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MEDICAL LIABILITY REFORM: CUTTING COSTS, 

SPURRING INVESTMENT, CREATING JOBS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JANUARY 20, 2011 

Serial No. 112–1 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

JANUARY 20, 2011 

Page 

OPENING STATEMENTS 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Member, Committee on the Judiciary ..................................... 8 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Member, Committee on the Judiciary ................................. 9 

WITNESSES 

Ardis D. Hoven, M.D., Chair, Board of Trustees, American Medical Association 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 13 

Joanne Doroshow, M.D., Executive Director, Center for Justice and Democracy 

Oral Testimony ..................................................................................................... 19 

Prepared Statement ............................................................................................. 21 

Stuart L. Weinstein, M.D., Health Coalition on Liability and Access 

Oral Testimony ..................................................................................................... 50 

Prepared Statement ............................................................................................. 52 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 3 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee 

on the Judiciary ................................................................................................... 103 

Prepared Statement of the Honorable Linda T. Sa ́nchez, a Representative 

in Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 106 

Prepared Statement of the American Congress of Obstetricians and Gynecologists (ACOG) .................................................................................................. 108 

Prepared Statement of the American College of Surgeons .................................. 114 

Study of the American Enterprise Institute (AEI) ............................................... 117 

Prepared Statement of Lawrence E. Smarr, President/CEO, Physician Insurers Association of America .................................................................................. 125 

(1) 

MEDICAL LIABILITY REFORM: 

CUTTING COSTS, SPURRING INVESTMENT, 

CREATING JOBS 

THURSDAY, JANUARY 20, 2011 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:30 a.m., in room 

2141, Rayburn House Office Building, the Honorable Lamar Smith 

(Chairman of the Committee) presiding. 

Present: Representatives Smith, Sensenbrenner, Coble, Gallegly, 

Goodlatte, Lungren, Chabot, Forbes, King, Franks, Gohmert, Poe, 

Chaffetz, Reed, Griffin, Marino, Gowdy, Ross, Adams, Quayle, Conyers, Nadler, Scott, Watt, Jackson Lee, Waters, Johnson, Pierluisi, 

Quigley, Deutch, Sa ́nchez, and Wasserman Schultz. 

Staff Present: (Majority) Allison Halataei, Counsel; Paul Taylor, 

Counsel; and Perry Apelbaum, Minority Staff Director and Chief 

Counsel. 

Mr. SMITH. The Judiciary Committee will come to order. 

Welcome everybody. I appreciate the Members who are here, as 

well as our witnesses. And it is nice to see so many people in the 

audience interested in such an important subject, as well. 

One quick announcement, I think as most Members know but 

not everybody else may know, is that we are expecting votes in 

about 15 minutes. However, we are only having two votes, so we 

will be taking a recess for about 20 minutes but then we will return to resume the hearing. 

I am going to recognize myself for an opening statement, then 

turn to the Ranking Member for his opening statement, as well. 

The purpose of this hearing is to discuss the need to reduce the 

waste in our health-care system caused by defensive medicine. This 

practice occurs when doctors are forced by the threat of lawsuits 

to conduct tests and prescribe drugs that are not medically required. 

According to a Harvard University research study, 40 percent of 

medical malpractice lawsuits filed in the United States lack evidence of medical error or any actual patient injury. But because 

there are so many lawsuits, doctors are forced to conduct medical 

tests simply to avoid a possible lawsuit. 

Taxpayers pay for this wasteful defensive medicine, which adds 

to all of our health-care costs without improving the quality of patient care. 

2 

A survey released last year found defensive medicine is practiced 

by nearly all physicians. President Obama, himself, acknowledged 

the harm caused by defensive medicine, stating, quote, ‘‘I want to 

work to scale back the excessive defensive medicine that reinforces 

our current system and shift to a system where we are providing 

better care rather than simply more treatment,’’ end quote. 

Yet the health-care legislation he signed does nothing to prevent 

defensive medicine. In fact, it makes matters worse by allowing 

trial lawyers to opt out of any alternatives to health-care litigation 

proposed by the States and by exposing doctors to even more lawsuits if they fall short of any of the many new Federal guidelines 

the law creates. The encouragement of lawsuit abuse will not only 

make medical care much more expensive, it will also drive more 

doctors out of business. 

The Judiciary Committee will consider alternative health-care 

lawsuit reforms modeled on California’s reforms, which have been 

in effect for over 30 years. Those reforms have a proven record of 

reducing defensive medicine, reducing health-care costs, and increasing the supply of doctors. 

There is a clear need for reform at the Federal level. Many state 

Supreme Courts have nullified reasonable litigation management 

provisions enacted by State legislatures. In such States, passage of 

Federal legislation by Congress may be the only means of addressing the State’s current crisis in medical professional liability and 

restoring patients’ access to quality health care. 

Further Federal legislation is needed to stem the flow of doctors 

from one State to another, as they flee States to avoid excessive liability cost. Doctors should feel free to practice medicine wherever 

they want, and patients everywhere should be able to obtain the 

medical care they need. 

Last year, the Congressional Budget Office determined that a 

legal reform package would reduce the Federal budget deficit by an 

estimated $54 billion over the next 10 years, and that was a conservative estimate. Another CBO report estimates that premiums 

for medical malpractice insurance ultimately would be an average 

of 25 percent to 30 percent below what they would be under current law. 

The Government Accountability Office has found that rising litigation awards are responsible for skyrocketing medical professional 

liability premiums. Its report states that the GAO found that 

‘‘losses on medical malpractice claims, which make up the largest 

part of insurers’ cost, appear to be the primary driver of rate increases in the long run,’’ end quote. The GAO also concluded that 

insurer profits, ‘‘are not increasing, indicating that insurers are not 

charging and profiting from excessively high premium rates.’’ 

The National Commission on Fiscal Responsibility and Reform, 

which was created by President Obama, also supports health-care 

litigation reform in its 2010 report. ‘‘Many members of the Commission also believe that we should impose statutory caps on punitive and noneconomic damages, and we recommend that Congress 

consider this approach and evaluate its impact.’’ 

As a USA Today editorial concluded, one glaring omission from 

the health-care law was the significant tort reform, which was opposed by trial lawyers. 

3 

I look forward to hearing from our witnesses today, who will help 

us assess the extent of the current health-care litigation cost. 

And I am now pleased to welcome the remarks of the Ranking 

Member, Congressman John Conyers. 

[The prepared statement of Mr. Smith follows:] 


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Mr. CONYERS. Thank you, Chairman Smith and Members. 

This is our first hearing in the 112th session. And I would like 

to just add for your consideration my recommendations that we review, in connection with health care, the antitrust exemption that 

health insurance companies enjoy, the McCarran-Ferguson exemption, and that the Sunshine Litigation Act that ensures and prevents secret settlements from being used to endanger the public 

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ing the medical community, that, in turn, would protect all patients 

and protect professionally responsible doctors from abuse of claims 

of wrongdoing. 

And then you remember the act that me and a former Member, 

Campbell, introduced that empowers doctors to negotiate an even 

playing field with health insurers. 

So I would like us to kindly consider those measures that might 

be more important than an oversight hearing on a subject matter 

that Members of Congress have already announced that they are 

going to introduce, namely H.R. 5, which I expect will be coming 

down the pike one day next week. The letters are already circulating on it. 

And so I find that an oversight hearing for a bill that is being 

written to be the subject will come straight to our Committee. It 

isn’t exactly reverse, but there is a certain irony in the way this 

is coming off today, and I just wanted to put it in the record. 

Now, legislative hearings should be held prior to the oversight 

hearings. But, also, I hope that we can get into the issue of the 

shortage of doctors in rural areas, which is critical and which many 

of us view would be increased by a cap on medical liability, this 

$250,000 cap. Most of our witnesses here today realize that that 

may have a perverse effect before it is all over with. 

Now, about the large number of cases filed, one out of every eight 

cases filed ever results in a lawsuit. And that is because, with the 

statute of limitations, attorneys have to include in the filings many 

people who may not be involved and are usually excluded from any 

trial liability but they get counted as the ones that are sued. So I 

am looking forward to a discussion about that. 

Now, we have States that constitutionally preclude any limitation on Medicare damages. Kentucky and Iowa limit the damages. 

Dr. Hoven is from Kentucky; Dr. Weinstein is from Iowa. And Kentucky is one of the four States that constitutionally prohibit limits 

on damages. But there are other States—Arizona, Pennsylvania, 

Wyoming, including the trauma center that provided such excellent 

care to our colleague, Gabby Giffords, are all, I think, under some 

danger presented by some of the trends that we are expecting in 

H.R. 5. And I think that is something we ought to consider. 

I close with just a comment about the real cost of medical malpractice claims. They are only a fraction of the real cost. And I end 

on this note. The sixth-largest cause of death in the United States 

of America, medically, are malpractice cases. 

And so I hope that, as this discussion rolls out this morning, we 

will be considering what we do with the hundreds of thousands of 

people that could be adversely affected, whose lifetime costs—even 

though they are innocent and the case is supported by the court 

and judgments are entered, but with a $250,000 cap, as many of 

us know on all the hearings we have had prior to now, that this 

would be very minimal, indeed. 

And I thank you for the time. 

Mr. SMITH. I thank the Ranking Member for his comments. 

We are now going to take a short recess so Members may vote. 

When we return, I will recognize the Chairman and Ranking Member of the Constitutional Law Subcommittee for their opening 

8 

statements. They have jurisdiction over this particular issue. And 

then we will get to our witnesses. 

So we stand in recess until about 20 minutes from now. 

[Recess.] 

Mr. SMITH. The Committee will resume our hearing. 

And I will now recognize the Chairman of the Constitutional Law 

Subcommittee, the gentleman from Arizona, Mr. Franks, for his 

opening statement. And then we will go to the Ranking Member of 

the Constitutional Law Subcommittee. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, the medical liability litigation system in the 

United States, I think, by all accounts, is broken and in desperate 

need of reform. The current system is as ineffective a mechanism 

for adjudicating medical liability claims as it can be, which leads 

to increased health-care costs, unfair and unequal awards for victims of medical malpractice, and reduced access to health care for 

all Americans. 

Only reforms to the system at the Federal level can address the 

current national medical liability crisis. Unfortunately, the massive 

health-care overhaul that President Obama signed into law last 

year did not meaningfully address medical liability reform. Thus, 

we are here today to examine this continuing problem and evaluate 

national solutions to this, what I believe to be a crisis. 

One of the largest drivers of this crisis is the practice of defensive medicine. Defensive medicine leads doctors to order unnecessary tests and procedures—not, Mr. Chairman, to ensure the 

health of the patient, but out of fear of malpractice liability. 

The cost of defensive medicine is, indeed, staggering. According 

to a 2003 Department of Health and Human Services report, the 

cost of defensive medicine is estimated to be more than $70 billion 

annually. Additionally, medical liability litigation increases the cost 

of health care by escalating medical liability insurance premiums. 

This, in turn, of course, leads to higher costs throughout the entire 

health-care system and reduces access to medical services. 

However, Mr. Chairman, despite the increased costs medical liability litigation imposes, this litigation fails to accomplish its ostensible purpose, the goals of tort law in the first place, and that 

is fairly compensating the victims and deterring future negligence. 

The system fails to compensate victims fairly for several reasons. 

First, according to the studies, the vast majority of incidents of 

medical negligence do not result in a claim, and most medical practice claims exhibit no evidence of malpractice. So, victims of malpractice, or most of them, go uncompensated, and most of those 

who are compensated are not truly victims. 

Mr. Chairman, medical malpractice awards vary greatly from 

case to case, even where the claims and injuries are virtually identical. And, finally, attorneys regularly reduce damages awarded to 

victims by more than 40 percent through fees and costs. 

Moreover, there appears to be little evidence to suggest that the 

current medical liability system deters negligence. Rather, the 

available evidence seems to suggest that the threat of litigation 

causes doctors not to reveal medical errors and to practice defensive medicine. And this, of course, subjects patients to unnecessary 

tests and treatments once again. 

9 

So we must reform the medical liability system in the United 

States, Mr. Chairman. Among other benefits, reform could do some 

of the following. It could lead to a significant savings on health 

care; it could reduce the practice of defensive medicine; halt the exodus of doctors from high-litigation States and medical specialties; 

improve access to health care; and save the American taxpayers 

billions of dollars annually while increasing the affordability of 

health insurance. 

Mr. Chairman, meaningful medical liability reforms have worked 

in States such as California and Texas, and it is time for action at 

the Federal level to extend the benefits of reform to all Americans. 

And I thank you for the time and yield back. 

Mr. SMITH. Thank you, Mr. Franks. 

The gentleman from New York, Mr. Nadler, the Ranking Member of the Constitutional Law Subcommittee, is recognized for his 

opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, I had not prepared an opening statement because 

I didn’t know that we were going to have opening statements for 

Rankings and the Chairmen of the Subcommittees, but I will make 

an opening statement nonetheless. 

I have always believed that this problem is the wrong problem 

and it is a solution in search of a problem. 

If you look at the evidence over many years—and I have looked 

at the evidence in 1986 consideration of reforms to this problem in 

the New York State assembly when I was a member there, so I 

have been involved with this off and on for 25 years—you find that 

the real problem is not the excessive cost of malpractice—or that 

the excessive cost of malpractice insurance is not caused by lack of 

the so-called tort reforms that are being advanced here and that 

have been advanced over the years—namely, making it harder to 

get attorneys, capping fees, or capping recoveries—that capping 

these recoveries would simply be unfair to people who are very seriously injured. 

