U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

71–612 PDF 2013

THE COST OF THE MEDICAL LIABILITY SYSTEM 

PROPOSALS FOR REFORM, INCLUDING H.R. 

5, THE HELP EFFICIENT, ACCESSIBLE, LOW– 

COST, TIMELY HEALTHCARE (HEALTH) ACT 

OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

APRIL 6, 2011 

Serial No. 112–33 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chair 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

SUBCOMMITTEE ON HEALTH

JOSEPH R. PITTS, Pennsylvania 

Chairman 

MICHAEL C. BURGESS, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

TIM MURPHY, Pennsylvania 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

JOHN D. DINGELL, Michigan 

EDOLPHUS TOWNS, New York 

ELIOT L. ENGEL, New York 

LOIS CAPPS, California 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Joseph R. Pitts, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 1 

Prepared statement .......................................................................................... 3 

Hon. Phil Gingrey, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 5 

Hon. Lois Capps, a Representative in Congress from the State of California, 

opening statement ................................................................................................ 5 

Hon. Michael C. Burgess, a Representative in Congress from the State of 

Texas, opening statement .................................................................................... 7 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 265 

Hon. Frank Pallone Jr., a Representative in Congress from the State of 

New Jersey, prepared statement ........................................................................ 268 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 273 

WITNESSES

Lisa M. Hollier, Fellow, American College of Obstetricians and Gynecologists, 

Professor and Director, Lyndon B. Johnson Residency Program, University 

of Texas Medical School at Houston ................................................................... 12 

Prepared statement .......................................................................................... 14 

Joanne Doroshow, Executive Director, The Center for Justice and Democracy . 26 

Prepared statement .......................................................................................... 28 

Allen B. Kachalia, Medical Director of Quality and Safety, Brigham and 

Women’s Hospital, Harvard Medical School ...................................................... 71 

Prepared statement .......................................................................................... 73 

Brian Wolfman, Visiting Professor, Georgetown University Law Center, CoDirector, Institute for Public Representation .................................................... 155 

Prepared statement .......................................................................................... 157 

Troy M. Pippett, Past President, American Association of Neurological Surgeons, Past President, Florida Medical Association .......................................... 178 

Prepared statement .......................................................................................... 180 

SUBMITTED MATERIAL

Letter, dated January 26, 2011, from Mr. Burgess to President Barack 

Obama, submitted by Mr. Burgess ..................................................................... 9 

Letter, dated April 4, 2011, from the National Conference of State Legislators 

to subcommittee leadership, submitted by Mr. Waxman ................................. 227 

Letter, dated April 5, 2011, from Carmen Balber, Washington, DC, Director, 

Consumer Watchdog, to committee leadership, submitted by Mrs. Capps ..... 234 

New York Times article, dated November 14, 2010, ‘‘Investors Put Money 

on Lawsuits to Get Payouts,’’ by Binyamin Appelbaum, submitted by Mr. 

Shimkus ................................................................................................................ 238 

New York Times article, dated March 9, 2011, ‘‘One Person’s ‘Special Interest’ 

Is Another’s ‘Stakeholder,’ ’’ by Thomas Kaplan, submitted by Mr. Shimkus 246 

H.R. 5, A Bill in the House of Representatives ..................................................... 275 

Statement, dated April 6, 2011, of Lawrence E. Smarr, President/CEO, Physician Insurers Association of America, submitted by Mr. Pitts ......................... 301 

(1) 

THE COST OF THE MEDICAL LIABILITY SYSTEM PROPOSALS FOR REFORM, INCLUDING 

H.R. 5, THE HELP EFFICIENT, ACCESSIBLE, 

LOW–COST, TIMELY HEALTHCARE (HEALTH) 

ACT OF 2011 

WEDNESDAY, APRIL 6, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HEALTH, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 9:32 a.m., in room 

2123 of the Rayburn House Office Building, Hon. Joe Pitts (chairman of the subcommittee) presiding. 

Members present: Representatives Pitts, Burgess, Whitfield, 

Shimkus, Myrick, Murphy, Blackburn, Gingrey, Latta, Lance, 

Cassidy, Guthrie, Barton, Pallone, Dingell, Capps, Schakowsky, 

Gonzalez, Weiner, and Waxman (ex officio). 

Staff Present: Clay Alspach, Counsel, Health; Debbee Keller, 

Press Secretary; Katie Novaria, Legislative Clerk; John O’Shea, 

Professional Staff Member, Health; Monica Popp, Professional Staff 

Member, Health; Heidi Stirrup, Health Policy Coordinator; Phil 

Barnett, Democratic Staff Director; Stephen Cha, Democratic Senior Professional Staff Member; Alli Corr, Democratic Policy Analyst; Ruth Katz, Democratic Chief Public Health Counsel; Karen 

Lightfoot, Democratic Communications Director, and Senior Policy 

Advisor; Karen Nelson, Democratic Deputy Committee Staff Director for Heath; and Rachel Sher, Democratic Senior Counsel. 

OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF PENNSYLVANIA 

Mr. PITTS. Subcommittee will come to order. Chair recognizes 

himself for 5 minutes for an opening statement. An article in 

Health Affairs in September 2010 titled ‘‘National Costs of the 

Medical Liabilities System’’ estimated that the medical liability 

cost including defensive medicine were $55.6 billion in 2008 dollars, or 2.4 percent of total health care spending. According to the 

Kaiser Family Foundation, total payments on medical malpractice 

claims in 2009 totaled $3,471,631,100. The average claims payment 

for 2009 was $323,273. 

Let me share with you what this means to my home State of 

Pennsylvania. According to Kaiser again, Pennsylvania ranks second behind New York in the total dollars paid out in malpractice 

2 

claims at $295,459,500 and the average claims payment in Pennsylvania was higher than the national average. Pennsylvania also 

paid more malpractice claims than any State except New York, 

California, and Florida with 767 paid claims in 2009. According to 

the Pennsylvania Department of Health, nearly 20 percent of the 

physicians who practice primary care say they will leave Pennsylvania in 5 years or less, and only one in three physicians who complete their medical degree in Pennsylvania plan to remain in the 

State to practice. Over the years, numerous physicians have called 

my office to tell me how the medical liability climate in Pennsylvania has affected their practices. Usually these are OB–GYNs, but 

sometimes doctors from other specialties call. Up until a few years 

ago they would tell me and my staff that while they had planned 

to practice for 5, 6, or even more years they were retiring early because they just couldn’t afford their malpractice insurance premiums. Or, they would say they were forced to move their practices 

to nearby Delaware State to remain financially viable. Recently 

doctors have begun to tell me they are moving to North Carolina 

to set up practice. 

Apparently other States have a much less onerous medical malpractice climate and Pennsylvania’s loss is their gain. My home 

State consistently ranks as having one of the worst medical liability climates in the Nation. The high legal costs paid by Pennsylvania healthcare providers increase overall healthcare costs, limit 

access to medical care, and inhibit job growth. We all agree that 

patients who are injured by medical mistakes should be promptly 

and fairly compensated. However, capping non-economic medical 

malpractice awards does not deny patients their day in court or 

fair compensation. It merely reigns in over the top verdicts and allows conscientious doctors to afford insurance coverage and serve 

their patients. 

The current medical liability system does not work for anyone especially patients who need access to quality healthcare. Like it or 

not, patients are inescapably intertwined in this malpractice mess 

where some receive unlimited court awards and the rest of us are 

left with limited healthcare and higher cost. We need to find a balance where conscientious doctors can afford insurance coverage and 

patients can get quality care when and where they need it. 

I now yield the rest of my time to Dr. Gingrey. 

[The prepared statement of Mr. Pitts follows:] 

3 


71612.001
4 


71612.002
5 

OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. GINGREY. Mr. Chairman, thank you so much for yielding to 

me on such an important issue. And as we know this country is on 

the verge of a medical liability crisis. 

Focusing on just my specialty, Obstetrics and Gynecology, each 

OB–GYN will be sued three times in their careers. Think about 25 

to 30 years of practice. Even though 50 percent of these cases are 

eventually dropped, dismissed, or settled without a payment for the 

plaintiff, 30 percent of OB–GYN fellows report increasing cesarean 

deliveries over traditional birth, but the rate in this country is 

probably now 29 percent. Twenty-six percent have stopped performing or offering traditional births altogether over this fear of 

being sued and ending their career. But why is this significant? 

As I say, the cesarean sections can cost our health system twice 

as much if not three times as much as routine vaginal birth and 

that is just one example of what is referred to as defensive medicine. It is a glaring example, however. The order of tests or procedures simply to protect a medical provider from a lawsuit is really 

mounting. You can’t get—go to emergency room with a headache 

without coming out with a bill for a CT scan or an MRI. 

