting that a study where we could get the parties involved and it may very well be th not just to do it in small you know more surgical manner and so yes this is the gutting amendment we've had sixty years to study it and i don't know that we need more time i think that the situation is clear and i do understand that the gentleman probably knew the gentleman is recognized in support of his amendment thank you mr chairman mr chairman some of the things that we've been discussing with the other amendments to the amendment have been related to combat and activities and the difference between combatant activities and those activities that are not at war time or on the battlefield or or the like even mr cohen recently just said that command and discipline on the battlefield is different than in the operating room if that is the case one of the concerns that i have as a former army captain former judge advocate as we discussed whether or not to change the faeries doctrine and and it would be hard is regarding injuries or incidents occurring in training for a battle at the national training center in california or at fort hood texas where i was stationed or any of the training facilities in deployed arenas such as kuwait these are dangerous these are dangerous places that require commanders to be able to adequately train for the good order and discipline and not only that but for the ability to properly execute what they're being required to do by the commander in chief sometimes it's not easy sometimes it's not safe and i think that if we're going to if we're going to have this amendment passed even though i oppose the underlining amendment if we're going to have it passed shouldn't it also include for good order and discipline of the troops that are training that the fairies bar be extended to training for combat an activity rather than just combat negativities and last combat negativities includes that is implicit in that already then i'd be willing to withdraw my m m and but i think for clarity purposes training for combat and activities should also be included in this with the gentleman knew i would we would be delighted to take the concept that you  presented in your amendment even though it may be withdrawn we'd like to study that combat and activities would imply training for combat activities because that's a whole other realm of potential injuries slash health concerns that i don't know if mr cohen has included in his amendment well i doubt that he has of the distinction that i was making in the law that we proposed is the distinction in a calm and rational and collective and sterile environment that is parallel to one that exists in the private sector as distinguished from one that is in the combat world that this training i would think operates in that former marine at that is calm and rational and thought out and applied without the fear of that the haste and needs to move forward because of exigent circumstances why do you believe that there should be that distinction or are that inclusion that this training if it's negligent shouldn't be subject to a clear oversight and damages and a remedy if it is indeed fact negligent the gentleman yield i think that your presumption is is is somewhat misguided in that training for battle is clean and sterile and that is not to distinguish that is distinguishable from combat in that the amount of exit you can see and the amount of risk and the amount of danger and the amount of stress and the amount of situational operation operations where you know a medical or a physician might be in a situation that is not an army hospital on fort hood texas but at the national training center in california and they were to meet in the middle of  drills and maneuvers yes sir and i and i don't believe that the way that this bill is written makes that clear well i could i could understand in that situation it is more not the sterile atmosphere i thought you meant training like taking medics and saying here's how you do and i have a etc etc in a classroom or in a in a and in a non you're talking about in a desk is a simulated battlefield arena right but that also extends to a lot of other things you know again i the problem i have with the underlying bill is i think that that could actually extend to you know things like physical training and and and  certain problems that you have with where it is actual combat negativities begin and nine combat activities and i don't think it's again for starts when you go into a surgery or go to a doctor and say is this a boil ours is a tumor right now i agree that's definitely distinguishable i agree with you there but i think that for the sake of this amendment that i would like no i don't think it's a perfect amendment i think that it's made a little bit better by making clear that combat an activity is just doesn't mean being in iraq or being afghanistan and being at war it also is the preparation for war which is is  would include a lot of scenarios and situations where the ferries bar should remain idle if i can reclaim my time i think you offer a good idea and i concur with the chairman that we ought to take this idea look at putting it in a manager's amendment but your amendment says combat an activity sharply training for combat negativities training can be in the field and out in a mock war type environment or training can in a medic type classroom that is more analogous to the operating room and you're your amendment is not clear enough to show and i think in combat neck titties might be better language but i think it's something it's good material for a potential manager's amendment would ask you to work with the chairman and try to include this in the manager's amendment because i think there are some but i think right now it's kind of  e and and in overly broad i would agree that it is vague and overly broad but i would also argue that the way that it's right now is just combating activities is also vague so i'll be willing to work with you on on moving forward  with the manager's amendment to try to clarify because i do think that it's important that we make the distinction between what is truly not training for combat in combat versus removing a boil as a normal medical procedure from military personnel thank you sir i appreciate your duty and your service and your knowledge and i think your memo has got a lot of merit and i would ask the chairman to work with his staff to work closely with him to come up with an amendment that does i have parallel universes with  chairman i with that with that commitment to move forward i certainly feel like we made some headway in the right direction so i'd be willing to withdraw and my first moment i think the gentleman  problems today while technology has provided access to a vast amount of information about products and services that was not even imaginable a few years ago technology is also being used by criminals new types of brought in to steal personal information from unknowing consumers like other technologies caller id devices have empowered consumers these devices allow consumers to screen out calls they would prefer not to take they also perform the important function of acting as an additional check to ensure that individuals placing incoming calls are who they say they are unfortunately criminals have found a way to fake caller id information in order to trick consumers about who is actually calling increasingly they're using the tactic to extract personal information from unsuspecting consumers for example by making the caller id of a consumer's bank can lure a consumer into divulging bank account numbers security numbers and other types of sensitive personal information which can then be used to commit identity theft and other criminal acts the phone act will help stop this abusive practice specifically this bill imposes criminal penalties on those that provide false caller id information with the intent to wrongfully obtain anything of value as well as those  provide the caller id information of an actual person without that person's consent with the intent to deceive the recipient of the call the phone act is an important tool to fight against identity theft and i urge support of the legislation and the  commission