First of all, we know that most people who suffer real damage 

as a result of medical negligence never sue. So the amount of recovery is very small compared to the amount of cost. 

Secondly, study after study has found that the real problem is 

that the States—and some people might say the Federal Government should do it, but that is a separate discussion—but the 

States, in any event, whose job it is under current law, are not disciplining doctors, that something like 90 or 95 percent of the claims 

dollars that are awarded come from 2 or 3 percent of the doctors. 

Those 2 or 3 percent of the doctors are hurting patients, killing patients, and should not be practicing medicine. They should be 

stripped out of practice. And if they did, everybody else’s malpractice premiums would go down because the amount of costs 

would go way down, and the other 97 or 98 percent of doctors 

would find their malpractice premiums much reduced. 

Now, what do we find from the kinds of proposals that we consider? Number one, in May 2009, WellPoint, a major malpractice 

insurer, said that liability was not driving up health insurance premiums. 

10 

An economist at Harvard University, Amitabh Chandra, in an 

article, ‘‘Malpractice Lawsuits are ’Red Herring’ in Obama Plan,’’ 

published by Bloomberg in June of last year, concluded that, quote, 

‘‘Medical malpractice dollars are a red herring’’ for the system’s 

failures. ‘‘No serious economist thinks that saving money in med 

mal is the way to improve productivity in the system. There are so 

many other sources of inefficiency.’’ 

We know that preventable medical errors kill as many as 98,000 

Americans each year, at a cost of $29 billion, and these proposals 

would do nothing about that. 

We are told that the defensive medicine is costing us huge 

amounts of money and increasing the cost of the medical system 

as a whole. And yet the GAO, the Government Accountability Office, issued a statement saying, quote, ‘‘The overall prevalence and 

costs of [defensive medicine] Have not been reliably measured,’’ so 

we don’t really know. ‘‘Studies designed to measure physicians’ defensive medicine practices examined physician behavior in specific 

clinical situations, such as treating elderly Medicare patients with 

certain heart conditions. Given their limited scope, the study results cannot be generalized to estimate the extent and cost of defensive medicine practices across the health-care system,’’ unquote. 

Multiple GAO studies have concluded that eliminating defensive 

medicine would have only a minimal effect on reducing overall 

health-care costs. 

But the proposals that I assume we will have before us, which 

are the proposals that are introduced by our colleagues on the 

other side of the aisle every single year, all have in common putting a $250,000 limit on noneconomic damages—that is to say, on 

damages other than direct medical costs and lost wages, which may 

be the main damages for someone whose wages you can’t measure, 

like a college student or a child because you don’t know what his 

wages are going to be or would have been. 

But $250,000 is not very much. Now, MICRA in California was 

enacted in 1976, and they felt that $250,000 was a reasonable 

amount then. In today’s dollars—or, rather, in 1975 dollars, that is 

now worth $62,000. Would they have enacted a $62,000 cap in 

1975? And if we wanted to take their $250,000 and inflate it to 

keep it at the same value, it would be over a million dollars today. 

So if we are going to pass this kind of legislation, which I hope we 

won’t, at the least we should put in an inflation factor and start 

at a million dollars if we want to duplicate what MICRA did in 

California. 

And, of course, in California, MICRA did not reduce the premiums at all. They went up, from 1975 to 1988, by 450 percent. 

Only after insurance reform was enacted in 1988 by California did 

the insurance premiums level off and actually go down a bit. For 

the 13 years—a perfect experiment—for the 13 years during which 

California had the tort reform but not the insurance reform, the 

premiums went up 450 percent. When the insurance reform was 

enacted, premiums went down 8 percent. So maybe we should be 

talking about insurance reform instead of tort reform. But, unfortunately, that is not in front of his Committee. 

11 

So I think we are off on the wrong track if we are concentrating 

on this. And I see the red light is on. I apologize for exceeding my 

time, and I yield back whatever time I don’t have left. 

Mr. SMITH. Thank you, Mr. Nadler. 

And, without objection, other Members’ opening statements will 

be made a part of the record. And now I will introduce our witnesses. 

And our first witness is Dr. Ardis Hoven, chair of the American 

Medical Association Board of Trustees. Prior to her election to the 

board, Dr. Hoven served as a member and chair of the AMA Council on Medical Service. She was a member of the Utilization Review 

and Accreditation Commission for 6 years and served on its executive committee. Most recently, she was appointed to the National 

Advisory Council for Healthcare Research and Quality. 

We welcome you. 

Our second witness is Joanne Doroshow, executive director of the 

Center for Justice and Democracy. Ms. Doroshow is the founder of 

the Center for Justice and Democracy and cofounder of Americans 

for Insurance Reform. She is an attorney who has worked on issues 

regarding health-care lawsuits since 1986, when she directed an insurance industry and liability project for Ralph Nader. 

Welcome to you. 

Our third witness is Dr. Stuart L. Weinstein, a physician spokesman for the Health Coalition on Liability and Access. Dr. 

Weinstein is a professor of orthopedic surgery and professor of pediatrics at the University of Iowa. He is a former chair of Doctors 

for Medical Liability Reform. 

And we welcome you, as well. 

Just a reminder, each of the witnesses’ testimonies will be made 

a part of the record. We do want you to limit your testimony to 5 

minutes. And there is a light on the table that will indicate by its 

yellow light when you have 1 minute left, and then the red light 

will come on when the 5 minutes is up. 

So we look forward to your testimony, and we will begin with Dr. 

Hoven. 

TESTIMONY OF ARDIS D. HOVEN, M.D., CHAIR, BOARD OF 

TRUSTEES, AMERICAN MEDICAL ASSOCIATION 

Dr. HOVEN. Thank you, and good morning, Chairman Smith, 

Ranking Member Conyers, and Members of the Committee on the 

Judiciary. As stated, I am Dr. Ardis Hoven, chair of the American 

Medical Association Board of Trustees and a practicing internal 

medicine physician and infectious disease specialist in Lexington, 

Kentucky. 

On behalf of the AMA, thank you for holding this hearing today 

to talk about this very important issue. 

This morning, I will share with you results from AMA studies 

that prove how costly and how often unfair our medical liability 

system is to patients and physicians. Most importantly, I will talk 

about a solution. That solution is a package of medical liability reforms based on reforms that have already been proven effective in 

States like California, Texas, and Michigan. 

Our current medical liability system has become an increasingly 

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ended, noneconomic damage awards that bring instability to the liability insurance market. It is also an extremely inefficient mechanism for compensating patients harmed by negligence, where court 

costs and attorney fees often consume a substantial amount of any 

compensation awarded to patients. 

Let me share with you some of the alarming statistics from an 

August 2010 AMA report that shows how lawsuit-driven our system has become. 

Nearly 61 percent of physicians age 55 and older have been sued. 

Before they reach the age of 40, more than 50 percent of obstetricians/gynecologists have already been sued. And 64 percent of medical liability claims that closed in 2009 were dropped or dismissed. 

These claims are clearly not cost-free. And let’s also not forget the 

emotional toll on physicians and their patients involved in drawnout lawsuits, which is hard to quantify. 

Out of fear of being sued, physicians and other health-care providers may take extra precautionary measures, known as ‘‘the practice of defensive medicine.’’ A 2003 Department of Health and 

Human Services report estimated the cost of the practice of defensive medicine to be between $70 billion and $126 billion per year. 

Every dollar that goes toward medical liability costs is a dollar that 

does not go to patients who need care, nor toward investment in 

physician practices, a majority of which are small businesses that 

create jobs that benefit local and State economies. 

The good news is there are proven examples of long-term reforms 

that have kept physicians’ liability premiums stable, but, more importantly, have insured and protected patients’ access to health 

care. 

Back in 1974, California was experiencing many of the problems 

we are facing today. In response, California’s legislature enacted a 

comprehensive package of reforms called the Medical Injury Compensation Reform Act of 1975 over 35 years ago, which is now commonly referred to as ‘‘MICRA.’’ 

While total medical liability premiums in the rest of the U.S. 

rose 945 percent between 1976 and 2009, the increase in California 

premiums was less than one-third of that at just about 261 percent. 

Recent public polls found that a majority of Americans support 

reasonable limits on noneconomic damages and believe that medical liability lawsuits are a primary reason for rising health-care 

costs. 

We look forward to the introduction of the HEALTH Act that 

mirrors California’s reforms and also protects current and future 

medical liability reforms at the State level. 

By supporting patients’ safety initiatives alongside enacting 

meaningful medical liability reform like the HEALTH Act, Congress has the opportunity to protect access to medical services, reduce the practice of defensive medicine, improve the patient-physician relationship, support physician practices and the jobs they create, and curb a wasteful use of precious health-care dollars: the 

costs, both financial and emotional, of health-care liability litigation. 

On behalf of the AMA, I would like to extend our appreciation 

for the leadership of the committee. And the AMA looks forward to 

13 

working with you all to pass Federal legislation that would bring 

about meaningful reforms. 

And thank you. 

[The prepared statement of Dr. Hoven follows:] 

PREPARED STATEMENT OF ARDIS D. HOVEN


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Mr. SMITH. Dr. Hoven, thank you. 

And Ms. Doroshow? 

TESTIMONY OF JOANNE DOROSHOW, M.D., EXECUTIVE 

DIRECTOR, CENTER FOR JUSTICE AND DEMOCRACY 

Ms. DOROSHOW. Thank you, Mr. Chairman, Mr. Conyers, Members of the Committee. 

The Center for Justice and Democracy, of which I am executive 

director, is a national public interest organization that is dedicated 

to educating the public about the importance of the civil justice system. This is the fourth time I have been asked to testify before a 

congressional Committee in the last 9 years on this very important 

subject of medical malpractice, and I am honored to do so. 

I also spoke at two different informal hearings, chaired by Mr. 

Conyers, which featured families, including children, from all over 

the country, whose lives were devastated as a result of medical 

negligence. One of those hearings lasted 4 hours, as victim after 

victim told their stories and pleaded with Congress not to cap damages and enact tort reform. They are all paying rapt attention 

today from afar, and I will do my best to represent them. But I do 

hope this Committee decides to hear from them directly, because 

these families are always the forgotten faces in the debate about 

how to reduce health-care and insurance costs. 

While I understand this is an oversight hearing and we do not 

know what bills yet may be considered by the Committee, typically 

the push has been for caps on noneconomic damages and other 

measures that force patients who are injured by medical negligence 

or the families of those killed to accept inadequate compensation. 

Meanwhile, the insurance industry gets to pocket money that 

should be available for the sick and injured, and they force many 

to turn elsewhere, including Medicaid, further burdening taxpayers. 

And, by the way, with regard to the California situation, rates 

did not come down in California for doctors until 1988, when insurance regulatory reform was passed. It was not due to the cap. 

These measures will also reduce the financial incentive for hospitals to operate safely, which will lead to more costly errors. In 

fact, when the Congressional Budget Office looked into it, they 

looked at several studies that looked at the negative health outcomes of tort reform, and one of them found it would lead to a 0.2 

percent increase in mortality and the overall death rate in this 

country. That is another 4,000 killed. 

Now, while I cover many issues in my written statement, I want 

to highlight a few other points. 

First of all, there is an epidemic of medical malpractice in this 

country. It has been over a decade since the Institute of Medicine 

study finding 98,000 dying in hospitals each year, costing $17 billion to $29 billion, and experts agree there has been no meaningful 

reduction in medical errors in the United States. In fact, in November, just last November, HHS reported that 1 in 7 hospital patients 

experience a medical error; 44 percent are preventable. 

Second, medical malpractice claims and lawsuits are in steep decline, according to the National Center for State Courts and the insurance industry’s own data. Plus, to quote from the Harvard 

20 

School of Public Health study that the Chairman mentioned, ‘‘Portraits of a medical malpractice system that is stricken with frivolous litigation are overblown, and only be a tiny percentage of med 

mal victims ever sue.’’ In fact, this is the press release from Harvard, issuing that study, that said, ‘‘Study casts doubt on claims 

that the medical malpractice system is plagued by frivolous lawsuits.’’ 

Med mal premiums have been stable and dropping since 2006. 

And if you read the industry’s trade publications, you will find out 

that insurers so overpriced policies in the early part of the last decade that they still have too much money in reserves and that rates 

will continue to fall. And this has happened whether or not a State 

has enacted tort reform. 

As far as Texas, health-care costs did not come down when caps 

passed, at all. Applications for new licenses are only part of the picture. When it comes to physicians engaged in patient care—in 

other words, considering physicians who retire, leave the State, or 

stop seeing patients—the data shows that the per capita number 

has not grown. In fact, the number grew steadily through 2003 and 

then leveled off. This is not a pattern you would expect if 2003 tort 

reform law was responsible. 

When competing for physicians, Texas is more hampered by the 

extraordinary size of its uninsured population, which exceeds just 

about every other State. 

In terms of defensive medicine, CBO found that was not pervasive, 0.3 percent, from slightly less utilization of health-care services, but even this is too high. What CBO did not consider, for example, are the burdens on Medicaid when there are no lawsuits or 

the fact that Medicare and Medicaid have liens and subrogation interests in a judgment, so if the lawsuit can’t be brought, they can’t 

be reimbursed. All of these costs need to be added in. 