Studies, most notably one that was done by Pricewaterhouse 

Coopers, show that this defensive practice that doctors are engaging in across all specialties quite frankly resulted in about $210 billion in additional healthcare costs in 2008 and today these costs 

are certainly much higher because of the Patient Protection and Affordable Care Act. I have realized my time is running pretty short 

here and I know I am going to have to yield back, but I want to 

thank the chairman for yielding time. Maybe I can get someone 

else to yield me a little bit more time so I can finish my full statement, but it will go in the record and this is hugely important. I 

am so grateful for the witnesses and I look forward to your testimony. And I yield back, Mr. Chair. Thank you for the time. 

Mr. PITTS. The Chair thanks the gentleman. The Chair recognizes the ranking member of the subcommittee, Mrs. Capps, for 5 

minutes. 

OPENING STATEMENT OF HON. LOIS CAPPS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mrs. CAPPS. Thank you, Mr. Chairman. Before we begin this 

hearing I would like to say that this is a bill we have heard before; 

a bill on which we have disagreed before. While the goal is clear, 

meaningful tort reforms that protect patients and medical professional and reduce healthcare costs it is also clear that differences 

in our approach remain. We certainly should be looking at ways to 

bring down the cost of medical malpractice insurance, but the bill 

before us today only limits the amount of money that patients who 

have been wrongfully harmed can collect to compensate them for 

their injuries. It does nothing to solve the root of that problem, reducing the incidents of malpractice. 

I believe we should be focused on improving patient care and reducing the astounding number of costly, preventable, medical errors that claim 98,000 lives every year. Reducing medical errors 

would not only save lives, it would save a lot of money. And as the 

6 

number of studies have shown, focusing on improving patient care 

and reducing error has led to dramatic drops in medical malpractice payment. These medical—these studies are instructive on 

how to reduce the actual not-hypothetical cost of malpractice. 

Another area where I think we should set the record straight is 

the notion that excessive or frivolous lawsuits are because of rising 

premiums. The problem is that the lawsuits affected by the bill are 

by definition not frivolous. Where large damages are awarded the 

jury has found that the patient has been severely harmed. And in 

fact, over the last 5 years malpractice insurance payments to patients have actually gone down all while premiums have continued 

to go up which raises the question of what is the real driving force 

for these expenses. There is also no evidence that capping the damages an injured person receives because of malpractice is the most 

effective way to solve this problem. It will not lower premiums. It 

will not even stabilize them. Instead, this proposal will penalize innocent victims of medical neglect—negligence. 

Furthermore, H.R. 5 goes far beyond protections between patients and doctors. In fact, what is concerning is the extent to 

which this bill would protect drug companies and HMOs from lawsuits in cases where they have clearly hurt people. This expands 

the issue far beyond what many feel is the proper scope of this type 

of policy. 

Lastly, we disagree about the extent of what the Federal Government’s role in tort reform should be. At our Governors’ hearing a 

few weeks ago, we repeatedly heard these Governors stress that 

the needs of their States were different from one another and that 

to meet the needs of their states they needed flexibility. I find it 

ironic that this majority who for so long has been champions of 

State government, State and local control are supporting a bill that 

would impose a Federal one-size-fits-all solution with no flexibility 

in an area that has been traditionally a matter of State law. I believe there can be State solutions to this problem and I am interested in seeing how the provisions of the Affordable Care Act can 

help solve them. The healthcare law authorizes $50 million over 5 

years in grants to States to explore new approaches to settling 

losses including health court and disclose and offer models. This 

commitment to State solutions is also echoed in the President’s 

budget which this year proposes $250 million in grants for States 

to rewrite their own malpractice laws in ways that seek to balance 

the interest of both doctors and patients. I look forward to seeing 

the innovative State solutions that these grants will spur. Despite 

the good intentions for this bill, H.R. 5 does not help patients. It 

does not help the medical profession move toward lowering 

healthcare costs in a really meaningful way. Instead, it just shifts 

the costs of malpractice from the party at fault to injured individuals, their families, and taxpayers through publicly funded programs such as Medicare, Medicaid, and disability benefits. And I 

yield back the balance of my time. 

Mr. PITTS. Chair thanks the gentlelady and now recognizes the 

chairman emeritus of the full committee, Mr. Barton, for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman, and I am going to yield 

some of that time to Dr. Burgess and also to Dr. Gingrey. 

7 

Thank you for holding this hearing. As we have seen in my home 

State of Texas, medical malpractice reform can work. In Texas they 

have had cost savings of over $879 million. They have also added 

21,640 positions since they did reform back in 2003. Of those 

21,640 new doctors, over 1,200 have come from the great State of 

New York. In 2003, New York and Texas had basically the same 

medical malpractice premiums. Since Texas implemented its reform package, Texas’s premiums have decreased by 28 percent 

while New York State’s—excuse me, have increased by over 60 percent. The result is obvious. Doctors are coming to Texas. They are 

leaving New York. This is going to be a good hearing, and we look 

forward to our testimony from our witnesses. And at this point in 

time I would like to yield 3 minutes to Dr. Burgess. 

OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BURGESS. And I thank the gentleman for yielding. Mr. Chairman, this is an important hearing. First want to welcome Dr. Lisa 

Hollier who is an OB–GYN like me from Texas, that is—and she 

is going to share with us some of the good news that has come from 

on the ground, in the State of Texas since 2003 when Texas enacted its own liability reform—truly a 21st century solution to a 

problem that has been with us for a long time. 

Now, the President in his State of the Union Address said that 

medical malpractice reform is needed to reign in frivolous lawsuits. 

Mr. President, I could not agree more. In fact, the very next morning I penned a letter in my own hand as you can see to the President saying ‘‘I want to work with you on this.’’ He asked for ideas 

from on both sides of the aisle. I sent the letter down to the White 

House. I will ask unanimous consent to insert this as part of the 

record and Mr. President, I am still waiting on a response and I 

was serious about this offer. As you can see from this hearing, 

many of us are serious about this today. 

I am so painfully aware that many doctors are forced to practice 

defensive medicine, or retire, or run for Congress in the face of constant threat of non-meritorious lawsuits and unsustainable medical 

liability insurance. I do not believe we need to study this anymore. 

In Texas, we know what works. Liability reform served as a catalyst to bring doctors to underserved regions of the State including 

those that had no access to a physician in the past. 

Texas is one of the largest States in the Union, has a diverse 

population, diverse economy and geography, yet our reforms have 

proven successfully tailored to adapt and produce across-the-State 

results. Eighty-two Texas counties have seen a net gain in emergency room doctors including 26 counties who had none. The Texas 

State Board of Medical Examiners in 2001 licensed 2,088 new doctors, the fewest in a decade. Today, they are challenged to keep up 

with the physicians who now want to practice in our State. In 

2008, over 3,600 new doctors—the highest number ever recorded. 

In my field of obstetrics, Texas saw a net loss of 14 obstetricians 

in the 2 years prior to reform. Since then the State has experience 

a net gain of 192 obstetricians and over 25 rural counties that 

never had one now do. 

8 

Texas has enjoyed a 62 percent greater growth in newly licensed 

physicians in the past 3 years compared to the 3 years preceding 

liability reform Texas has benefitted. I am happy to share this success that we are experiencing so that all States can reap the benefit. I have introduced H.R. 896 based on Texas reforms but there 

are other ideas from small to bold and we should be considering 

them. At this point I will yield the balance of the time to Dr. 

Gingrey. 

[The information follows:] 

9 


71612.246
10 


71612.247
11 

Mr. GINGREY. Yes, Mr. Chairman, I appreciated the vice chairman for yielding to me. I was beginning to like the sound of my 

voice when I got cut off a few minutes ago. 

I was talking about the Provider Shield Act. I want to get to the 

more important act, H.R.5, but as Mr. Waxman, the Committee 

Ranking Member knows himself there is a growing concern among 

the provider and business community that Obamacare will increase 

the threat of liability tremendously and drive many providers out 

of practice if they follow their own medical subspecialty guidelines 

over the treatment edicts of Secretary Sebelius. And that bill, then 

H.R. 816 the Provider Shield Act would protect medical providers 

from these edicts and it has gained some bipartisan support. 

But even if H.R. 816 becomes law, the crises that $200 billion in 

costs will inflict on our healthcare system remains and therefore I 

have introduces and we will talk about a bi-partisan bill legislation 

H.R. 5 the Health Act, along with Congressman David Scott and 

Chairman Lamar Smith of the Judiciary Committee to help bring 

meaningful medical liability reform to this country once and for all. 