on wartime relocation internment of back in one thousand nine hundred eighty is active stablished a commission to review the history of the internment and relocation of japanese americans and legal permanent residents and to recommend appropriate populations during world war two was either not examined or not studied at all by the commission the case for thousands of latin americans of japanese descent who were mistreated during the period the commission merely touched upon this subject remedy i would like to note several members of our committee including representatives  taxpayers who were not even alive during world war two shouldn't have to foot the bill for actions of former generations simply because some individuals felt victimized by those actions the people that committed those actions whatever they might be are no longer with us and you know let's be clear the point of this bill some proponents claim the bill is about having their story heard and we have heard some of that story before the subcommittee and they want they also the u s government to acknowledge the treatment that they or their family members receive plague they claim that the bill is not about reparations well i'd like to take them at their word but history doesn't prove this out the the statements in opposition to reparations in previous cases didn't hold up and we ended up paying reparations anyway which i objected to we have a case of one witness grace shemozzle who testified in favor of the bill at a march subcommittee meeting hearing and she's actually the coordinator for the campaign for justice redress now for japanese latin americans she called for redress both monetary and in the form of an apology to the by the united states government so it's one thing to require a commission to investigate so that we do have an accurate depiction of history and i share the sentiments that we've heard from the from the gentleman from north carolina about people want to hear their story told by too wasted to require that commission to investigate is one thing  expect us taxpayers to be on the hook for perhaps millions of dollars because of failed injustices would be an injustice itself mr chairman and i'll just point out that when we can never when we look back in times of war especially a world war like world war two it is impossible to go back and correct the wrongs that might have been committed and i think it's inappropriate for us to have to have this discussion until we put it in the frame of the context of the history and the current defense of the decision makers at the time and i think that we not only to question their motives but also come to a conclusion that the commission at least the position to do so that there are those who had been wronged by that decision and that the descendants of those people that were here at the time should have to pay the descendants of the people that might have been wrong to me this can go on and on and on every generation back to adam and i think that war is over i think history is capable of writing this heard from the proponents of the bill that it's not about reparations and yet we heard the we will find out in the recorded vote there were about to have this amendment this amendment says a commission can't recommend reparations and i'm going to ask the committee to support this statement made by the gentle lady from california that it's not about reparations but this this judiciary committee has to  say so and if we don't support this amendment by a vote before this committee the message will be clear the doors open to reparations and so i would urge adoption of this amendment and idea back the balance of my time mr chairman thank you very much by members not a member of the committee i've always felt it's important to reach out to the author as amendments are proposing this is not one that the author embrace but i think there is a broad understanding which the on the table and allow us to learn from those mistakes it was in that capacity that i first became familiar with the tournaments of japanese latin americans review our commission report you'll find that we mention japanese latin american in our appendix what we do know is that about twenty three hundred people of japanese from latin american countries were taken from their homes and moved to the united states where they were held in internment camps during the country of peru the commission appendix that we put out at that time pointed out the fear of a japanese attack in latin america particularly at the panama canal of latin american japanese however when we justification is offered for the treatment of enemy aliens many latin american japanese never saw their homes again after remaining for many years in a kind of legal no man's land and their history is one of strange unhappy largely forgotten stories of world war at it one of the important things that came out of our commission in the previous consideration was not in my judgment the reparations that were paid but the official apology that was made a record that was established and we did establish t o allow for continued historical studies of this and providing some material so that our children might learn from some of the circumstances of the past so i strongly support this of the other commissioners said in his opening statement how much money are we talking about that was opening and this is after i had told members it wasn't about reparations i would hope that wouldn't responsibility of upholding justice and equalizing the playing field of a number of individuals who have been discriminated against this committee has examined the cases of suffering of japanese  dissidents living in central and south america during world war two we study the plight of the survivors of the infamous greenwood race riots and we've analyzed the plight of over five hundred thousand residents of the nation's capital the district of columbia who any really pay over a billion dollars in federal taxes and still today are denied representation our business is just with the chairman as we support this bill i can't help but be reminded of a similar piece of legislation that you've reintroduce for the past twenty years r forty the commission to study reparation proposals for african americans similar to this legislation before he also proposes a study a path of our nation to serve as a lesson and a form of national healing findings to congress on how best to prepare those we can look at our history and understand that we've had a series of incidences that may either reflect on the deprivation then the inequities of our history in this country or the african americans we can look to the tragedies of the killings of young people in chicago we can look at a number of actions that have occurred over the last couple of years  in particular the very well covered issue with and know that there are a number of issues that probably just reign the life that african americans have led in this country so as i indicated i was going to offer an amendment that would have achieved of the thoughts of your bill and take it one step further pacifically my minute with not only a call for a study of the enslavement of africans and african americans read comprehensive study of the enslavement of all workers who are enslaved in america pride eight hundred sixty five which would have included native americans and other europeans who were indentured servants however i am not going to offer that amendment knowing that you're moving full speed ahead on some issues dealing with the wide breath of our concerns about discrimination in the inequities that happen when people are treated unfairly it is estimated that two thirds of all white immigrants to colonial america came as a  dentist so i would just simply say indentured servants that this is a broad based question and this legislation is narrowly focused and so i ride to support it and opposed the amendment but i hope as we move forward mr chairman that we will acknowledge any numbers injustices included in a forty year bill that have not yet been addressed and i hope by moving this bill along we'll have the attention of this committee and the sensitivity of this committee to be able to be responsive to the concerns