Finally, these bills all ignore the insurance industry’s major role 

in the pricing of medical malpractice insurance premiums, an industry that is exempt from antitrust laws under the McCarran-Ferguson Act. This needs to be repealed. 

We need to do more to weed out the small number of doctors responsible for most malpractice and reduce claims, injuries and 

deaths, and lawsuits. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Doroshow follows:] 

21 

PREPARED STATEMENT OF JOANNE DOROSHOW


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Mr. SMITH. Thank you, Ms. Doroshow. 

Dr. Weinstein? 


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TESTIMONY OF STUART L. WEINSTEIN, M.D., 

HEALTH COALITION ON LIABILITY AND ACCESS 

Dr. WEINSTEIN. Thank you, Chairman Smith and Ranking Member Conyers, for holding this important hearing to consider fixing 

our country’s broken liability system. 

I am Stuart Weinstein. I am the Ponseti Chair and professor of 

orthopedic surgery and professor of pediatrics at the University of 

Iowa. I have been a practicing pediatric orthopedic surgeon for 

more than 35 years. I am the past president of the American Academy of Orthopedic Surgeons and the American Orthopedic Association. 

I would like to begin today by asking each of you to put yourself 

in someone else’s shoes. Imagine you are a young, pregnant mother 

living in rural America with no OB/GYN practitioner or your local 

hospital has closed its door to obstetrics. Or imagine you are a 

young doctor, saddled with debt, trying to pick a specialty. Despite 

the great need for OB/GYNs, neurosurgeons, trauma physicians, 

and general surgeons, you choose a safer specialty because of risk 

of lawsuit. And, finally, imagine you are an orthopedic surgeon, in 

practice for three decades, but you are facing similar high costs for 

liability insurance and the threat of potential litigation. To reduce 

your liability, you decide to avoid high-risk cases like trauma cases, 

or maybe you decide to retire altogether. 

Dilemmas like these play out across America every day, as medical lawsuit abuse undermines both our health-care system and the 

doctor-patient relationship. Moreover, medical lawsuit abuse is 

driving up health-care costs at a time when we are still reeling 

from one of the worst recessions in modern times. 

I am here today to ask you to create a climate for patient-centered care by reforming the medical liability system that continues 

to put everyone’s health care at risk. The current system is clearly 

broken, and there is widespread agreement amongst lawmakers, 

health-care policy experts, opinion leaders, and the public that reform is needed. 

Today, more than 90 percent of OB/GYNs have been sued at 

least once. One-third of orthopedic surgeons, trauma surgeons, 

emergency doctors, and plastic surgeons are sued in any given 

year, and neurosurgeons once every 2 years, on the average. And, 

as you know, most claims are without merit. This toxic litigation 

environment is fundamentally changing the doctor-patient relationship. It is driving doctors to get out of medicine or to practice defensive medicine. 

Defensive medicine is the antithesis of health-care reform because it increases health-care costs. And it has the potential to 

lessen access to care and quality of care in two ways. 

First, doctors practice assurance behavior, which includes ordering tests, particularly imaging studies, performing diagnostic procedures or referring patients in order to provide an extra layer of protection against abusive lawsuits. A recent Gallup survey found that 

the fear of lawsuits was the driver behind 21 percent of all tests 

and treatments ordered by doctors, which equates to 26 percent of 

all health-care dollars, a staggering $650 billion. 

Defensive medicine also includes avoidance behaviors, where doctors eliminate high-risk procedures like head injury, trauma surVerDate Aug 31 2005 12:08 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6601 H:\WORK\FULL\012011\63871.000 HJUD1 PsN: 63871
51 

gery, vaginal deliveries, or procedures prone to complications, and 

they avoid patients with complex problems or patients who seem 

litigious. 

In 2008, almost half of America’s counties had no practicing obstetricians. This shouldn’t be happening in America. And, unfortunately, the PPACA was not comprehensive reform, as it didn’t address this critical issue. 

There are remedies to fix this broken system, but it is imperative 

that we act now before defensive medicine practices, and costs associated with it, becomes the standard of care, before health-care 

costs go higher and unemployment along with it, before doctor 

shortages change the very nature of our health-care system. 

Successful reform efforts in States, especially California and 

Texas, have given us a blueprint for Federal medical liability reform legislation. HCLA has outlined several legislative proposals 

that preserve State laws already working effectively to make the 

medical liability system fair for both patients and health-care providers, but also broaden coverage across the Nation. 

I would like to close by telling you about a Maryland gynecologist, Dr. Carol Ritter, who stopped delivering babies in 2004 

when her liability premiums hit $120,000 a year. She couldn’t deliver enough babies to pay the trial bar’s tab. Today, Dr. Ritter 

maintains a gynecology practice and still delivers babies, but she 

does it in Haiti and Honduras and Bosnia, where she joins relief 

efforts helping women in these impoverished places get obstetrical 

care, including delivering babies. She says she does it for the sheer 

joy of what she does best, but she can’t do it in Maryland. 

I would say to you today that something is very wrong when a 

caring, committed physician like Dr. Ritter can’t bring an American 

baby into this world for fear of frivolous lawsuits. Ladies and gentlemen, you have the ability and, I think, the responsibility to help 

right that wrong. 

Thank you very much. 

[The prepared statement of Dr. Weinstein follows:] 

52 

PREPARED STATEMENT OF STUART L. WEINSTEIN


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Mr. SMITH. Thank you, Dr. Weinstein. 

And I will recognize myself for questions and, Dr. Hoven, I would 

like to address my first question to you. 

You heard mentioned a while ago and you know, of course, that the Congressional Budget Office estimates that we would save $54 

billion over 10 years if we reduce the cost of defensive medicine. 

There are other studies—for instance, the Pacific Research Institute says that defensive medicine costs $191 billion. A Price 


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Waterhouse Coopers study puts it at $239 billion. And Newsweek 

reports that, all told, doctors order $650 billion in unnecessary care 

every year. 

I don’t know which of those figures is correct, but they all point 

to the same direction, which is defensive medicine is expensive and 

costs, let’s say, at a very minimum, tens of billions of dollars, probably, every year. 

My question is this: Who pays for the cost of all that defensive 

medicine? 

Dr. HOVEN. Thank you. 

We all pay for the cost of that defensive medicine. At the end of 

the day, patients pay for it. We pay taxes that pay for it. We all 

pay, ultimately, for the cost of that defensive care. 

Now, it is very important to realize, in the culture of fear in 

which we are all practicing medicine now—and I use that term because I think it is very real—that most physicians want to practice 

medicine the best possible way they can. They want to do the best 

job they can. But what they recognize is that their clinical judgment is not allowed to carry any weight in the court of law, so that, 

in fact, we do these things for assurance to protect ourselves. And, 

at the end of the day, that is where those costs do come around. 

Mr. SMITH. Yeah, okay. Thank you, Dr. Hoven. 

Dr. Weinstein, the Congressional Budget Office estimates that, if 

we were to enact medical liability reform, premiums would drop 25 

to 30 percent. Who benefits from a drop in premiums of 25 to 30 

percent? Or maybe I should say, is the benefit limited to the physician and medical personnel or not? 

Dr. WEINSTEIN. I think, ultimately, Mr. Chairman, is that when 

medical liability premiums begin to drop, the culture of fear 

amongst physicians eventually will change. This is a cultural 

change that will have to occur over time. And once that cultural 

change occurs, then the practices of defensive medicine, which you 

have heard about over and over again, will eventually change, as 

well, and our health-care costs will go down. So, ultimately, patients and the American public will benefit. 

Mr. SMITH. Patients and the consumers benefit. 

My last question is to both Dr. Weinstein and Dr. Hoven. And 

I want to ask you all to respond to a point that Ms. Doroshow 

made, where she said that, basically, it wasn’t medical liability reform that reduced premiums, it was insurance reform. And she 

gave the example of California. 

Who would like to respond? Either California or Texas. 

Dr. Hoven? 

Dr. HOVEN. I will go first. 

It takes 8 to 10 years to see the effects of these reforms when 

they are enacted. There really is not firm, hard evidence that, in 

fact, the insurance change was the result. It was the fact that, 

across the country, it takes 8 to 10 years to begin to see the evolution of change when these reforms are put in place. 

Mr. SMITH. Okay. 

And Dr. Weinstein? 

Dr. WEINSTEIN. Mr. Chairman, I think that all would agree that 

the system in California compensates the patients in a much more 

75 

rapid fashion and also more appropriate, so that patients who are 

indeed injured get the majority of the reward. 

Mr. SMITH. Okay. 

And, Dr. Weinstein or Dr. Hoven, respond to this, if you would. 

In regard to the California insurance reform—I am looking at a 

newspaper article. It said that Proposition 103 that required a rollback of insurance premiums and not California’s health-care litigation reforms have controlled medical professional liability premiums. That is the assertion. But, according to the Orange County 

Register, ‘‘A rollback under Proposition 103 never took place because the California Supreme Court amended Proposition 103 to 

say that insurers could not be forced to implement the 20 percent 

rollback if it would deprive them of a fair profit.’’ 

So it is hard to see the correlation, therefore, between the insurance reform and the drop in premiums. And, clearly, the drop in 

premiums were a result of the medical liability reforms. 

I thank you all for your responses, and I will recognize the Ranking Member for his questions. 

Mr. CONYERS. Thanks, Chairman. 

And I thank the witnesses. 

Where are we now in terms of the Health Care Reform Act, 

which sometimes is derogatorily referred to as ObamaCare—I use 

the term because I think it is going to go down historically as one 

of the great advances in health care. 

But didn’t the Health Care Reform Act, which still, by the way, 

is the law of the land and will be until the President signs the repeal, which I wouldn’t recommend anybody to hold their breath 

on—we provided money for examining this very same subject, Section 10607. 

Does anybody know anything about that here? 

Yes, sir? 

Dr. WEINSTEIN. Mr. Conyers, are you referring to the demonstration projects? 

Mr. CONYERS. Yes, the $50 million for a 5-year period that—demonstration grants for the development to States for alternatives to 

current tort litigation. That is right. 

Dr. WEINSTEIN. If I could address that question, I would say that 

the way the demonstration projects—which haven’t been funded, I 

don’t believe, yet—but the way the demonstration projects are outlined, I believe that the patients can then withdraw at any time 

and choose another alternative. 

And I am a full-time educator/clinician scientist, and I would say, 

when you design a research study which allows patients to cross 

over or change, you don’t get good information at the end of the 

day. That is not the good scientific method, if you will, if you want 

to find out what works best. So I would argue that the way that 

is designed has a flaw to it. 

And, also, there have been demonstration projects across the 

States for a number of years. 

Dr. HOVEN. If I could comment? 

Ms. DOROSHOW. Could I—— 

Mr. CONYERS. Sure, you can. 

Ms. DOROSHOW. Actually, in conjunction with that provision in 

the health-care bill, HHS has actually awarded, now, a number of 

76 

grants to many States, up to $3 million, to develop alternative procedures and other kinds of patient-safety-oriented litigation reforms. 

So those grant proposals were already given; there was money. 

And these demonstration projects are in the process of being explored right now at the State level. I live in one State where that 

is true, New York. 

Mr. CONYERS. Well, are we here—can I get a response from all 

of our witnesses about the whole concept of providing health care 

for the 47 million or more people that can’t afford it? Are any of 

you here silently or vocally in support of a universal health-care 

plan? 

Dr. HOVEN. If I may speak to that, sir? 

Mr. CONYERS. Sure. 

Dr. HOVEN. The American Medical Association recognizes that 

the PPACA is not a perfect bill, but it is a first step in getting us 

to where we need to be in this country—medical liability reform, 

alternative mechanisms for dispute resolution that are to be funded 

through that legislation are under way as we speak. 

We in no way support a mechanism that does not recognize that 

every person in this country needs affordable care and access to 

quality health care. 

Mr. CONYERS. Well, the bill that was just repealed yesterday provided for millions of more people getting health care because we 

raised the ceiling on Medicaid and we allowed the inclusion of children in the parents’ health-care plan until age 26, a 7-year increase. Did that help any? 

Dr. HOVEN. We will wait and see. 

Mr. CONYERS. We will wait and see? You mean you will wait to 

see if there are any parents that want to keep their kids included 

for 7 more years? I haven’t found one yet that doesn’t want that 

provision in the bill. 

Dr. HOVEN. Let me go back to my earlier comments. Access to 

care for everyone is what we want and need in this country. 

Mr. CONYERS. Well, I know it. Yeah, that is a great statement. 

That is what I want, too. And that is why I was asking you about 

some of the provisions of the bill that was just dunked last night 

by the 112th Congress. 

But I thank you, Mr. Chairman. 

Mr. SMITH. Okay, thank you, Mr. Conyers. 

The gentleman from New York, Mr. Reed, is recognized for his 

questions. 

Mr. REED. Well, thank you, Mr. Chairman. 

I thank the witnesses for appearing today. 

I will ask Dr. Weinstein, when I looked at the National Commission on Fiscal Responsibility and Reform, the President’s commission to explore ways to reduce the deficit, it was recommended in 

there that health-care litigation reform as a policy could save 

money and go to limit the deficit. The deficit is a huge issue and 

a priority for many new Members of Congress, of which I am one. 

Do you agree that lawsuit reform could and would reduce the 

deficit? 