If healthcare costs are truly a national concern then solutions to 

bring down these costs are desperately needed. And with that Mr. 

Chairman, I will yield back the expired time. 

Mr. PITTS. Chair thanks the gentleman. If there is no one else 

from the minority wishing to make an opening statement I will 

now welcome and introduce our distinguished panel of witnesses. 

I would like to thank you for appearing before the committee this 

morning. Your willingness to take time out of your busy schedules 

underscores just how important this issue is to all of you as it is 

to all of us. 

Your written testimony will be made a part of the record. We ask 

that you take 5 minutes each to summarize your testimony and at 

this point I will introduce the witnesses in which order I ask them 

to testify. 

The first witness is Dr. Lisa Hollier. Dr. Hollier practices obstetrics and gynecology in Houston, Texas and is a Professor of OB– 

GYN and Director of the Lyndon B. Johnson Residency Program at 

the University of Texas Medical School at Houston. She is also a 

fellow of the American College of Obstetricians and Gynecologists. 

The next witness is Ms. Joanne Doroshow. Ms. Doroshow is 

President and Executive Director, Center for Justice and Democracy, a public Interest organization in New York City that is involved in educating the public about issues relating to civil justice 

system. 

The next witness is Dr. Allen Kachalia. Dr. Kachalia is a practicing physician at Brigham and Women’s Hospital Harvard Medical School. He is the Medical Director for Quality and Safety at 

Brigham and Women’s Hospital. He also has a law degree and conducts research and teaches about legal matters in medicine including the Medical Professional Liability System. 

The next witness is Mr. Brian Wolfman. Mr. Wolfman has been 

a practicing lawyer for more than 25 years. He is a Visiting Professor of Law and Congress-Director, Institute for Public Representation at Georgetown Law School. He also spent almost 20 years 

with the Litigation Group of Public Citizen in Washington, DC. 

12 

And the final witness is Dr. Troy Tippett. Dr. Tippett is a practicing neurosurgeon with more than 35 years of experience. He is 

also past President of both the American Association of Neurological Surgeons and the Florida Medical Associations. Thank you 

for coming this morning. Dr. Hollier, you are recognized for 5 minutes. 

STATEMENTS OF LISA M. HOLLIER, MD, MPH, FELLOW, AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, 

PROFESSOR AND DIRECTOR, LYNDON B. JOHNSON RESIDENCY PROGRAM, UNIVERSITY OF TEXAS MEDICAL SCHOOL 

AT HOUSTON; JOANNE DOROSHOW, EXECUTIVE DIRECTOR 

THE CENTER FOR JUSTICE AND DEMOCRACY; ALLEN B. 

KACHALIA, MD, JD, MEDICAL DIRECTOR OF QUALITY AND 

SAFETY, BRIGHAM AND WOMEN’S HOSPITAL, HARVARD 

MEDICAL SCHOOL; BRIAN WOLFMAN, VISITING PROFESSOR, 

GEORGETOWN UNIVERSITY LAW CENTER, CO–DIRECTOR, INSTITUTE FOR PUBLIC REPRESENTATION; AND TROY M. 

TIPPETT, MD, PAST PRESIDENT, AMERICAN ASSOCIATION 

OF NEUROLOGICAL SURGEONS, PAST PRESIDENT, FLORIDA 

MEDICAL ASSOCIATION 

STATEMENT OF LISA M. HOLLIER 

Ms. HOLLIER. Thank you, Chairman Pitts. We applaud you and 

the subcommittee for holding this hearing. My name is Dr. Lisa 

Hollier and I am an obstetrician/gynecologist from Houston, Texas 

speaking on behalf of the American Congress of Obstetricians and 

Gynecologists (ACOG), an organization representing more than 

54,000 physicians and partners in women’s health dedicated to improving the healthcare of women. ACOG ultimately could not support passage of the Health Reform Bill in large part because it 

didn’t include meaningful liability reform, an issue we see as critical to reforming our healthcare system. 

We simply cannot build a reformed healthcare system on top of 

the broken medical liability system. Without meaningful reform, 

the doctors will continue to be driven out of their home States or 

out of their practices. When OB–GYNs discontinue the practice of 

obstetrics, curtail their surgical services or close their doors, women’s healthcare suffers. For these reasons, ACOG strongly supports 

H.R. 5, the Health Efficient Accessible Low-Cost Timely Healthcare 

Act introduced by ACOG fellow representative, Phil Gingrey. 

Additionally, we appreciate the support from the 17 Members of 

the committee who have cosponsored H.R. 5 including seven on the 

health subcommittee. Thank you Representatives John Shimkus, 

Mike Rogers, Sue Myrick, Marsha Blackburn, Bob Latta, Cathy 

McMorris Rodgers, and Brett Guthrie. 

Every day OB–GYNs are faced with exposure to law suits. In 

fact, 90 percent of ACOG fellows report that they have been sued 

at least once and OB–GYNs are sued an average of 2.7 times during their careers. Nearly two-thirds of OB–GYNs have changed 

their practice during the last 3 years because of the high risk of 

liability claims. These changes include increasing the number of cesarean deliveries, reducing or not offering trial of labor after cesarean, decreasing the number of high-risk patients they accept, and 

13 

even stopping the practice of obstetrics altogether due to professional liability concerns. The average age at which physicians cease 

practicing obstetrics is now 48, an age once considered the midpoint of an OB–GYN’s career. 

Our current tort system fails providers and fails patients. It is 

costly, time consuming, inefficient, and unjust with widely variable 

and unpredictable monetary judgment. The system is wholly incompatible with the Institute of Medicine’s vision for the future 

healthcare system as safe, effective, patient centered, timely, efficient, and equitable. This is a national problem which demands a 

national solution. 

That national solution including caps on noneconomic damages 

and other reforms like those found in Texas and California would 

stabilize the medical liability insurance market, reduce healthcare 

cost, eliminate physician flight from high risk States and protect a 

patient’s access to the healthcare they need. This is why we fully 

support H.R. 5, the Health Act. 

H.R. 5 promotes speedy resolution of claims, fairly allocates responsibility, compensates patient injury, maximizes patient recovery, puts reasonable limits on the awarded punitive damages, ensures payment of medical expenses, allows State flexibility, and 

saves the Federal Government money. We know these reforms 

work. The landscape in my home State of Texas changed dramatically after implementing medical liability reform in 2003. 

Statewide, 21,640 doctors have been newly licensed in Texas 

since its passage. Texas physicians have also seen their liability insurance premiums cut on average 28.3 percent and claims and lawsuits in most Texas counties have been cut in half. Additionally the 

State has gained 269 obstetricians after a net loss of 14 obstetricians from 2001 to 2003. Twenty-two rural counties added at least 

one obstetrician and 10 counties added their first obstetrician. 

Blanco County which had no obstetrician’s pre-reform added eight. 

In all, 57 Texas counties have seen a net gain in obstetricians including 28 medically underserved counties and 20 counties designated as partially medically underserved. 

These figures show that a primary result of these reforms is increased access to care for women across Texas. H.R. 5 holds the 

promise that increased access to care for even more women nationwide. We urge this subcommittee and the U.S. House to give H.R. 

5 speedy approval so that we can better serve our patients. Thank 

you, Chairman Pitts for your commitment and your leadership on 

this issue. 

[The prepared statement of Ms. Hollier follows:] 

14 


71612.003
15 


71612.004
16 


71612.005
17 


71612.006
18 


71612.007
19 


71612.008
20 


71612.009
21 


71612.010
22 


71612.011
23 


71612.012
24 


71612.013
25 


71612.014
26 

Mr. PITTS. Chair thanks the gentlelady and recognizes Ms. 

Doroshow for 5 minutes. 

STATEMENT OF JOANNE DOROSHOW 

Ms. DOROSHOW. Thank you, Chairman Pitts and members of the 

committee. The Center for Justice and Democracy of which I am 

Executive Director is a national public interest organization dedicated to educating the public about the importance of the civil justice system. My testimony will focus primarily on medical malpractice issues since these issues clearly are the driver for H.R. 5. 

I would like to first note that thanks to 30 years of insurance 

and medical industry lobbying the medical profession now has 

more legal protections for their negligence than any other profession in the country. As a result the number of injured patients 

bringing medical malpractice claims has reached historic lows. At 

the same time, premiums have been stable or dropping since 2006 

and have further to drop until the soft market ends and this is no 

matter whether a State has passed tort reform or not. 