Dr. WEINSTEIN. Yes, sir, I do. I think that has been shown. I 

think the CBO report that Senator Hatch had requested informaVerDate Aug 31 2005 12:08 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 H:\WORK\FULL\012011\63871.000 HJUD1 PsN: 63871
77 

tion on showed it would reduce it by $54 billion over 10 years. And 

depending on what study you look at, I think there has been widespread discussion in the media, by Members of Congress, and also 

by various groups who have looked at this issue. Senator Kerry and 

Senator Hatch on ‘‘This Week’’ on ABC, I think, both felt that this 

would be a significant step forward, addressing the medical liability issue. 

So I think that, to us, there is no question that this would, indeed, reduce health-care spending. 

Mr. REED. Dr. Hoven, would you agree? 

Dr. HOVEN. I most certainly would agree. I think, clearly, that 

is not chump change we are talking about. And we clearly need to 

move ahead. And, you know, that is a conservative estimate, and 

it may even be greater than that. 

Mr. REED. And, Ms. Doroshow, would you agree or disagree with 

that? 

Ms. DOROSHOW. I absolutely disagree with that. 

I think that what CBO did unfortunately avoided a number of 

very important issues that will end up increasing the deficit, burdening Medicaid and Medicare, in particular—three things, in particular. 

One is, when you enact these kinds of severe tort reforms, there 

are many people with legitimate cases that cannot find attorneys 

anymore and cannot bring cases. This is well-documented as having happened in California. In fact, you had a witness before this 

Committee in 1994 testifying to that effect. And it is certainly happening in Texas. So you have many people that are going to end 

up going on Medicaid that otherwise would have been compensated 

through an insurance company. 

Second, as I mentioned, there are liens and subrogation rights 

that Medicare and Medicaid have when there is a judgment or a 

verdict in a lawsuit. In other words, they can get reimbursed. If 

there is no lawsuit, that reimbursement is gone. So they lose 

money in that regard. 

Third, these kinds of measures are going to make hospitals more 

unsafe. There are going to be many, many more errors. Even the 

CBO, in its letter to Senator Hatch, talked about one study that 

would increase the mortality rate in this country by 0.2 percent. 

And that doesn’t even include the injuries. So you are going to have 

more people hurt, more expense taking care of those people. 

And, frankly, when you enact any kind of cap on noneconomic 

damages, in particular, those have a disproportionate impact on 

senior citizens, children, low-income earners. And, certainly, senior 

citizens, what has happened in Texas with the cap, those cases 

really are not being brought anymore. So senior citizens who are 

on Medicare, who should have a right to seek accountability from 

a hospital that caused negligence, no longer are bringing those lawsuits, and so Medicare is paying. 

There are lots of costs that are going to end up increasing the 

deficit. 

Mr. REED. Well, but my understanding is that we are not looking 

to discourage legitimate lawsuits. We are allowing economic damages to be fully compensated. And the subrogation rights that you 

refer to are derived from the economic damage calculation, because 

78 

those are lost wages—or medical bills, past and future, that the 

subrogation rights are derived from. 

So what we are talking is focusing on the frivolous lawsuits that 

are there. So I guess I don’t follow your logic saying that that is 

a reason why—— 

Ms. DOROSHOW. No, I think that is actually not what history 

shows. History shows, when you cap noneconomic damages, there 

are certain classes of cases that are no longer brought. 

That is what has happened in California, and that is what this 

individual testified. An insurance defense lawyer testified before 

this very Committee in 1994: Entire categories of cases can no 

longer be brought, those that involve primarily noneconomic damages. 

For example, one of the people we brought to Washington a couple of times, a woman named Linda McDougal, she was the victim 

of negligence—— 

Mr. REED. Thank you, Ms. Doroshow. I think my time has expired. 

Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Reed, for your questions. 

Ms. Doroshow, if you want to finish the sentence, you may do so. 

Ms. DOROSHOW. Well, she had an unnecessary double mastectomy because the lab misdiagnosed cancer when she didn’t have it. 

And she came down to testify a few times. But her damages were 

entirely noneconomic in nature. 

Mr. SMITH. All right. 

Ms. DOROSHOW. So a cap only affected cases—her case. 

Mr. SMITH. Okay. Thank you very much. 

The gentleman from Virginia, Mr. Scott, is recognized for his 

questions. 

Mr. SCOTT. Thank you, Mr. Chairman. 

One of the problems we have in this discussion is a lot of the 

problems are articulated and then solutions are offered and very 

little effort is made to see how the solutions actually solve the 

problems. 

Ms. Hoven, did I understand your testimony that physicians are 

routinely charging for services that are not medically necessary to 

the tune of $70 billion to $126 billion? 

Dr. HOVEN. I am talking about defensive medicine. 

Mr. SCOTT. I asked you, are those services that are not medically 

necessary? 

Dr. HOVEN. They are services that are medically indicated and 

medically necessary if you look at guidelines and criteria. However, 

what does not happen is—my clinical judgment whether to employ 

that test is disregarded. 

Mr. SCOTT. Are you suggesting that the services are not medically necessary? If liability were not a factor, would the services be 

provided or not? 

Dr. HOVEN. It depends on the case. It depends on the situation. 

It depends on the environment of care. 

Mr. SCOTT. And you are suggesting that in $70 billion to $126 

billion worth of cases, services were rendered that were not medically necessary, were not needed? 

Dr. HOVEN. That is not what I said, Congressman. 

79 

Mr. SCOTT. Well, what are you saying? 

Dr. HOVEN. I am saying that health care delivered in the examining room, in the operating room, is driven by what is based on 

clinical judgment and based on assurance testing, which is documentation and proving that, in fact, that is what is wrong with a 

patient. 

When we talk about cost control in this country, we are talking 

about the fact that—and this goes to the whole issue of cost containment, which is, if, in fact, you would recognize my medical 

judgment and allow me to decide when it is important to do a test 

or not, then our patients would be better served. 

Mr. SCOTT. By not providing the services? 

Dr. HOVEN. If, in my judgment, they don’t need it. 

Mr. SCOTT. And you are not able to—and you charge for services 

that, in your judgment, are not needed to the tune of $70 billion 

to $126 billion? 

Dr. HOVEN. I do not do that. However, let me—— 

Mr. SCOTT. Well, I mean, your testimony was that physicians are 

charging $70 billion to $126 billion more than necessary and then 

blame it on liability. Now, is that your testimony? 

Dr. HOVEN. Yes, that is my testimony. 

Mr. SCOTT. That it is not necessary, that you are providing services that are not necessary. Either they are necessary or they are 

not. 

Dr. HOVEN. We are practicing in a culture of fear. And that culture of fear lends itself to protecting oneself. I have been sued, 

Congressman. Let me tell you—— 

Mr. SCOTT. Wait a minute. I just asked you a simple question. 

You gave $70 billion to $126 billion. I just want to know what that 

represents. 

Dr. HOVEN. That is costs for tests and procedures which, if you 

look at guidelines, would be medically necessary, but my medical 

judgment is discounted. 

Mr. SCOTT. That, based on your medical judgment, should not 

have been provided. 

Dr. HOVEN. Not necessarily. 

Mr. SCOTT. Okay, well, I am not going to—Ms. Doroshow, if physicians are charging for services that are not necessary, how is that 

different from medical fraud? 

Ms. DOROSHOW. That is a good question, because in order to get 

reimbursed—to file a claim with Medicare and to be reimbursed, 

physicians have to file a form and certify that the test and procedure, the services that they provided are medically necessary for 

the health of the patient. So it does raise a question whether or not 

some claims may be false. 

Mr. SCOTT. If someone were to do a survey to say, why did you 

provide the services that were not necessary, what would be the 

convenient answer? If they ask you, why did you provide the services that were not necessary, what would be a nice, convenient—— 

Ms. DOROSHOW. To say that they—— 

Mr. SCOTT. Because they were afraid of lawsuits, so they can 

charge for services that weren’t even needed. 

80 

Ms. Hoven, did you indicate that you supported a fair determination for medical malpractice issues, so that those who had bona fide 

cases could actually recover? 

Dr. HOVEN. Most definitely, Congressman. 

Mr. SCOTT. Now you are aware that the Institute of Medicine estimates about 100,000 deaths due to medical mistakes and only 

about 5,000 to 10,000 wrongful death cases are paid every year? 

Dr. HOVEN. Well, if you look at the statistics, which you are obviously very familiar with, we are talking about apples and oranges 

here in many situations. We are talking about errors and adverse 

events as opposed to true malpractice and negligence. So I think 

you have to be careful about the terminology. 

Mr. SCOTT. So what would be the barrier to 90 to 95 percent of 

the cases that were caused my medical errors from recovering? 

Dr. HOVEN. They should be able to recover. 

What the Health Act would do would allow them to recover so 

that they would be appropriately rewarded for what happened to 

them in their loss. The Health Act talks about that in terms of all 

of the economic elements that are involved, including their health 

care. 

Mr. SCOTT. Mr. Chairman, my time has expired. 

Mr. SMITH. Thank you, Mr. Scott. 

The gentleman from Pennsylvania, Mr. Marino, is recognized for 

his questions. 

Mr. MARINO. Mr. Chairman, I yield my time. 

Thank you. 

Mr. SMITH. We will go to the gentlewoman from Florida for her 

questions, Mrs. Adams. 

Mrs. ADAMS. Thank you, Mr. Chair. 

Ms. Doroshow, I was looking at this Institute of Medicine study. 

And you cited it in your opening statement and in your packet. And 

it says that as many as 98,000 patients die annually due to medical 

errors. And what we found was that it has shown to be exaggerated 

and unreliable, isn’t that true, because based on, shortly after its 

release in 2000, the study came under heavy criticism for imprecise 

methodology that greatly overstated the rate of death from medical 

errors? 

For example, the study data treated deaths from drug abuse as 

medication errors. And Dr. Troyen Brennan, the lead Harvard researcher who compiled much of the data upon which the report was 

based later revisited his methodology and determined that the actual figure could be less than 10 percent of the IOM’s estimate. Is 

that true? 

Ms. DOROSHOW. Well, what is true is that many other studies 

since then have found far more than 98,000 deaths; many other institutions that have looked into it. And, just in November, HHS 

took a look at this issue again, and they found that one in seven 

patients in hospitals are victims of an adverse event, and 44 percent of them are preventable. 

Also, there was a study just also released in November of North 

Carolina hospitals—North Carolina is supposed to be a leader in 

patient safety—basically, finding that since the Institute of Medicine report, patient safety has not improved at all. And it really 

kind of shocked the authors of this research study, and they found 

81 

that the errors that are causing deaths and injuries are continuing 

at an epidemic rate. 

So I would say that the 98,000 figure at this point is low and has 

been probably upped by every patient and government study that 

has looked into it since. 

Mrs. ADAMS. So your testimony is that every adverse event is a 

medical malpractice? 

Ms. DOROSHOW. I am looking at the studies and how they define 

it. In, for example, the HHS study, they found one in seven Medicare patients are the victim of an adverse event, and 44 percent are 

preventable. 

Mrs. ADAMS. Again, are you saying, in your eyes, is an adverse 

event medical malpractice? 

Ms. DOROSHOW. A preventable adverse event is. 

Mrs. ADAMS. The other thing I wanted to know, I know who Dr. 

Hoven is representing and I know who Dr. Weinstein is representing. But I couldn’t find in your documentation where the 

Center for Democracy and Justice gets its funding. Could you provide the Committee with a list of your fellow and associate members so we have an accurate understanding of the point of view 

which you are presenting? 

And, also, you mentioned the demo projects and that they are 

going to get grant funding. Are you or anybody that is associated 

with the Center for Justice and Democracy able to apply for those 

grants? 

Ms. DOROSHOW. Apply for which grants? 

Mrs. ADAMS. The ones for the research that you were speaking 

about earlier. 

Ms. DOROSHOW. Well, we are tiny. We have about five people on 

our staff. We are not a high-budget operation. So we don’t really 

have the staff to do research projects like that. We hope other people would do that. 

Mrs. ADAMS. Again, I would like to know, like your fellow and 

associate members, are they going to be applying for those grants? 

Ms. DOROSHOW. Our associate members? I would have no information about any of that. I don’t know. Those grants were already—that process has already taken place. HHS has already 

granted the money. In New York, for example, it granted $3 million 

to the Office of Court Administration in conjunction with the Department of Health that is looking at a specific proposal that was 

presented to them. So, actually, I know a lot about that proposal. 

I know about a few of the others. But that has already happened. 

Mrs. ADAMS. Are you aware—and this goes to all three of you, 

and I think Dr. Weinstein and Dr. Hoven have said this, and I just 

want to make sure that you are aware also—that there are certain 

professions in the medical field that have stopped practicing because they can’t see enough patients in order to cover their insurance costs, just the cost alone; not because they have done anything wrong, but they cannot see enough patients to cover their 

malpractice insurance costs. 

Ms. DOROSHOW. Well, I hope that also you are aware that since 

2006, we have been in a soft insurance market. That is why you 

don’t hear any longer about doctors picketing on State legislatures 

and capitals and trauma centers, et cetera, that we did in the early 

82 

part of the 2000’s, when we were in a hard insurance market, when 

rates were going up 100, 200 percent for doctors. This is a cyclical 

industry. This has happened three times in the last 30 years when 

rates have shot up like this. 