Despite this, a myth exists of medical malpractice litigation is a 

huge driver of our healthcare costs. This is even though the Congressional Budget Office found that H.R. 5 would result in extremely small healthcare savings, about 0.4 percent. Of this, a trivial amount, 0.3 percent or less is due to slightly less utilization of 

healthcare services that is defensive medicine and 0.2 percent or 

less is due to reduced insurance premiums for doctors. As small as 

these figures are even they are inflated because CBO ignored factors that would likely increase the deficit. 

In fact, when I met with CBO to discuss these admissions, they 

did not deny that liability restrictions lead to more injuries and 

deaths and could create new burdens on States and Federal deficits 

since the cost of injuries are not eliminated by enacting tort reform 

but merely shifted on to some—on someone else including the government. In fact, one of the three studies CBO does mention now 

that there would be a 0.2 percent increase in the Nation’s overall 

death rate by enactment of H.R. 5. How could this possibly be an 

acceptable trade off? 

And it is not like we don’t have history as a guide here. In fact, 

history repeatedly shows for example that capping damages will 

not lower insurance rates because what drives these rate hikes has 

nothing to do with the State’s tort law. It is driven by the insurance underwriting cycle and investment income and remedies that 

do not specifically address this cycle will fail to stop these wild 

price gyrations in the future. In fact, when I returned to New York 

we will be preparing a major new campaign to expose the insurance industry’s major role in the pricing of medical malpractice insurance and to hold them accountable for creating cyclical insurance crises for doctors in this country. And we hope everyone on 

this panel joins us in this. 

As for H.R. 5, this bill would establish a permanent across-theboard $250,000 cap on compensation for noneconomic damages in 

medical malpractice cases. Noneconomic damages compensate for 

injuries like permanent disability, disfigurement, blindness, loss of 

a limb, a damaged reproductive system, paralysis, or physical pain 

and suffering. Such caps are incredibly cruel and unfair. 

27 

H.R. 5 would also limit State statute limitations laws, an idea 

that lacks complete logic from a deficit reduction standpoint since 

its only impact would be to cut off meritorious claims. It would impose national wage controls on an injured patient’s attorney preventing the patient from getting decent legal assistance. It would 

limit punitive damages even though only 1 percent of medical malpractice plaintiffs even receive punitive damages. Where is the crisis demanding that Congress interfere with State law in this area? 

It would eliminate joint several liabilities which CBO itself says 

could cause a deficit increase not decrease. Dr. Lora Ellenson, a pathologist at New York Presbyterian Hospital whose now 13-yearold son Thomas was brain damaged at birth due to negligence last 

month told the New York Daily News ‘‘My son cannot walk or talk. 

He is not able to carry out activities of daily living: eating, 

dressings, toileting, bathing without constant assistance from an 

adult. As a physician I have to come face to face with the knowledge that mistakes are made. Like most physicians I live with the 

reality that we might one day make an error and be sued. When 

that day comes I will be grief stricken. Not because of the process, 

although I am sure that won’t be pleasant, but due the fact that 

I may have caused someone irreparable damage. My only hope is 

that the damaged person can get what they need to live in the best 

way they are able. As a physician I want to know that there will 

be compensation to rebuild a life that has been diminished, yet as 

a mother I also know that no typical physician nor the system 

within which they operate can possibly understand the true depths 

of these mistakes.’’ I wish Dr. Ellenson’s perspective were more 

represented by the physicians on this panel today. A study done in 

her hospital and other studies around the country have found that 

implementing comprehensive patient safety programs not only decreased severe adverse outcomes, but can also have an immediate 

impact on claims and compensation payments. That should be our 

focus, not stripping away the rights of children like Thomas 

Ellenson. Thank you. 

[The prepared statement of Ms. Doroshow follows:] 

28 


71612.015
29 


71612.016
30 


71612.017
31 


71612.018
32 


71612.019
33 


71612.020
34 


71612.021
35 


71612.022
36 


71612.023
37 


71612.024
38 


71612.025
39 


71612.026
40 


71612.027
41 


71612.028
42 


71612.029
43 


71612.030
44 


71612.031
45 


71612.032
46 


71612.033
47 


71612.034
48 


71612.035
49 


71612.036
50 


71612.037
51 


71612.038
52 


71612.039
53 


71612.040
54 


71612.041
55 


71612.042
56 


71612.043
57 


71612.044
58 


71612.045
59 


71612.046
60 


71612.047
61 


71612.048
62 


71612.049
63 


71612.050
64 


71612.051
65 


71612.052
66 


71612.053
67 


71612.054
68 


71612.055
69 


71612.056
70 


71612.057
71 

Mr. PITTS. Chair thanks the gentlelady and recognizes Dr. 

Kachalia for 5 minutes for your opening statement. 

STATEMENT OF ALLEN B. KACHALIA 

Mr. KACHALIA. Mr. Chairman and members of the committee, I 

thank you for the opportunity to testify today. It is a privilege to 

be here. I am here today because I was asked to speak with regard 

to the evidence related to the need that we have for malpractice reform and the measures that are currently under consideration. It 

is exciting to see that Congress is considering malpractice reform 

especially given the need we have today to improve our healthcare 

system comprehensively. 

I will quickly cover three main points: 1, what do we know about 

malpractice system performance; 2, what reform needs do we have; 

and 3, what does the evidence tell us with regard to the traditional 

tort reform measures that have been enacted in the States. I will 

base my testimony on both my clinical and research experience 

that you mentioned earlier. 

So first I would like to start by discussing why we need malpractice reform. We have a malpractice system that theoretically 

exists to 1, duly compensate injured patients, and to 2, reduce substandard care. However, there is general agreement among many 

experts that the system is not serving these functions well. If we 

turned to frequently cited evidence with regard to performance of 

the malpractice system, we can learn that patients claim compensation in only about 2 percent of negligent injuries that occur. 

And even less frequently do they receive payment. 

However, the problem is not just from the patient side. There is 

also a problem from the physician perspective. If we look at claims 

that have been filed there is concern that too low number of the 

claims that are filed actually contain negligence—approximately 

one in six. More recently generated evidence, however, indicates 

that about 60 percent of filed claims may actually have an error 

in them, but still the malpractice system does not seem to adjudicate these claims properly with about a quarter of them being improperly adjudicated. Now, this type of inaccuracy can actually undermine both patient and physician confidence in our system. 

Compounding these problems in data that demonstrates that the 

majority of our premium dollars seem to go to fund overhead costs 

rather than compensating patients. All of this occurs in the context 

of which there are very high insurance premiums for many physicians and of course we cannot ignore the emotional costs that can 

be associated with a law suit whether or not the suit has merit. 

There are also unwanted, indirect offenses of the malpractice system. This includes of course defensive medicine and the fact of the 

possibility of litigation that is always present can undermine the 

trust that we need in the patient/physician relationship. 

So what these findings show is what they show us what we need 

from reform. We need improvements that will actually fix the liability related shortcomings for both patients and physicians and 

a system that will perform these functions much more efficiently. 

But our reform targets should probably not stop there. Reform 

should also address how well the malpractice system improves the 

72 

quality of care that we provide. After all, this is one of the system’s 

main goals. 

So therefore, as Congress considers any reform it becomes important for Congress to determine what their primary goal is. Will legislation start in one area alone or will it try to tackle multiple 

problems at once and what is the interaction between making those 

choices? However, regardless of the approach that is taken, it remains important to contemplate any new reforms with the current 

evidence as to what we know in mind. 

So if I can turn to the evidence here there is a number of States 

have enacted tort reform over the years there has been a growing 

base on the evidence that we have with regard to the effect of these 

reforms. Last year we completed a review of the evidence on the 

effect of many traditional tort reforms and briefly here is what we 

learned. 

For caps on damages, the evidence seems to indicate that caps 

can lower the average size of claims payments which shouldn’t be 

surprising because that is what they are designed to do and this 

actually appears to translate into lower premiums for physicians. 

There is good evidence to also suggest that caps made less in defensive practices, however, the effect of caps on the overall quality of 

care remains unknown. 

For statute of limitations there is reasonable evidence to show 

that they may lower premiums but it is unclear what the statute 

of limitations do with regard to claims frequency and they also do 

not appear to change the average award size. The evidence on defensive practices and other care related metrics is limited in this 

regard. 