To believe that the legal system has anything to do with it, you 

would have to believe that juries engineered large awards in 1975; 

and then stopped for 10 years; and then did it again in 1986 to 

1988; and then stopped for 17 years; and then started up again in 

2001. Of course, that has never been true. The claims have always 

been steady and stable. 

So what is driving insurance rate hikes is the insurance and accounting practices of the insurance industry. The solutions to that 

problem lie with the insurance industry. They should not be solved 

on the backs of injured patients. 

Mrs. ADAMS. I see my time has expired. I look forward to further 

discussion. 

Mr. SMITH. Thank you, Mrs. Adams. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 

her questions. 

Ms. JACKSON LEE. Than you, Mr. Chairman. 

Let me thank all of the witnesses for their presence here today. 

And I want you to know that each of your presentations are particularly respected and admired. 

I want to start with the representative, Dr. Hoven, from the 

American Medical Association. Coming from Houston, I think many 

of you are aware, probably so for me, that we have one of the greatest medical centers in the world, the Texas Medical Center. I am 

very proud of a recent $150 million private donation just recently 

received by the Texas—by MD Anderson. And so I have a great familiarity with a lot of physicians and applaud their work and 

thank them for some of the lifesaving research that they have been 

engaged in. 

But building on the present national law, which is, of course, the 

Patient Protection and the Affordable Care Act, Dr. Hoven, one of 

your peers or one of your colleagues who happened to serve in this 

body, Senator Frist, indicated that that law was the fundamental 

platform upon which we could now base our desire to go forward, 

to have additional provisions. 

So I just want to get a clear understanding. It is my understanding the American Medical Association supported the bill. Is 

that correct? 

Dr. HOVEN. The American Medical Association supported parts of 

the bill. We believe that access to care, covering the uninsured, decreasing costs and improving quality, are very, very important first 

steps. 

Ms. JACKSON LEE. So you are telling me doctors would not support eliminating the preexisting conditions and allowing children to 

stay on their insurance until age 26? 

Dr. HOVEN. We do support that. 

Ms. JACKSON LEE. All right. So I think a great part of the bill, 

you did, and you probably would—I am not sure; maybe because 

you are before a large group that you don’t want to say that the 

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one shaking their head behind bill. So you support the bill. Did the 

AMA support the bill? 

Dr. HOVEN. The AMA did support the bill. We have recognized 

it is an imperfect bill. 

Ms. JACKSON LEE. You are absolutely right. And I will assure 

you, those of us who are lawyers as well agree with you, because 

it is very difficult to write a perfect bill. But as Dr. Frist said, this 

is a bill that is the law of the land. In fact, he even said he would 

have voted for it. So I want to clear the record that this is a bill 

that really does answer a lot of questions, but we can always do 

better. 

Let me indicate to Ms. Doroshow, if I have it correctly, in the 

process of hearings, we have witnesses that represent the majority 

view. The majority is represented by Republicans, chaired by Mr. 

Smith. And we have a right to have a witness that maybe has a 

different perspective. 

So to inquire of your funding, whether you are getting grants, 

every hearing we will find that we will have witnesses that agree 

with the predominant view of the majority, but we will also have 

in this democracy the right to have a different view. 

I suppose you have a different view from the Health Act that is 

before us, is that correct? There is a bill—you have a slightly different view, is that my understanding, between this question dealing with tort reform or medical malpractice? 

Ms. DOROSHOW. I certainly have a different view from the other 

witnesses, yes. 

Ms. JACKSON LEE. That is the point I am making. So let me inquire. 

And as I do that, I think the point that I wanted to engage with 

Dr. Hoven was to say that I want to find every way that we can 

work with physicians. I want their doors to be open. I want them 

to be in community health clinics. I want them to have their own 

private practice. I want them to be OB/GYNs. In fact, Dr. Natalie 

Carroll Dailey, an OB/GYN, former president of the National Medical Association, I count her as a very dear friend but also someone 

who counsels me. 

So let me be very clear. Answer these two questions, to Ms. 

Doroshow: What is the reality of how many frivolous lawsuits we 

have? You have a notation of the Harvard School of Public Health. 

Give me that, quickly. 

The second thing is, insurance companies. Isn’t that the crux of 

the problem? Are the patients the ones that are charging doctors 

$120,000for insurance, or is it the insurance companies, who have 

documented that they will not lower costs even if there is a low 

count of medical malpractice lawsuits in that doctor’s area, in that 

doctor’s office, and in that State? Isn’t that true? 

Ms. DOROSHOW. Absolutely. 

Ms. JACKSON LEE. Would you just comment very quickly. And let 

me, as I say that, say to you, my mother had a pacemaker for 20 

years. She had a procedure to give her a new one. The next day 

she was dead. 

I would like you to be able to answer my questions, if the Chairman would indulge your answer, please. 

84 

Ms. DOROSHOW. Well, in terms of the Harvard study, this is important because this is the study that gets, I think, misrepresented 

often and figures about 40 percent of the cases are frivolous. 

Actually, the Harvard study found the exact opposite. In fact, I 

will read the quote from the author of that study, the lead author, 

David Studdert: Some critics have suggested that the malpractice 

system is inundated with groundless lawsuits and that whether a 

plaintiff recovers a money is like a random lottery, virtually unrelated to whether the claim has merit. These findings, the Harvard 

School of Public Health findings, cast doubt on that view by showing that most malpractice claims involve medical error and serious 

injury and that claims with merit are far more likely to be paid 

than claims without merit. 

And there is a lot of extensive research done on that study. And 

the headline of the Harvard press release was: ‘‘Study Casts Doubt 

on Claims that Medical Malpractice System is Plagued by Frivolous Lawsuits.’’ So that clearly is not a problem. 

Mr. SMITH. The gentlewoman’s time has expired. 

Than you, Ms. Doroshow. 

We will recognize the gentleman from Virginia, Mr. Forbes, for 

his questions. 

Mr. FORBES. Thank you, Mr. Chairman. 

And I want to thank all of our witnesses. I truly believe all three 

of you are here to do what you think is in the best interest of our 

patients and of the United States. 

I feel the same way about the Members that we have up here. 

But we all have specific constituencies. 

As much as I love the Chairman, I know that there are times 

that—he is from Texas, and he has a Texas constituency; the gentleman from Arkansas has an Arkansas constituency; and the gentlewoman from Florida has a Florida constituency. And that is why 

we tell everybody, the gentleman from Florida, the gentleman from 

Arkansas. 

I think it is important that we know when you are testifying who 

you are constituencies are. And two of our witnesses have set that 

forward. And Congresswoman Adams asked what I think is a fair 

question to Ms. Doroshow, and that is if she would just be willing 

to give us your sources of public funding and your membership, 

would you make those public so we know who those constituencies 

are? 

Ms. DOROSHOW. Well, we are a 501(c)3 tax-exempt organization, 

and we do not release the names and information about our donors. 

I will say that we get different kinds of funding. We get foundation 

grants, for example. In fact, I started the organization in 1998, and 

it was just myself sort of sitting there writing letters to the editor 

with a little bit of money from a friend of mine, and I got a large 

grant from the Stern Family Fund. 

Mr. FORBES. Ms. Doroshow, I just only have 5 minutes. So the 

answer is that you won’t let us know who your membership is and 

your sources of funding. 

Ms. DOROSHOW. Absolutely not. 

Mr. FORBES. Okay. Then we will take that into account. And let 

me just say that sometimes this is not as complex as we try to 

make it. 

85 

The reality is that everybody at home who watches these hearings and who looks at these issues, they know when you are talking about not changing tort reform who the true beneficiaries of 

that are. They are the trial lawyers. And the trial lawyers are the 

ones that put the dollars behind it. The trial lawyers are the ones 

that will sit here and tell us, if we don’t do this, we are going to 

be impacted, and we are could be losing our jobs. 

On the other hand, we know who some of the major beneficiaries 

are if we do tort reform, and that is some of our doctors. And they 

tell us, hey, if we don’t do this, we could be losing our jobs. 

One of the interesting things I can tell you and tell this Committee, I have never in my entire career had a single constituent 

walk into me and say, I am worried because I can’t find a trial lawyer out there. But I have them over and over coming to me now, 

truly worried that they cannot find doctors to represent them. And, 

secondly, when I hear people talk about the 2 or 3 percent of bad 

doctors, that sometimes falls on hollow ground because the same 

people that will point and say, oh, yeah, we can’t do malpractice 

reform because it is 2 or 3 percent of bad doctors fight us every 

time we try to get rid of the 2 or 3 percent of bad doctors, the same 

way they try to do when we try to get rid of the 2 or 3 percent of 

bad teachers. 

So my question to you is this, all three of you. I am a firm believer in modeling and simulation. We use it in the Armed Services 

Committee to try to model for us our most difficult weapon systems, our military strategies. We are so confident in it, although 

we know it has some flaws, that we put the entire defense of the 

United States sometime on modeling and simulation that we can 

do. 

Do we have any efforts at modeling and simulation that would 

help show us what the health care world would be like if we did 

tort reform and if we got rid of some of the litigation and whether 

it would benefit us or not? And if we don’t, what can we do to help 

you move forward in that? 

Dr. Weinstein? 

Dr. WEINSTEIN. If I could address that question, I think you have 

a model out there existing already, and that is the most recent 

Texas reform. You also have California, which has a longer history. 

And the Texas reform obviously showed lowering premiums but 

increasing numbers of critical care specialists, particularly in underserved counties. That included also pediatricians, emergency 

physicians, et cetera. 

If I might, could I come back to the issue of the frivolous lawsuits? Is that possible. 

Mr. FORBES. Absolutely. 

Dr. WEINSTEIN. Congresswoman Adams asked about this. And I 

think the issues are that the data would be that 64 percent of suits 

are either withdrawn, dropped, or dismissed because they lack 

merit. Less than 1 percent are actually decided for the plaintiff. 

And when you come to the New York study, which is called the 

Harvard study, that looked at New York data, you are talking 

about extrapolation of 280 cases of error. And in that study, errors 

could be someone falling in the hallway walking, and that was 

86 

lumped together with someone who had a significant surgical error. 

And the study has been flawed, as was pointed out. 

Mr. FORBES. Dr. Weinstein, my time is up. I don’t mean to cut 

you off, but I just wanted to say the point that you made about 

California and Texas is so accurate. We hear over and over we are 

going to do these demonstration projects, but you have two monstrous demonstration projects. And if we are going to ignore those, 

we are certainly going to ignore the other demonstration projects. 

Dr. Hoven, I don’t have time for you to give me your answer, but 

if you could submit it to us in writing. 

Or, Ms. Doroshow, we would love to have it on the modeling simulation part. 

Mr. SMITH. Thank you, Mr. Forbes. 

The gentleman from North Carolina, Mr. Watt, is recognized for 

his questions. 

Mr. WATT. Thank you, Mr. Chairman. 

Let me first apologize to the witnesses. I had to leave to go to 

a meeting and didn’t hear anything other than a small part of the 

first witness’s testimony. But I assure you I will read it. 

I didn’t come back to ask questions about what you said because 

I didn’t hear what you said. 

I came back, really, to make sure that any perspective that I 

have on this issue gets into the record, because this is where I differ with a lot of my colleagues who have thought that this is an 

appropriate issue for us to deal with in the U.S. House Judiciary 

Committee. 

I am kind of a States’ rights old-school guy on this and have always believed that tort law was a matter of State law. I concede 

that we have the authority to write tort standards for Medicare recipients and for the range of people that we do. But general tort 

law, from my perspective, has always been a matter of State law. 

I happen to live in Charlotte, North Carolina, and that is right 

on the South Carolina line, but I have never seen a hospital that 

straddles the line. They don’t operate—I have never seen a medical 

procedure take place in interstate commerce. I concede they use 

stuff that comes through interstate commerce. Everything we do 

comes through interstate commerce. But I just think that this is an 

issue that my conservative colleagues, the States’ righters, have 

lost their way on. 

Were I a member of the North Carolina State legislature, perhaps I would listen very intently to whether we need to, in North 

Carolina, do tort reform. And they have at the State legislature 

level in North Carolina. I happen to think that they are as intelligent and bright in the State legislature of North Carolina as we 

happen to be here in the Congress of the United States. We don’t 

have any monopoly on knowledge on this issue. It is a State issue. 

It has historically been a State issue. And I think my conservative 

colleagues have lost their way trying to make this a Federal issue. 

So I want that in the record. They say I used to be the chair of 

the States’ Rights Caucus on this Committee. Maybe this is one of 

those times that I got that reputation as being the chair of the 

States’ Rights Caucus. But we can debate whether, State-by-State, 

States ought to be doing this. We could even debate whether we 

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87 

ents or Medicaid recipients. But I just think, as a general proposition, having a debate about doing general tort law reform in the 

Congress of the United States offends that Constitution that we 

read the first day of this session on the floor. So that is my perspective. 

I appreciate you all being here as witnesses. But I didn’t want 

to miss the opportunity to put that perspective in the record in 

public, not that I haven’t done it before. If you go back to the 111th 

Congress, the 110th Congress, the 109th Congress, and you go all 

the way back to when I started, whatever Congress that was, I 

think I have given my perspective on this over and over and over 

again because we have been talking about this for the 18 years 

that I have been here. And my position on it hadn’t changed. 