For attorney fee limits, overall the evidence shows that fee limits 

do not seem to translate to lower claims frequency, cost, or insurance premiums and there is little evidence as to what happens 

with regard to care related metrics. So in summary as we continue 

to focus on how lower costs and improved quality in healthcare 

today, our medical malpractice system is a good target. Based on 

data on system performance as we consider how to reform the system it becomes important to evaluate reforms not just on liability 

consequences for patients and providers, but also to consider the effects on overall cost and quality of care. 

As a practical matter, Congress may offer incremental reform, 

but it is important to keep in mind that the ultimate goal of reform 

should be reform that addresses all the ails of our system and that 

veil consideration of more comprehensive reforms has also been put 

out there by Members of Congress. I would like to emphasize that 

regardless of the type of reform that is passed, it is critical to 

measure its impact and to have plans that call for proper and timely adjustments based on what the data tells us. Just as we continue to seek better data and evidence in medical care, we should 

ask the same of our liability system. Thank you. 

[The prepared statement of Mr. Kachalia follows:] 

73 


71612.058
74 


71612.059
75 


71612.060
76 


71612.061
77 


71612.062
78 


71612.063
79 


71612.064
80 


71612.065
81 


71612.066
82 


71612.067
83 


71612.068
84 


71612.069
85 


71612.070
86 


71612.071
87 


71612.072
88 


71612.073
89 


71612.074
90 


71612.075
91 


71612.076
92 


71612.077
93 


71612.078
94 


71612.079
95 


71612.080
96 


71612.081
97 


71612.082
98 


71612.083
99 


71612.084
100 


71612.085
101 


71612.086
102 


71612.087
103 


71612.088
104 


71612.089
105 


71612.090
106 


71612.091
107 


71612.092
108 


71612.093
109 


71612.094
110 


71612.095
111 


71612.096
112 


71612.097
113 


71612.098
114 


71612.099
115 


71612.100
116 


71612.101
117 


71612.102
118 


71612.103
119 


71612.104
120 


71612.105
121 


71612.106
122 


71612.107
123 


71612.108
124 


71612.109
125 


71612.110
126 


71612.111
127 


71612.112
128 


71612.113
129 


71612.114
130 


71612.115
131 


71612.116
132 


71612.117
133 


71612.118
134 


71612.119
135 


71612.120
136 


71612.121
137 


71612.122
138 


71612.123
139 


71612.124
140 


71612.125
141 


71612.126
142 


71612.127
143 


71612.128
144 


71612.129
145 


71612.130
146 


71612.131
147 


71612.132
148 


71612.133
149 


71612.134
150 


71612.135
151 


71612.136
152 


71612.137
153 


71612.138
154 


71612.139
155 

Mr. PITTS. Chair thanks the gentleman and recognizes Mr. 

Wolfman for 5 minutes. 

STATEMENT OF BRIAN WOLFMAN 

Mr. WOLFMAN. Chairman Pitts and members of the committee, 

thank you for the opportunity to appear today in opposition to H.R. 

5. I want to focus on what H.R. 5 calls medical product claims: 

suits brought by patients claiming that their injuries were caused 

by a defective or mislabeled drug or medical device. I will address 

three particularly harmful attributes of H.R. 5: its limits on noneconomic damages, attorney fees, and punitive damages. 

The act would limit noneconomic damages to $250,000. What 

does that mean in human terms? My written testimony answers 

this question in detail, but today I will focus on one example. In 

Wyeth v. Levine, Diana Levine, a musician lost an arm because of 

the negligence of a huge drug company Wyeth. She was awarded 

$5 million in noneconomic damages. Ms. Levine experiences phantom pain in her missing arm every day, sometimes excruciating. 

She had been a well-known Vermont musician who loved to play 

and create music, but her life was fundamentally altered forever. 

She is beset by depression, the mental anguish that frays relationships, and undermines desire from living a life that will never be 

fully restored. The idea that $250,000 can fully compensate for 

these life altering injuries is, to be blunt, absurd, and that H.R. 5 

fixes noneconomic damages at $250,000 forever regardless of the 

impact of inflation underscores the conclusion that the cap is not 

a genuine attempt at gauging the impact on real people’s lives of 

noneconomic injuries. 

Wyeth defended this case with great tenacity. Ms. Levine’s lawyers were required to hire four experts, take wide ranging discovery, conduct a trial, defend pre and post trial motions, and defend lengthy multi-year appeals. The financial impact of Ms. Levine’s injuries became so severe that she went into massive debt 

during the case and had to take out a large loan against her judgment. In preparing for this testimony, I asked Ms. Levine’s smalltown Vermont lawyer if he would have taken on Ms. Levine’s case 

had the law limited economic damages to $250,000. His answer: 

one word, no. 

Studies show that a $250,000 cap on noneconomic damages 

disproportionally harms women, members of minority groups, and 

older people all of whom rely heavily on noneconomic damages to 

be made whole. Society should compensate harm and discourage 

negligent conduct just as much when it is visited upon a relatively 

poor person as when it is visited upon someone who is economically 

advantaged. 

The act would also limit contingent attorney fees to just 15 percent on recoveries over $600,000. Those figures appear to be 

plucked out of the air with no explanation of how they would correct a supposed distortion in the market for contingent fee legal 

services. For someone who does not understand the economic reality of risk taking in a free enterprise economy, this provision may 

appear pro-consumer. After all, limiting the lawyer’s recovery helps 

the client, right? Wrong. 

156 

The free market does not cap contingent fees at 15 percent because lawyers are not willing to offer that term in a free market 

to their clients. The risk and expense of complex medical products 

litigation is too great. Ms. Levine audibly obtained a significant 

verdict but her lawyer did not know that result going in. He knew 

that Wyeth was likely to put on a formidable defense and take the 

case all the way to the Supreme Court. Viewed in hindsight, of 

course, Ms. Levine would have done better if a large chunk of her 

lawyer’s fee had been paid to her. But if the Congress of the United 

States had demanded that a small town Vermont lawyer limit his 

fees to 15 percent, Ms. Levine never would have been able to find 

a competent lawyer to take her case in the first place. 

H.R.5 also bars punitive damages in cases where the product was 

approved by the FDA. Given the reality of FDA regulation, that 

makes no sense. Prescription drugs are FDA approved after relatively small clinical trials that do not always unearth all of the 

product’s hazards and side effects. After approval the product is 

used by the public at large, a sort of mammoth clinical experiment 

and the manufacturer learns more about the product. In fact, fully 

half of all drug labeling updates to warn of serious adverse drug 

reactions occurs seven or more years after the drug is approved. 

Many drug liability suits concern information that not before the 

FDA at the time of the drug’s approval. And so it is irrational to 

immunize the manufacturer based on that approval particularly 

where the manufacturer was grossly negligent in assuring that its 

product label remained up to date. But H.R. 5 would do just that. 

For this reason as well, H.R. 5 would undermine consumer 

health and safety and the committee should reject it. Thank you. 

[The prepared statement of Mr. Wolfman follows:] 

157 


71612.140
158 


71612.141
159 


71612.142
160 


71612.143
161 


71612.144
162 


71612.145
163 


71612.146
164 


71612.147
165 


71612.148
166 


71612.149
167 


71612.150
168 


71612.151
169 


71612.152
170 


71612.153
171 


71612.154
172 


71612.155
173 


71612.156
174 


71612.157
175 


71612.158
176 


71612.159
177 


71612.160
178 

Mr. PITTS. The Chair thanks the gentleman and recognizes Dr. 

Tippett for 5 minutes. 

STATEMENT OF TROY M. TIPPETT 

Mr. TIPPETT. Thank you, Chairman Pitts, and—thank you, 

Chairman Pitts and Ranking Member Pallone, for holding this important hearing to consider this essential business of fixing our 

country’s broken medical liability system. I am grateful for the opportunity to appear before this distinguished committee on behalf 

of the Health Coalition on Liability and Access or HCLA to strongly endorse and support passage of H.R. 5, the Health Act of 2011 

as it was originally introduced in January. 

HCLA represents a broad, national coalition of physicians, hospitals, employers, healthcare liability insurers and those who have 

joined together to seek some common sense solutions that will help 

reduce healthcare costs for all Americans and insure patient access 

to quality medical care by enacting medical liability reform at the 

Federal level. We believe all Americans pay the price when the 

profits of personal injury lawyers take precedence over patient 

care. 

Today our current medical liability system increases healthcare 

costs to unsustainably high medical insurance premiums and by 

encouraging the practice of defensive medicine. It reduces access to 

care as we see more and more physicians, particularly younger 

physicians avoid high risk specialties and procedures that are the 

frequent target of lawsuit abuse. Also, it has become a significant 

factor in the erosion of the all important doctor/patient relationship. HCLA believes H.R. 5 is the kind of comprehensive solution 

that would bring fairness and common sense back to our medical 

liability system. Any reform legislation should include the following 

points. 