We don’t do malpractice interstate. If a doctor is operating on 

somebody that lives in another State, they can get into Federal 

court and apply whatever State law it is that applied in that jurisdiction. 

So that is my story, and I am sticking to it. 

Mr. LUNGREN. Would the gentleman yield for a moment? 

Mr. WATT. I don’t have any time left. 

Mr. SMITH. The gentleman’s time has expired. 

Let me say to the gentleman, we appreciate his consistency over 

the years in being for States’ rights and appreciate his being an 

original founder of the States’ Rights Caucus on the Judiciary Committee. 

I will now go to the gentleman from Arkansas, Mr. Griffin, for 

his questions. 

Mr. GRIFFIN. Thank you, Mr. Chairman. 

Dr. Weinstein, I am particularly interested in the Gallup Poll 

that came out in February of 2010. Over the last year or so, I have 

talked to a lot of doctors in my district who are advocates for some 

sort of medical liability reform. During the last year, this poll came 

out, and I was struck by the numbers. And I saw that you referenced this Gallup Poll in your statement. 

The first question I have for you, is the data in this Gallup Poll, 

the one that came out in February, is it consistent with other data 

that you have seen, particularly the point that physicians attributed 26 percent of overall health care costs to the practice of defensive medicine; and then, secondly, that 73 percent of the physicians 

agreed they had practiced some form of defensive medicine in the 

past 12 months? 

So my first question is whether that data in the Gallup Poll is 

consistent with data that you have seen elsewhere. 

Dr. WEINSTEIN. Mr. Griffin, I think the data on the cost of defensive medicine vary considerably, from low estimates of $56 billion 

over 10 years to—this was the largest estimate—$650 billion. And 

you can go back to studies like Kessler and McClellan and others 

who have looked at it, and the costs of defensive medicine are 

astronomic. Physicians practice defensive medicine. It is not going 

away. 

A very well-done study, not by doctors but by lawyers, this Harvard group, shows that 90-plus percent of physicians in the State 

of Pennsylvania practice defensive medicine. Whey they surveyed 

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vania, they found that 81 percent felt they couldn’t be honest with 

patients. They viewed every patient as a potential lawsuit. And the 

most depressing statistic of all was 28 percent of residents across 

the spectrum in Pennsylvania regretted their choice of becoming a 

doctor because of the liability crisis. 

Mr. GRIFFIN. With regard to the Pennsylvania data that you are 

discussing, have you turned that data over to the Committee? 

Dr. WEINSTEIN. Yes, sir, that is in the written testimony, the reference to that. 

Mr. GRIFFIN. What procedures—could you give us some specifics 

on the procedures that are usually subject to the practice of defensive medicine? 

Dr. WEINSTEIN. Sure. Defensive medicine breaks down to two 

areas. One is assurance behavior. You need to assure yourself you 

haven’t missed something. As has been pointed out by Dr. Hoven, 

in medical school, you are trained to take a history, do a physical 

examination, and try and put this puzzle together. Occasionally, 

you will need one test, a lab test or an imaging study, and then 

you will take it in an orderly progression. 

But the climate of fear that exists from the medical standpoint 

is such that you need to keep taking that progression, that orderly 

progression, to the very end from the beginning because, should 

you miss something, your life and your ability to practice medicine 

and your craft is over. So that is the assurance behavior. 

Avoidance behavior is most medical students come out of medical 

school with—in our school, it is over $100,000 in debt. So when 

they choose a career, they come out of our orthopedic surgery residency able to take care of anybody who is brought in off the highway who has had a traumatic injury and put them together again, 

but the majority of them don’t want to do that. They don’t want 

to cover the emergency room because that is a high-risk environment. So you avoid things that are high risk. You avoid OB. If you 

are a neurosurgeon, you don’t take care of children head injuries. 

A doctor doesn’t do vaginal deliveries or any deliveries at all. So 

that is how the avoidance behavior affects the American public. 

Mr. GRIFFIN. So, getting down to the specific medical procedures 

that are usually subject to that, you mentioned head injuries; you 

mentioned OB/GYN. Can you get even more specific in terms of the 

actual procedures? 

Dr. WEINSTEIN. Well, I think just head injuries in children. 

There are very few neurosurgeons willing to take care of a head injury in a child. At one time in this town, 40 percent of OB/GYNs 

weren’t doing deliveries. This was a few years ago. One in seven 

OB/GYNs no longer just deliver babies. OB/GYNS now get, on average, get out of obstetrics at age 48, which would be a mid-career 

point. You are just reaching your peak. You have got another 20 

years of practice. But now OB/GYNs stop practicing obstetrics at 

age 48 because of the liability risk. 

Mr. GRIFFIN. If you have a number of tests that are being conducted using equipment and using resources and, in some instances, they are not necessary, they are more to assure or to 

avoid, can you comment on that crowding out tests that need to be 

conducted that are necessary? 

89 

Dr. WEINSTEIN. I think that when you crowd a system with—I 

won’t say that they are unnecessary tests. The gentleman earlier 

was sort of implying that these tests are illegal that you are doing; 

you are defrauding Medicare. I think that is not the truth. But, basically, as I mentioned, when you progress to solve a puzzle in taking care of a patient, you follow an orderly progression. If this 

doesn’t work, then we will do this study. We will do a CT scan or 

a myelogram or an MRI. But we can’t afford to do that any more. 

So what happens is you use valuable resources, imaging resources in particular, to do defensive medicine to take that step 

number 10 and bring it down to step number 2, and you deprive 

someone who actually needs that resource from the use of it. 

Mr. GRIFFIN. So, if a young child who has a head injury comes 

into the emergency room, an ideal situation, you are saying a doctor would look at that child and say, well, I am going to start at 

step one. And if I think I need to go to step 2 on my way to 10, 

then I will do that progressively. But in the current environment, 

they see the child and they automatically say, we have got to do 

1 through 10. 

Dr. WEINSTEIN. Well, I think if there is a pediatric 

neurosurgeon or a neurosurgeon willing to take care of that injury at that hospital, because I think three-quarters of our emergency rooms are at risk because of the availability or lack of availability of on-call specialists, that doctor will proceed with the entire 

battery from step one. 

Mr. GRIFFIN. And not progressively. 

Dr. WEINSTEIN. Not necessarily in an orderly, progressive fashion, which you learned in medical school. 

Mr. GRIFFIN. Sure. 

Mr. SMITH. Thank you. Mr. Griffin. I appreciate the questions. 

The gentleman from Georgia, Mr. Johnson, who had the advantage of going to law school in Texas—is recognized for his questions. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Dr. Weinstein, it is a fact, is it not, that doctors are human 

beings? 

Dr. WEINSTEIN. Yes, sir, they are. 

Mr. JOHNSON. And it is also a fact that human beings are not 

perfect. Isn’t it true? 

Dr. WEINSTEIN. Absolutely. 

Mr. JOHNSON. So doctors, just like human beings, make mistakes. 

Would you disagree with that, Dr. Hoven? 

Dr. HOVEN. Errors occur. 

Mr. JOHNSON. Errors occur. Mistakes can be made. Isn’t that 

true? 

Dr. HOVEN. They can. 

Mr. JOHNSON. By doctors. Correct? 

Dr. HOVEN. That is true. 

Mr. JOHNSON. And so now when a doctor makes a mistake, it can 

cause a death or it can cause a diminished quality of life in the victim. Would anybody disagree with that? 

Hearing no objection or hearing nothing, I will assume that you 

agree with me on that. 

90 

That diminished life of a victim of what I will refer to as medical 

negligence, it has a value that a jury puts on it, and we call that 

noneconomic loss what, Lawyer Doroshow? What do we call that 

noneconomic loss, recovery for—— 

Ms. DOROSHOW. Permanent disability, blindness, disfigurement, 

mutilation. 

Mr. JOHNSON. Pain and suffering for whatever may arise as a result of the doctor’s negligence. Pain and suffering. Noneconomic 

loss. That is worth something, don’t you think? 

Now the question is, how much is pain and suffering worth? That 

might be a little different for Quanisha Scott who, back in Little 

Rock, Arkansas, in 2007, a 29-year old, went for a partial thyroidectomy to remove a goiter, and 12 hours later, she began to develop 

a shortness of breath and began feeling her neck tighten. Despite 

complaints to the nurses, her condition was not appropriately monitored or reported to a physician. She went into respiratory arrest 

and suffered severe brain damage. It was later discovered that she 

had a hematoma at the site of the surgery. She is now bedridden 

and totally dependent on her mother for care. 

Now that is pain and suffering. Do you think that pain and suf- fering is worth more than an arbitrary cap of $250,000? If you do, 

I disagree with you. 

If you think that Lauren Lollini out in Denver should be limited to $250,000 for pain and suffering—she went to a Denver hospital 

for kidney stone surgery in February of 2009. Six weeks later, her 

health began to deteriorate, with feelings of exhaustion and a loss 

of appetite. After a week of her illness, she became jaundiced and 

had an inflamed liver. The doctors at an urgent care clinic diagnosed her with hepatitis C. Thirty-five other patients became infected with hepatitis C at that hospital at the same time. A State 

investigation revealed that the outbreak began with a hospital staff 

person who used hospital syringes and painkillers during drug use. 

Ms. Lollini is now convicted and sentenced to a lifetime of pain and suffering. How much is that worth? Is that worth $250,000? 

No. It is worth a whole lot more than that. 

And what this legislation does is puts an arbitrary cap of 

$250,000 on noneconomic losses; pain and suffering. It is actually 

an affront to the United States Constitution, the 7th Amendment, 

which guarantees people a right to a jury trial when the amount 

in controversy is in excess of $20. 

So, on one hand, we are talking about eliminating health care for 

everybody, and now we are talking about, 1 day later, we are talking about denying access to the courts for people who have been 

hurt. 

That is about all I have got to say. 

Thank you, Mr. Chairman. 

Mr. LUNGREN [Presiding]. The gentleman’s time has expired. 

Next, the Chair recognizes Mr. Ross from Florida for 5 minutes. 

Mr. ROSS. Thank you, Mr. Chairman. 

Being from Florida, it is interesting, we did a little bit of research, and we saw that for an internal medicine physician, they 

pay as much as $57,000 for medical malpractice, but yet in Minnesota, they pay just a little bit more than $3,000, which makes 

you wonder whether the injuries are more severe in Florida than 

91 

they are in Minnesota or whether it is a result of the litigation environment. 

And what I would like to do is just step away from the substantive part of what we have been talking about and not talk 

about damages or awards, but let’s talk about the procedure. For 

example, in my practice, I will probably say that the vast majority 

of my cases have resolved at the mediation level. Whether it be 

court-ordered or voluntary, mediation seems to work. 

And I guess, Ms. Doroshow, I would ask you, would you not 

agree that dispute resolution, as opposed to an actual trial, is more 

efficient, more effective in getting the needed benefits to the injured parties? 

Ms. DOROSHOW. Ninety percent of cases do settle, but it is because of the threat of a jury trial, the possibility of a jury trial, that 

that happens. You take away the jury trial option, and that won’t 

happen. 

Mr. ROSS. I am not saying take away the jury trial, but I am also 

saying that when you are in the dispute resolution, a lot of factors 

come into play as to why you want to settle the case, whether it 

be because of the facts or the law. And in some cases, it is the burden of proof, is it not? 

Ms. DOROSHOW. Well, the cases, the studies that I have looked 

at least, show that the cases that settle, there is negligence, there 

is error, there is injury. The cases that end up—the small number 

of cases that end up going to trial are the ones where it is a little 

more unclear, and they need a trial to resolve it. 

So I think the system as it is right now is very efficient because 

most cases do settle. And that is really a system that really 

shouldn’t be played around with. It is working now. 

Mr. ROSS. But in terms of burdens of proof, I mean, different jurisdictions have like scintilla of evidence as opposed to clear and 

convincing. And that, would you not agree, that a burden of proof 

will be a factor that comes into play as to whether you want to settle a case? 

Ms. DOROSHOW. For example, in Texas, for emergency room injuries, they made the burden of proof so incredibly difficult that it 

has knocked out all—every single emergency room negligence case. 

So what has happened there is the state of care in emergency 

rooms has become much more unsafe. And that is sort of what happened there. So, yeah, it does vary, and State law does determine 

that. 

Mr. ROSS. Dr. Hoven, with the AMA, are there not practice protocols that physicians, groups, specialties, subscribe to in the performance of their duties? 

Dr. HOVEN. Thank you for that question. Yes. 

The AMA has been upfront going forward in many years, in fact, 

since the mid-1990’s, in terms of measures, development, quality 

guidelines, outcome objectives. We have had a major role in this, 

and it has been applicable. And it is now standard of care. These 

guidelines are extremely useful in allowing us for evidence-based 

care. 

Mr. ROSS. Not only extremely essential, but they sometimes lead 

to the practice of defensive medicine. In other words, if your practice protocol requires that if this diagnosis is made, then this form 

92 

of treatment is required; sometimes physicians may do that even 

though they may not need to just to stay within the realms of the 

practice protocols. 

Dr. HOVEN. That is correct. And in fact, legislation needs to be 

out there that gives me, using my clinical judgment and my clinical 

knowledge, the ability to provide the best care for that patient at 

that particular point in time. 

Mr. ROSS. Then, Dr. Weinstein, wouldn’t you agree that if we 

had established practice protocols and we required by way of the 

funding of Medicaid or Medicare that it is contingent—the receipt 

is contingent upon established practice protocols in each jurisdiction and those practice protocols are followed—and the burden of 

proof would then have to shift from the physician to the plaintiff 

to show that by way of either clear and convincing evidence that 

they deviated from the practice and protocols or committed egregious error, would that not in and of itself provide a substantial reduction in the amount of litigation and the amount of awards out 

there? 

Dr. WEINSTEIN. Well, I think that, first of all, all medical groups, 

including the AMA and others, have been working on guidelines, 

appropriateness criteria to help physicians establish a safer method 

of practice. But all patients don’t fit in every single guideline. Patients are individuals. They have different comorbidities. And so 

they provide a general framework in which to start. But it is not 

a one-size-fits-all. Medicine is not like a cookbook that you follow 

this step and go this step. It has to be a physician interacting using 

their clinical skills to determine whether that guideline fits that 

particular patient or that appropriateness criteria needs to deviate 

for that. 

Mr. ROSS. And in those cases where practice protocols are employed, should not the practicing physician have at least the defense that the burden of proof would now shift—that the doctor has 

established that he did the following protocols that were required 

of that particular specialty, and now there must be a showing by 

a greater weight of the evidence, clear and convincing evidence, 

that then the physician deviated from or committed egregious 

error. 

Dr. WEINSTEIN. Well, I think—again, I am not a lawyer—I can 

only speak from a physician’s standpoint—that the guidelines and 

appropriateness criteria are very good foundations for me as a 

practitioner to follow or to look at when I see an individual patient. 

But I have to use my skill and judgment acquired over, in my case, 

35 years of practicing medicine, to decide if my patient fits exactly 

that paradigm. Otherwise, I need to have the ability to not have 

my hands tied. Otherwise, I am going to hurt my patient. 

Mr. LUNGREN. The gentleman’s time has expired. 

The gentleman from South Carolina, Mr. Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Ms. Doroshow, I am going to ask you a series of what I hope are 

narrowly tailored questions in hopes of an equally narrowly tailored answer. Do you support any toughening of rule 11 sanctions 

for frivolous lawsuits, lawsuits that are dismissed or lawsuits 

where summary judgment is granted? 

93 

Ms. DOROSHOW. I think rule 11 is probably sufficient enough, 

but—— 

Mr. GOWDY. But you do not support a toughening of that? 

Ms. DOROSHOW. No, I would prefer that to ever taking away the 

rights of victims and the clients—— 

Mr. GOWDY. I may not have phrased my question well, so forgive 

me for that. Do you support a toughening of rule 11 sanctions for 

frivolous lawsuits? 

Ms. DOROSHOW. I think, obviously, I would have to see the provision. I don’t have a problem with that, I mean, you know, in general. 

Mr. GOWDY. So the answer is: You don’t have a problem with 

that. 

Ms. DOROSHOW. I don’t have a problem with that. 

Mr. GOWDY. You could support that. 

Ms. DOROSHOW. Provided I looked at what you were asking me 

to support. That is a reasonable request. 

Mr. GOWDY. How about this, how about joint and several liability 

reform. Do you support that or not? 

Ms. DOROSHOW. Absolutely not. 

Mr. GOWDY. Do you support a higher quantum of proof for emergency care? 

Ms. DOROSHOW. Absolutely not. 

Mr. GOWDY. Do you support any tort reform? 

Ms. DOROSHOW. I support provisions that would repeal tort reform currently in existence in States, absolutely. 

Mr. GOWDY. Do you support any tort reform? 

Ms. DOROSHOW. For example? 

Mr. GOWDY. Well, I just gave you four of them. We were 0 for 

4. 

Ms. DOROSHOW. I support a law that would prohibit confidential 

settlements where there are public health and safety issues involved. I would support that tort reform. 

Mr. GOWDY. Dr. Hoven, many of us oppose the current health 

care law because, in our judgment, individual mandate is beginning 

to make the commerce clause so elastic as to be amorphous. For 

those of us that want to support tort reform, draw the nexus for 

us, draw the connection where it is an appropriate use of congressional power to supplant State tort laws, and while you are doing 

it, do we also surrender the States determining scope of practice 

issues if you federalize tort reform? 

Dr. HOVEN. There is a role for both. The law we are talking 

about, the Health Act, in fact supports States in what they have 

already done and proffered and what they are putting into place. 

In States that don’t have it, such as mine, Kentucky, we desperately need the Federal regulation, the Federal legislation to get 

us to a different place, for all of the reasons I have talked about 

before, which have got to do with access and cost. 

So there is a role for both. But the Health Act recognizes that, 

I believe, and would achieve what we are looking for in the global 

topic of medical liability reform. 

Mr. GOWDY. And when you say the Health Act recognizes that, 

you are referring specifically to the State flexibility provision that 

doesn’t supplant current State law. 

94 

Dr. HOVEN. That is correct. 

Mr. GOWDY. Is there any concern on behalf of physicians that if 

you allow congressional encroachment, if you will, into this area, 

that Congress will also want to decide scope-of-practice issues between ophthalmologists and optometrists and nurse anesthetists 

and anesthesiologists and other traditional State issues? 

Dr. HOVEN. No. I mean, these are two separate issues. We fully 

recognize scope-of-practice issues. We deal with those; have been 

doing that for years and years. These are two different issues. 

Mr. GOWDY. You don’t think we lower the bar on the commerce 

clause at all by federalizing tort reform? 

Dr. HOVEN. I trust you. 

Mr. GOWDY. I am a lawyer. Don’t. 

Final question. Implicit—actually, more than implicit—in some 

of the questions that have been asked this morning have been very 

thinly veiled accusations of health care fraud, Medicare fraud, 

Medicaid fraud, for what we consider to be defensive medicine. 

Would you take a crack at explaining the predicament that physicians find themselves in with this culture of litigation and defensive medicine? 

Dr. WEINSTEIN. Yes, I think that, as I sort of outlined before, as 

a physician, you have skills. History, physical examination. You 

put laboratory tests or imaging studies together to come and solve 

a puzzle for what is wrong with your patient or how to treat them. 

And then there is an orderly progression. If this turns out to be 

this way, I might go into in this direction or another direction. But 

what has happened is if you have this progression of multiple steps 

to get to the end, you don’t stop at square one and say, let’s see 

how it works; how does this treatment work; if they are not getting 

better, we will do something else. 

What happens is, from the diagnostic standpoint, you do everything, because for fear that there is an adverse outcome or something happens, then you are at risk. So what happens is that the 

patient gets everything that is out there under the sun as opposed 

to just the stepwise progression toward an orderly either diagnosis 

or management plan. 

Mr. GOWDY. I would like to thank all three panelists and thank 

you, Mr. Chairman. 

Mr. LUNGREN. Thank you. The gentleman from Arizona, Mr. 

Quayle, is recognized for 5 minutes. 

Mr. QUAYLE. Thank you, Mr. Chairman, and thanks to all of you 

for showing up. This is a very important topic if we are actually 

going to address and take control of our health care costs going forward. It is an important thing if we are going to have access to 

quality care. 

My first question is to Dr. Weinstein. You state in your testimony that doctors in high-risk specialties have not only faced the 

brunt of abusive lawsuits but over the last decade have seen their 

insurance premiums rise exponentially. While some insurance premiums have leveled off recently or decreased slightly in some 

areas, they remain a serious burden for many doctors across the 

country. Moreover, with the implementation of the new health care 

bill, we may discover this has been a brief lull before the storm. 

95 

Can you expand on what you mean by the brief lull before the 

storm and why the insurance premiums might have been going off 

in a lull for a short amount of time? 

Dr. WEINSTEIN. I think that we are in a lull, if you will, until 

we see how the Health Care Reform Act plays out and what happens here in this body and across the way. But I think that right 

now we need to look at the provisions of that and what actually 

becomes law, what actually is implemented, to see whether there 

are other avenues. 

You know, just in the State of Massachusetts recently Lee the 

Supreme Court I think reinstituted a suit against a physician who 

had prescribed high blood pressure medication for his patient. That 

patient subsequently had an automobile accident where someone 

was killed, and now the physician is being sued for treating the patient’s hypertension. 

So there are always avenues that can be pursued by the trial 

bar. This is a very fertile area. The front page story of the New 

York Times in November showed how hedge funds and investment 

banks are investing in medical liability lawsuits. This is big money. 

This is big business. And it is unfortunate. But I think with the 

new health care law, we will have to see how things unfold and 

what happens as to what avenues are opened by that. 

Mr. QUAYLE. And staying on that with the high-risk specialties, 

and if you look at the aging doctor population that is happening, 

you don’t have many people going into the profession, and especially in those high-risk specialties, if we cannot actually control 

those liability insurance costs, how will that affect the quality of 

care for these different areas of expertise? 

Dr. WEINSTEIN. When you lose high-risk specialties, I think every 

American is in danger when they have a problem—let’s say in your 

State, Arizona, I think that was witnessed several weeks ago, unfortunately, but if you don’t have the specialists available and have 

level one trauma centers available in a reasonable distance, you 

know, minutes matter. And I think the American public now can 

no longer expect that they could be traveling along a highway, have 

an accident, and expect they will go to an emergency room and be 

saved. That is an unrealistic expectation because of the shortage of 

high-risk specialists or, where there are high-risk specialists, their 

unwillingness to put themselves at risk by taking on high-risk 

cases. 

Mr. QUAYLE. Do you know kind of the average, I mean, I know 

from talking to some people I know in the OB/GYN profession, it 

is over a $100,000 dollars, or in the area, just to turn their lights 

on. What is the average of some of those high-risk specialties? 

Dr. WEINSTEIN. Well, I think the ranges are significant. It depends on the State, but I think, in some areas, even in high-risk 

spine surgery, for example, you are having physicians paying several hundred—$300,000, $400,000—in liability premiums. I can’t 

tell you what the averages are. They are very high. 

Mr. QUAYLE. Dr. Hoven, I was just wondering, there is an enormous financial toll on doctors when they have to defend frivolous 

lawsuits, but what is the emotional toll, and how does that affect 

the doctor-patient relationship for that doctor going forward? 

96 

Dr. HOVEN. It is very traumatic. Doctors want to heal, provide 

care, and take the best possible care. And when, all of a sudden, 

you are confronted with a lawsuit over which you have no control 

or you are part of something else in the suit process, it devastates 

you. I was sued. I tried to talk about that little bit ago. I was sued. 

For 5 years after that—and this goes to the issue of practicing defensive medicine—I refused to see—add any new patients to my 

practice. I found myself constantly thinking, what have I missed, 

what have I missed, what have I missed, even though I know I was 

bringing the best potential care there. This affects a physician’s 

health. This affects their family’s health. And most importantly, it 

begins to affect the relationship between the patients and the doctor, because all of a sudden, that threat, that fear of threat and 

trauma, is out there. 

I consider myself a very good physician. And yet, in that process, 

I felt that I was damaged by the process. 

Mr. QUAYLE. Thank you very much. 

Mr. Chairman, I yield back. 

Mr. LUNGREN. The Chair would recognize the Chairman from the 

Subcommittee that has jurisdiction over this issue, Mr. Franks 

from Arizona, for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Dr. Weinstein, I guess my first question would be to you, and 

perhaps, Dr. Hoven, you would follow up as well. Opponents of 

medical liability reform often argue, as you know, that reforming 

the medical liability system, especially through limiting noneconomic and punitive damages, will lead to the practice of medicine itself being less safe. I think that is a pretty critically important question to answer. 

So, based on your experiences, do you believe that placing limits 

on noneconomic and punitive damages will affect whether doctors 

practice high-quality medicine or not? 

Dr. WEINSTEIN. No, I don’t, sir. It is pretty clear that the current 

system we have neither protects patients who are injured, nor does 

it make the system safer. We are not a country of infinite resources. And when you talk about economic damages, those can be 

quantified; whereas, you talk about noneconomic damages, there is 

no way those are quantifiable. And without infinite resources, it 

does not affect the quality of care of systems such as that. 

Mr. FRANKS. Dr. Hoven, do you have anything to add? 

Dr. HOVEN. Thank you. I would agree with the doctor’s comments. 

And I would also add that in this era, in the last 10 to 15 years, 

medicine, physicians have taken huge leadership roles following 

the IOM report, for example, in moving medicine to a different 

place, improving quality, improving systems, diminishing errors. So 

this discussion about physician responsibility and liability in this 

setting is difficult because we in fact have made major, major 

strides in improving health care throughout this country. 

Mr. FRANKS. Dr. Weinstein, I thought one of the most striking 

pieces of your written testimony was your discussion of how our 

broken medical liability system disincentivizes doctors from entering certain medical specialties and discourages others from performing high-risk procedures or treating really high-risk patients. 

97 

How could legal reforms similar to the California’s MICRA or the 

Health Act, which passed the House in 2003 here, positively affect 

a doctor’s decision to practice in high-risk specialties or to treat 

high-risk patients. 

Dr. WEINSTEIN. Well, I think with reasonable reform I think physician culture will change. Physicians will then feel it is worth the 

risk. There is always a risk when you talk about high-risk medicine. But it is worth the risk to be able to use the skills that you 

learned in your medical school and residency training and your fellowship training to help restore function, alleviate pain, and restore life to individuals. But unless reform such as those previous 

ones you have outlined is implemented that just won’t happen. 