There should be no limit on awards for economic damages. It 

should have a reasonable statute of limitations on the medical malpractice claims. It should have a reasonable limit of $250,000 on 

awards for noneconomic damages, and it should have a replacement of joint and several liability with a fair share rule. And there 

should be limits on the contingency fees that lawyers can charge 

so that more that that money goes back to the patient, and it 

should have a collateral source rule reform. 

Last month, the CBO published two reports that clearly show enactment of this legislation and similar legislation would help lower 

healthcare costs by lowering medical health insurance liability premiums by reducing the practice of defensive medicine and by lowering private health insurance premiums. The CBO estimated that 

passage of legislation would save the government $62 billion. Now, 

I don’t know where you come from, but in my part of the woods 

that is a significant amount of money. $62 billion is worth saving. 

A number of States have made significant gains in reducing medical lawsuit in views, but as personal injury lawyers work State by 

State to overturn liability reforms and expand areas open to litigation it is clear that medical liability remains a national problem 

that requires a comprehensive Federal solution. 

We look forward to working with the committee and others in 

Congress to develop the kind of Federal remedy that will bring conVerDate Aug 31 2005 11:33 Apr 10, 2013 Jkt 037690 PO 00000 Frm 00182 Fmt 6633 Sfmt 6633 F:\112-03~1\112-33~1 WAYNE
179 

sistency and common sense back to the system. There can be no 

real healthcare reform without meaningful medical liability reform. 

We ask you to please pass H.R. 5. 

[The prepared statement of Mr. Tippett follows:] 

180 


71612.161
181 


71612.162
182 


71612.163
183 


71612.164
184 


71612.165
185 


71612.166
186 


71612.167
187 


71612.168
188 


71612.169
189 


71612.170
190 


71612.171
191 


71612.172
192 


71612.173
193 


71612.174
194 


71612.175
195 


71612.176
196 


71612.177
197 


71612.178
198 


71612.179
199 


71612.180
200 


71612.181
201 


71612.182
202 


71612.183
203 


71612.184
204 


71612.185
205 


71612.186
206 


71612.187
207 


71612.188
208 


71612.189
209 


71612.190
210 


71612.191
211 


71612.192
212 


71612.193
213 


71612.194
214 


71612.195
215 


71612.196
216 


71612.197
217 


71612.198
218 

Mr. PITTS. Chair thanks the gentleman. I would like to thank the 

panel for their opening statements and I will now begin the questioning and recognize myself for 5 minutes for that purpose. 

Dr. Hollier, you have been practicing in Texas for a number of 

years. Some of that time was before the State enacted medical liability reform. Can you tell us how things have changed for you 

since medical liability reform in terms of your ability to provide 

healthcare to your patients, please? 

Ms. HOLLIER. Thank you, Mr. Chairman. The reforms in Texas 

have truly changed the climate in which we practice medicine. I 

work in a medical school and I counsel medical students on a routine basis. Before the passage of medical liability reforms, many of 

my students asked questions and were very concerned about entering a specialty such as obstetrics because of professional liability 

concerns. In the era after our reforms had passed, those medical 

students have regained their interest in our specialty and are excited about the practice of obstetrics. 

We have seen literally hundreds of thousands of extra patient 

visits because we have increased access to doctors across the State 

of Texas because those doctors are more able to provide the care 

that our patients need. 

Mr. PITTS. Thank you. Dr. Tippett, in order to help us understand why a doctor might practice defensive medicine, can you give 

us some sense of what it means professionally to be named a defendant in a malpractice suit? Even in the case doesn’t result in a 

judgment against you, most neurosurgeons have been sued. Would 

you please elaborate? 

Mr. TIPPETT. Yes, thank you very much. Well, in Florida you can 

count on the one out of one permanent resident year just about 

these days unfortunately, but just—my—when I first started practicing in Pensacola, Florida, in 1976 I will never forget it. Within 

a year of when I started practice, one day I opened the door and 

there is a Deputy Sheriff. He is handing me this subpoena and I 

am, you know, I am kind of naı ́ve. I didn’t know what—I said what 

in the world is this and I opened it up and it said you are being 

sued. And I—you would have thought I had stuck my hand in electrical current with a hot—with cold water on my face. I mean it 

is that shocking. 

And the devastation doesn’t stop for about 4 years after that, I 

can tell you. It doesn’t go away. First of all I say, well, I don’t even 

know who this patient is. Well, it turns out it was a patient that 

I had walked in the room that they were operating on when I was 

a resident in Memphis, Tennessee, several years before. I didn’t 

have any idea who the patient was. Well, they tried to get him to 

drop me from the trial. Of course they didn’t. I ended up—I had 

just started my practice in Pensacola. I had to take time out of my 

practice. I would go to Memphis, Tennessee, for the trial. I sat in 

the courtroom for a week not—my name is not mentioned one time. 

At the end of the presentation of the plaintiff’s case the judge—the 

first time my attorney says anything is will you dismiss my client 

and the judge says yes. And so you know I am kind of stunned. I 

don’t know what is going on. I am walking out of the room and the 

plaintiff’s attorney stops me and says—shakes my hand and says, 

you know, no offense. And I am saying—here, you know I have just 

219 

been stabbed in the back and no big deal. And that is just one. I 

could go on with other. 

Mr. PITTS. Thank you. Dr. Kachalia, you and your colleague 

Michelle Mello have done an exhaustive review of this issue, possibly the most exhaustive review to date. From what I can tell, part 

of your message is that the data regarding some aspects of medical 

liability reform are not robust at this time. However, there does 

seem to be mature data about caps on noneconomic damages. I 

found it interesting in your research that caps do not seem to reduce the number of claims, but study—studies of the effects on 

caps on claim payouts have found a significant effect—typically on 

the order of 20 to 30 percent reduction in the average award size. 

If the number of claims remains stable, it would seem that patients 

are still able to bring cases, but the number of unpredictably high 

awards is reduced. That seems like exactly what we would want 

medical liability reform to do. In your opinion is that a fair thing 

to say? Would you elaborate? 

Mr. KACHALIA. So, I think you are right with regard to what we 

would want liability reform to do which is to bring—if awards are 

thought to be excessive to make them more reasonable. And with 

regard to caps they do seem to—as you pointed out, they do seem 

to lower the average payment and the premiums to go with it. And 

they—from what we can see from the evidence they don’t seem to 

have an effect on the total number of claims that occur. So if caps 

were working without harming patient access to compensation, 

that is exactly how we would want them to work, but most of these 

studies weren’t necessarily—they don’t necessarily tell us as you 

pointed out—there is very little data with regard to what happens 

to patient access to compensation in overall quality of care. So 

those still remain unknown questions. But you are right, at the end 

of the day to some extent caps can help lower the premiums which 

is what they are meaning to do. 

Mr. PITTS. My time is expired. Chair recognizes the ranking 

member for 5 minutes for questions. 

Mr. PALLONE. Thank you, Mr. Chairman. I do appreciate your 

having this hearing today because I can’t support and never have 

supported H.R. 5, but I do understand that medical malpractice 

and liability is a real problem for doctors in my home State in the 

country. But I also think we can’t forget that medical malpractice 

reform also affects patients and any truer form has to take a balanced approach and include protections for the legal rights of patients, because many people are serious injured through medical 

malpractice. 

Now I want to focus on three things which I have been articulating for years about H.R. 5. It has been around—I don’t know 

how many times we have taken this up, you know, since—when the 

Republicans were in the majority. I have three problems with it. 

First of all it extends way beyond medical malpractice. You know 

it has new protection and nursing home, pharmaceuticals, device, 

insurance companies and others and I really feel very strongly that 

if we are really going to focus on this issue it just should be medical malpractice. It shouldn’t be all these other types of tort reform. 

The second thing is that the 250,000 cap is just unworkable and 

unrealistic. I mean it has been around for 10, 20 years and you 

220 

know, with inflation and everything you talk about $250,000 cap 

I just think is unrealistic. And the last thing is I don’t believe that 

just having caps is going to truly control premiums. I think the 

only—I mean it may be a factor, but a more important factor is actually having some kind of controls on the premiums themselves. 

You know some kind of you know actual way of saying, you know, 

premiums can’t go above a certain amount, whatever. So those are 

my questions. I want to ask questions and I am going to try to get 

all three in in the 3 minutes that I have left. Let me start with 

Ms. Doroshow. 