Mr. FRANKS. Dr. Hoven, I have to tell you, just personally I am 

extremely grateful to the medical community because of having 

them have a tremendous impact on my own life. I had major surgeries starting out at birth. So I think that, you know, the importance of allowing doctors to pursue that calling that they have to 

try to help heal their fellow human beings is a profound significance in our society. 

If I could ask sort of a hypothetical or just sort of ask you to 

reach out, if you could do one thing—and Dr. Weinstein I’ll put you 

on deck, too. If you can answer it, it will be my last question. If 

you could do one thing in terms of public policy that we might pass 

that would strengthen the doctor-patient relationship, that would 

allow you as a doctor to work better with your patients and would 

also deliver the best care possible where you would protect both the 

patient and the doctor and the entire medical process in terms of 

liability reform, what is one thing you would do? What is the one 

priority that you would tell us, if you could only have one? 

Dr. HOVEN. Thank you. Thank you for your comments. 

And the answer to that is stabilization. The medical liability situation must be stabilized, and that stabilization includes addressing 

economic and noneconomic payments. It also has to remove from us 

in that stabilization the culture of fear and when somebody is looking over our shoulder all of the time. And that will improve and 

continue to enhance the patient-physician relationship. It will stabilize care in this country, it will improve access to care, and it will 

improve quality. 

Mr. FRANKS. Thank you. 

Dr. Weinstein. 

Dr. WEINSTEIN. And I would say we need a rational solution to 

this situation. Because, right now, it is irrational. Nobody has benefited from it. And unless we do have some type of stability injured 

patients will not get compensated appropriately, and the system 

will never get better. Because system errors require a system of 

transparency, and you can only have a system of transparency 

when you have a stable situation where everyone can work together toward the same end of making a safer health care system. 

Mr. FRANKS. Thank you all for coming. 

Thank you, Mr. Chairman. 

Mr. LUNGREN. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Goodlatte, is recognized for 5 

minutes. 

98 

Mr. GOODLATTE. Ms. Doroshow, I would like to follow up on a 

question asked by the gentleman from South Carolina, Mr. Gowdy. 

One of the questions he asked you related to whether or not you 

would support a higher proof of negligence or substandard care for 

emergency care, and you said not just no but absolutely not. 

So if we have—and all of us have at some time or another been 

in a theater, a sporting event, in a stadium or whatever where 

somebody becomes injured or ill; and the first question is, is there 

a doctor in the house. Now, you expect that doctor to identify themselves and come forward and help that individual. If they know 

very little about the circumstances, don’t know what this patient’s 

medical records are, previous history, treatment, what they might 

be allergic to, to try to save their life, you wouldn’t provide a higher 

standard of protection for that doctor under those circumstances? 

Ms. DOROSHOW. The standard is already pretty high. I mean, 

you’re not finding lots of emergency room cases moving forward in 

this country. But when you do that—first of all, the emergency 

room, according to the Institute of Medicine—— 

Mr. GOODLATTE. But you would support—you would support a 

higher standard of—— 

Ms. DOROSHOW. No. 

Mr. GOODLATTE. Well, that’s the question he asked you—higher 

standard of negligence for somebody in an emergency situation. 

Ms. DOROSHOW. Emergency rooms are the most unsafe and dangerous parts of a hospital. That is according to the Institute of 

Medicine. It is where many people go who don’t have insurance. 

Mr. GOODLATTE. How about a theater or a sporting event or 

somebody injured in an accident on the highway where a doctor 

happens to be coming by to provide assistance? 

Ms. DOROSHOW. I believe that the civil justice system that exists 

in this country is able to handle cases that go forward based on the 

State common law that exists, that has been developed by the 

State. If the State common law—and, frankly, if the State decides—— 

Mr. GOODLATTE. Well, most—just reclaiming my time, most 

States have specific statutory liability provisions in addition to the 

common law. 

Ms. DOROSHOW. Exactly. Look at Texas. What has happened in 

Texas is they have made the standard of liability for emergency 

room malpractice so high that it has knocked out virtually all 

cases. So you have a situation where a woman was in an emergency room, was misdiagnosed, as a result of that her legs have 

been cut off, and she cannot get an attorney. 

Mr. GOODLATTE. Well, I am going to reclaim my time because it 

is limited and tell you that you are again avoiding my question. 

Ms. DOROSHOW. I am not. 

Mr. GOODLATTE. What about on the highway, in the theater, at 

the sporting event, out in public, away from a medical facility, if 

a doctor provides care, volunteers that care, under those circumstances, very different than an emergency room? But I agree 

an emergency room should be different than other standards of 

care as well. But in an emergency itself, should the doctor have 

greater protection? 

99 

Ms. DOROSHOW. I believe that the law should be what the State 

common law is right now. 

Mr. GOODLATTE. I am going to go on to another question. Thank 

you. 

Dr. Hoven, some argue that lowering a doctor’s malpractice liability insurance bill does not really lower health care costs in a 

way that benefits patients. I don’t agree with that. What are your 

views on it? 

Dr. HOVEN. Well, I disagree with that statement as well. It is 

very clear that liability costs have to be something we can budget 

for and build into our costs of running a practice or a clinic. Money 

that I don’t have to spend on liability insurance I can and do turn 

back into a practice to retain a nurse to provide care to 100 diabetic patients so that our costs are lowered. So I think that we 

have to be very careful in this phraseology. But, in actuality, if I 

can budget, I know what my monies are going to be, they are not 

out of sight, I can in fact improve care and quality and access to 

my patients. 

Mr. GOODLATTE. Thank you. 

And, Dr. Weinstein, Newsweek magazine reported that younger 

physicians are especially frustrated with practicing defensive medicine. Between rising insurance rates, increasing defensive medicine, and the regulations in bureaucracy in the new health care 

law, are you concerned that in the future fewer of our best young 

students will choose to pursue medical careers? 

Dr. WEINSTEIN. Yes. I think the evidence there is very clear. 

And, again, this is borne out in the Pew Charitable Trusts study 

that was done by the Harvard Group and the 

Columbia University legal team which shows that physicians in 

all residencies are discouraged, number one, to be doctors. Twentyeight percent regretted even choosing medicine as a career. And 

that 81 percent viewed every patient they encounter is a potential 

lawsuit. I think this is a terrible state of affairs. 

So there is no question that the younger generation is profoundly 

affected in their career choices, in their practice locations, and the 

context in which they practice, in other words, what they cut down 

their skill set to and what they are willing to offer the community 

in which they live. 

Mr. GOODLATTE. They can spend a lot of years and hundreds of 

thousands of dollars to receive a license to practice medicine. And 

the cost then of liability insurance and the risk if they have to 

make a claim against that insurance or more than one claim 

against that insurance to their future as a physician, what is that 

risk? 

Dr. WEINSTEIN. Well, I think the issue here is that you—there 

are plenty of people who need good medical care that aren’t necessarily high risk. And if you feel you can have a satisfactory practice without putting your life and your family at risk by unnecessary liability many younger physicians are taking that route. 

Mr. GOODLATTE. And that is indeed the crux of the problem, that 

the quality of medical care and the availability of medical care is 

very much affected by the perception of the medical profession and 

the reality to the medical profession of the current standards with 

regard to medical liability. 

100 

Dr. WEINSTEIN. Yeah. There is no question that access and quality of care are profoundly affected by the current situation. 

Mr. GOODLATTE. Thank you. 

Thank you, Mr. Chairman. 

Mr. LUNGREN. [Presiding.] Thank you very much. 

I will yield myself 5 minutes. 

I come to this like everybody else does, as a product of my experience. I confess to you my dad was a doctor. He was a board-certified cardiologist and internist. He was chief of staff of Long Beach 

Memorial Hospital in southern California. 

I was his wayward son. I went to law school, but I spent 5 years 

doing medical malpractice defense, although I did some plaintiffs’ 

cases in southern California. My practice bracketed the time before 

MICRA and after MICRA; and for anybody to suggest that MICRA 

didn’t make a difference, you weren’t there. 

I happened to be a young attorney at the time, and I had some 

classmates from high school and college who went to medical 

school, and they were about to enter the practice of medicine. And 

a number of them left the State of California because the insurance 

rates were so high. I remember a good friend of mine who is an 

anesthesiologist who left the State. Some OB/GYNs I knew left the 

State. Some doctors who were involved in brain surgery left the 

State because of the high costs. 

I don’t know where you get these figures that it wasn’t until ’88 

that we saw any progress, because the absolute increase on a yearly basis of the premiums paid for by the doctors leveled off after 

we passed MICRA. 

It was interesting to hear the gentleman from Georgia talk about 

the noneconomic damages. That is true. That is one of the key 

parts of MICRA. It puts a limit on noneconomic damages, pain and 

suffering. Why? Because that is the most potentially abused part 

of the system. I can prove losses for future earnings. I can prove 

what the costs are, the direct costs. 

Pain and suffering, if you think about it, if before an instant you 

were to ask somebody how much would it be worth to you to lose 

your arm or your leg, they would probably say you couldn’t pay me 

enough money to do that. After the fact, when you talk about pain 

and suffering it is a very difficult figure to determine. And so you 

make a rational judgment by the legislature or the people as to 

what that limit would be. Because, otherwise, it has an adverse effect on the potential for people having access to medical care. 

I mean, it is not a perfect system. It never has been a perfect 

system. So I will just say from my standpoint, as someone who was 

there when we passed it in California, I saw a tremendous difference. 

And then when people talk about frivolous lawsuits—let’s talk 

about the real world. When a plaintiff’s attorney files a lawsuit, begins the lawsuit, he or she sues everybody in sight because he or 

she can’t be sure who was responsible. By the time you get to trial 

you ought to know as the plaintiff, plaintiff’s attorney, who you 

think really is responsible and you ought to let out the other people. And if you don’t we ought to have a very simple modified losers 

pay provision so that at the time of trial you can present to the 

judge and say if they have no case or they get less than what I am 

101 

offering now all attorney fees and costs should be borne by the 

plaintiff. 

Because I was in settlement conferences where the judge would 

say to me, I know your hospital or I know doctor C doesn’t have 

any liability, but the cost of defense will be $10,000, so throw in 

$10,000. And that was considered a, quote, unquote, settlement. 

In every case I am aware of, you have that dilemma. And so 

when you are talking about even real cases of malpractice, a lot of 

other people are involved in the case and they may settle out, but 

there was no real liability. And unless you sort of change that dynamic you are going to have this situation. 

So I have to overcome my reluctance to do this on a Federal level 

because I thought California, we were ahead of the rest of the 

country when we passed what we did. You probably couldn’t have 

passed MICRA on the Federal level at the time. 

But I am sorry my friend from North Carolina is not here because he said very clearly to me health care is not covered by the 

commerce clause. So I would hope that he would make that presentation before the courts that are considering the lawsuits right 

now. 

So I am sorry I don’t have any questions for you. Just listening 

to everything I have to put it into my sense of—no, he said if someone is not taken care of across the State border, they are in a hospital here or a hospital there, that is not interstate commerce—that 

is what he said—it is not covered by the commerce clause. 

Anyway, but having heard all of this it brings me back to the arguments that we were making in California in 1974 and 1975. And 

we made a reasonable judgment in California. Frankly, I think it 

has worked very, very well. I think it is a model for the rest of the 

country. And I don’t think there is any doubt that the specialties 

that are available in California are available in larger numbers 

today than they would have been had we not passed MICRA. 

So there is no perfect system. I think we all recognize it. What 

we are trying to do is define that which will give us the best overall 

response to a continued problem. How do we meet our challenge? 

How do we provide health care for the people of the United States? 

And the last note is I take my hat off to the medical community 

because I had major kidney surgery when I was four, I have had 

five knee surgeries, I have got a new hip, I have got a new knee, 

you repaired my Achilles tendon just a while ago. I am a walking 

example of what medical care can do for people in the United 

States. And my wife says, you are getting older; and I say, yeah, 

but I am getting new parts. So I just want to let you know, there 

is hope. 

I would like to thank all of our witnesses for their testimony 

today. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward and ask you if you would respond to those 

please as quickly as you could so that we could make your answers 

a part of the record. If we send them to you, they will be serious 

questions from Members, some of whom weren’t able to attend, 

some who had to leave, some who have more questions for you. 

102 

And I would thank you if you would seriously consider that, all 

three of you. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, again, I would like to thank the witnesses. I know it 

is an imposition on your time. I know we have to run off and do 

votes and so forth and you sit here. But we thank you very much 

for your testimony. It is very, very helpful. 

And with that this hearing is adjourned. 

[Whereupon, at 1:15 p.m., the Committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HENRY C. ‘‘HANK’’ JOHNSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA, AND MEMBER, COMMITTEE ON THE JUDICIARY


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PREPARED STATEMENT OF THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, COMMITTEE ON THE JUDICIARY


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PREPARED STATEMENT OF THE AMERICAN CONGRESS OF OBSTETRICIANS

AND GYNECOLOGISTS (ACOG) 


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PREPARED STATEMENT OF THE AMERICAN COLLEGE OF SURGEONS


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STUDY OF THE AMERICAN ENTERPRISE INSTITUTE (AEI) 


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PREPARED STATEMENT OF LAWRENCE E. SMARR, PRESIDENT/CEO, 

PHYSICIAN INSURERS ASSOCIATION OF AMERICA


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Æ 


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