First of all, this $250,000 cap, it seems to me it is very unrealistic and secondly the idea of just tort reform being an answer to 

reducing or controlling premiums for doctors—I mean isn’t it true 

that in California example—I know Mr. Waxman has often used 

this as an example that you know when they just did the tort reform premiums kept going up. And it wasn’t until they actually instituted something I guess with one of their propositions that actually said—that addressed prices. And so if you would ask me that 

a 250 cap and the need for price controls or however you want to 

call it and not just talking about the caps? 

Ms. DOROSHOW. Well, look at California because that was the 

State that first enacted a $250,000 cap in 1975 without an inflation 

adjustment. And I think if you were to adjust to today this would 

be well over a million dollars in terms of a limit. It is incredibly 

low and cruel amount of money that as Brian mentioned has a disproportionate impact on seniors, children, low wage earners, 

women who don’t work outside the home. 

In terms of the insurance issue, after the cap passed rates went 

up about 450 percent until 1988 when Prop 103 passed. This is the 

strongest insurance regulatory law in the country and since then 

rates have stayed below what the national average is. And in the 

last hard market between 2001—2003 there were—or 2005 there 

were three attempts by insurers in California to raise rates. Because of Prop 103 there is a hearing requirement. The consumer 

groups came in, challenged the rate hikes and all three of them 

were reduced saving doctors about $66 million in California. Nothing will work unless you institute insurance reform. 

Mr. PALLONE. All right, let me just—and I appreciate this answer to the questions, but Mr. Wolfman, to my third point which 

is this bill you know not just dealing with all these other tort reforms with farm devices, all that. I mean is that necessary? Isn’t 

the problem primarily with doctors? Why are we throwing all the— 

the kitchen sink in here? 

Mr. WOLFMAN. Representative Pallone, as I said the—this bill 

seems—I am not here to speak about malpractice, but this seems 

particularly ill fitted to claims against device and drug manufacturers that bring out enormous or war chests to litigate cases. And the 

notion that you in difficult cases where you need the best lawyers, 

the notion that you can go forward when there is extreme negligence with no opportunity for punitive damages. A $250,000 cap 

and these draconian nonmarket limitations on attorney’s fees is 

just fantastic. It is not going to happen. And—— 

Mr. PALLONE. Well, let me say this, Mr. Chairman, you know I 

just want you to know that if you and the Republicans were willing 

221 

to work with us on these three issues, you know unrealistic cap, 

just narrowing this to doctors or medical malpractice, and third you 

know including actual going after the rates and actually controlling 

rates then I think we could come to a workable solution. But the 

way H.R. 5 is now, it is going to—same thing over and over again. 

It will never go anywhere and it is just a waste of time. 

Mr. PITTS. Gentleman’s time is expired. Chair recognizes the vice 

chairman of the committee, Dr. Burgess, for 5 minutes for questions. 

Mr. BURGESS. I thank the chairman. You know I am actually 

tempted to ask the gentleman from New Jersey if he would look 

at 896 since he just made that gracious offer. On the other hand, 

Texas receives so many of your recently educated physicians from 

New Jersey that I am worried about disrupting our physician 

workforce pipeline because, as you know, we did pass a year ago 

or sign into law a year ago a bill—you may have heard of it—called 

the Patient Protection and Affordable Care Act, which is going to 

ensure according to congressional an additional 32 million people. 

And although I have my doubts about that figure, they are all 

going to need doctors. In Texas we may be well on the way to satisfying that demand because we have done the right thing with liability reform on the ground in Texas. 

I am so intrigued by the concept of what has been talked about 

on limiting attorney’s fees. You know, maybe doctors have gone 

about it the wrong way. Maybe we should have gone to the billable 

hour several years ago and not let Medicare dictate our fees as has 

happened in this country for years. But we do live under a federally imposed fee schedule and maybe if we could apply that to our 

legal brethren maybe some of these problems would go away as 

well so I am going to be on the phone to Dr. Berwick shortly after 

this hearing ends and see if we cannot extend the benefits of the 

sustainable growth rate formula to the Nation’s attorneys. 

Well, we did pass medical liability reform in 2003. Dr. Hollier, 

do recall did anything similar to the proposition in California pass 

that limited—was a price control on medical liability, the cost of 

the insurance itself, or were simply the reforms that we built into 

the system? Of course the legislature passed the law in June of 

2003. The State passed—the people of the State of Texas passed a 

constitutional amendment in September of 2003 that allowed the 

law to circumvent the court’s process and become immediately implemented. That seemed to me to be the big break point, not putting a cap on what malpractice insurance can charge. Can you address that? 

Ms. HOLLIER. Yes, sir, there were no additional measures such 

as those implemented in California. Liability premiums for physicians began to decrease relatively soon after the September passage of the amendment. And physicians had seen their liability 

premiums decrease by about 28 percent keeping many of these doctors in their practice keeping patients with the ability to access the 

specialty care that they need close to home. 

Mr. BURGESS. Yes, of course you work in a medical school and 

it is not just a medical school. It is my medical school, so I am 

grateful for your service there. But give us an idea of what that 

222 

28 percent means to the practicing OB–GYN in the greater Houston metropolitan area. 

Ms. HOLLIER. For many physicians prior to liability reform, obstetrician/gynecologists were paying premiums in excess of 

$100,000, some as high as $150,000. So 28 percent reductions are 

very important. And what it means for our doctors is that we can 

continue to stay in practice and provide care for our patients. 

Mr. BURGESS. And the story about counties in Texas having ER 

doctors and OB–GYNs that had never had one before is that just 

some fantasy made up by doctors or is that an actual fact? 

Ms. HOLLIER. That is an actual fact, Representative Burgess. 

Mr. BURGESS. And you know we talk about Texas, but let me 

talk about New York for a moment because I happened to be in 

New York a couple of weeks ago and the New York Times had this 

wonderful ad. When these doctors say we need liability reform 

there are 350,000 reasons to trust them and there you see what I 

like to call mature physicians standing there holding infants in 

their arms. And I asked—this was given to me by the head of the 

Greater New York Hospital Association, and I asked him what the 

liability premium was in the city of New York for an OB–GYN and 

he said in excess of $200,000. And clearly that is a barrier for the 

young physician getting out of their medical school and their residency experience. And they probably owe—well, Dr. Hollier or Dr. 

Kachalia, tell us what is a young doctor likely to owe today getting 

out of a 4-year OB–GYN residency? $150,000 in student loans, 

$200,000? 

Ms. HOLLIER. I think that is a reasonable estimate, sir. 

Mr. BURGESS. And on top of that before they can deliver their 

first baby a $200,000 liability payment because no one can afford 

to practice—you couldn’t dare run the risk of practicing without liability insurance. So how in the world are we asking our cadre of 

young doctors to begin practice in—with this environment in the 

city of New York? No wonder they look to the allegiant fields of 

Houston, Texas, and Fort Worth, Texas. They may not be green 

fields, because it is pretty hot in the summertime, but they are certainly greener fields than in New York. Thank you, Mr. Chairman. 

I will yield back the balance of my time. 

Mr. PITTS. Chair thanks the gentleman and now recognizes the 

gentleman from Texas, Mr. Gonzalez for questions. 

Mr. GONZALEZ. Thank you very much, Mr. Chairman. Dr. 

Hollier, do we have a medical malpractice—not an emergency, but 

let—not a crisis, but do we have medical malpractice problems in 

the State of Texas? 

Ms. HOLLIER. Sorry, sir. I think the climate in Texas has 

changed dramatically post reform. And I think our patients have 

had significant benefits. 

Mr. GONZALEZ. Well, let me ask you. I will put it this way. Do 

we have occurrences of medical malpractice in Texas? 

Ms. HOLLIER. Yes, sir. 

Mr. GONZALEZ. But those doctors make mistakes? 

Ms. HOLLIER. Yes, sir. 

Mr. GONZALEZ. And sometimes they are pretty serious mistakes? 

Ms. HOLLIER. Yes, sir. 

223 

Mr. GONZALEZ. All right, you know a lot of doctors, don’t you, I 

assume? And if I was a member of your family would there be certain doctors that you would not recommend that I go to, honestly? 

Ms. HOLLIER. I don’t have a list in my mind such as that. 

Mr. GONZALEZ. OK. Dr. Tippett, in Florida are there occurrences 

of medical malpractice? 

Mr. TIPPETT. Yes, sir, there are occurrences of malpractice, but 

what we are talking about here is to try to continue to provide access to medical care in the State of Florida. In South Florida, for 

example, most—— 

Mr. GONZALEZ. And Doctor, I only have 5 minutes and I understand where you are going, but since I only have the 5 minutes I 

would like to get where I would like to get but I end up in this 

discussion. You know a lot of doctors. If I was a member of your 

family, would there be certain doctors that you wouldn’t recommend I see? 

Mr. TIPPETT. Would not recommend you see? 

Mr. GONZALEZ. Sure. 

Mr. TIPPETT. I would put it in the other way. There are certain 

doctors that I would prefer over some other physicians. For example, I sent my daughter yesterday to my partner. I think that—— 

Mr. GONZALEZ. But why would I send them to the doctors at the 

bottom of the list? 

Mr. TIPPETT. I am sorry? 

Mr. GONZALEZ. Why wouldn’t you send your daughter to those 

doctors at the bottom of this hierarchy of qualified doctors? You are 

sending them to the one that you respect the most. I understand 

that. But you must have questions about all those others that are 

practicing that you would not send your daughter to. 

Mr. TIPPETT. Well, I wouldn’t send my daughter to every doctor 

in town. I would only pick out as you would in your family the one 

you thought that was most appropriate. 

Mr. GONZALEZ. Well, that is my point. 

Mr. TIPPETT. It is not always based on quality of the care. It is 

based on whether all of those factors—— 

Mr. GONZALEZ. Qualifications, ability, and competency in every 

profession, including the legal. That is why we have malpractice 

suits, because I will tell you this: In my private conversations with 

my friends who are doctors they would definitely tell me who to 

stay away from. And I venture to guess anybody up here today that 

has a dear friend or a family member or even Dr. Burgess himself 

who is a physician before he came to Congress obviously—knows 

those members of the medical profession that pose a danger to 

their patients. 

But like any profession we are going to have that. The problem 

is the profession doesn’t really discipline and regulate itself. Most 

professions don’t. So somehow we have to have a system that will 

protect the rights of those patients. I understand where we are all 

coming from: affordable healthcare, quality healthcare, defensive 

medicine and so on. So let us look at the Texas experiment. This 

is the goal standard, the goal standard. 

Average liability premium for internal medicine—malpractice 

premiums for internal medicine are 27 percent higher in Texas 

than in States without caps because what we are trying to do is 

224 

take that basic cost out of the equation and provide quality 

healthcare for everyone. But if someone is injured as a result of 

negligence they may just be left out in the cold. But let us just 

leave that aside. What we are trying to accomplish is reducing malpractice insurance premiums. General surgeons, OB–GYN malpractice premiums for doctors averaged across specialties are 6 percent higher in Texas than in States without caps. Malpractice premiums for general surgery are 21 percent higher in Texas than in 

States without caps. 

Those are the realities and we also know that the practice of defensive medicine may be an issue, but studies also show that that 

may be more attributable to overutilization because we know that 

is out there. It also may be due to unreasonable patients that is 

bigger—I have got an insurance company or the government’s 

going to pay so run every test that you can run on me. There are 

other reasons for the increased testing other than what we have referred to as defensive medicine. I am just saying let us be fair to 

the physician, but let us be fair to the patient and make sure that 

they have an adequate remedy when they are injured, disfigured, 

and disabled. Thank you, I yield back. 

Mr. PITTS. Chair thanks the gentleman. Yields 5 minutes to the 

gentleman from Georgia, Dr. Gingrey. 

Mr. GINGREY. I thank the chairman for yielding. Let me first go 

to Ms. Doroshow. I see that you represent the Center for Justice 

and Democracy. Let me ask you a series of questions and these are 

just strictly yes or no. Do you believe that all Americans in this 

country deserve justice? 

Ms. DOROSHOW. Yes. 

Mr. GINGREY. That is easy. Do you believe that medical providers 

should be held financially responsible for their share of medical errors? 

Ms. DOROSHOW. If they are fully responsible. 

Mr. GINGREY. Yes or no? Their share of medical errors? 

Ms. DOROSHOW. Well, are you talking about the—— 

Mr. GINGREY. If I say their share, obviously the question means 

they are not fully responsible. They have made some responsibility. 

I am asking you yes or no, should they be held financially responsible for their share of the medical error? 

Ms. DOROSHOW. If the—— 

Mr. GINGREY. Yes or no? 

Ms. DOROSHOW. Yes, but—— 

Mr. GINGREY. All right, your answer is yes. I have got another— 

a number of questions so we need to move on. Do you believe that 

medical providers should be sued and held financially responsible 

for medical errors that they did not cause? Surely you can answer 

that yes or no. 

Ms. DOROSHOW. I think not. That is correct. 

Mr. GINGREY. They should be? 

Ms. DOROSHOW. No, they shouldn’t. 

Mr. GINGREY. Thank you. I expected that. Do you believe that 

off-duty medical providers who happen to witness a horrible car 

crash and step in because victim’s life hangs in the balance should 

have liability protections, understanding that oftentimes they 

would be working without the benefit of any medical equipment or 

225 

a stable environment? They are on the street. They are trying to 

provide emergency care. Should they be held liability? 

Ms. DOROSHOW. These are good Samaritan laws and they—most 

States have them. That is different from an emergency room law. 

Mr. GINGREY. So most States have a law that would hold them 

not liable? 

Ms. DOROSHOW. Right. 

Mr. GINGREY. Your answer is yes. 

Ms. DOROSHOW. They are not expected to encounter—— 

Mr. GINGREY. Thank you. So basically the reason I ask you these 

questions is justice is a subjective term for your organization. Is it 

not? Is justice a subjective term? 

Mr. DOROSHOW. Exactly. I mean this is a determination by the 

jury if you are talking about a lawsuit, and that is what we believe 

in, the judge and jury. 

Mr. GINGERY. Well, we don’t have a jury here. We just simply 

have a panel of witnesses—— 

Ms. DOROSHOW. Well, we are talking about the civil justice system. 

Mr. GINGREY. And I am asking you pretty straightforward yes or 

no question. OK. Well, let me move on. Thank you very much for 

your response. I am going to go to Dr. Tippett. Dr. Tippett, thank 

you for your testimony. I have heard from many medical providers 

that in the bill PPACA, Affordable Care Act we sometimes refer to 

it on this side as Obamacare, not pejoratively, of course. We—you 

know it has created some new liability concerns. How does 

Obamacare create new liability concerns, Dr. Tippett? 

Mr. TIPPETT. Well, there are any number of ways and it is so we 

don’t yet know about what many things that may come of this 

progress, but of this bill. But for example if some panel determines 

that you can’t have this sort of treatment under Medicare and you 

have the treatment anyway, and things don’t go well, you may be 

sued in that regard. We considered this bill when we looked at it 

overall as a growth industry for the plaintiffs bar in terms of 

things that they could find that doctors do wrong. When there— 

comparative effectiveness I think is probably the most fertile 

ground for the plaintiffs bar. Any time—— 

Mr. GINGREY. Well, let me—I want to interrupt you just for a 

second because I get your drift. Do you then think that medical 

providers need to be protected from these new liability causes of action that may be embedded in the new Obamacare law? 

Mr. TIPPETT. Absolutely, yes, sir. 

Mr. GINGREY. Well, I want to once again let the panel know that 

I have a bipartisan bill, bipartisan bill H.R. 816 and I hope Congress will move quickly because if Obamacare is going to deepen 

this liability crisis it must be stopped. And of course that is what 

the provider shield law will actually do, and I think it is very important that we get that passed. Let me in my remaining minute 

to go to Dr. Hollier. Dr. Hollier, it is great to have you as a witness 

because you are a fellow OB–GYN, an American College of OB– 

GYN. And I am a very, very proud member and I practiced in that 

specialty as you probably know for 26 years delivering over 5,000 

babies, so it is near and dear to my heart and I appreciate you 

being with us. According to studies almost 30 percent of OB–GYNs 

226 

have increased the number of cesarean deliveries and 26 percent 

have stopped performing or offering traditional deliveries because 

of liability concerns and defensive medicine. Is that correct? 

Ms. HOLLIER. Yes, sir. According to our recent surveys by the 

American Congress of Obstetricians and Gynecologist our physicians are increasing those. 

Mr. GINGREY. All right, very quickly are cesarean deliveries more 

expensive than traditional—let us say a VBAC vaginal birth after 

a cesarean delivery? 

Ms. HOLLIER. Yes, sir. 

Mr. GINGREY. You state in your testimony that patients who 

eventually receive compensation through our current liability system obtain less than 50 percent of the amount awarded. What happens to the remaining 50 percent of the judgment or settlement? 

Ms. HOLLIER. That goes to the attorney, sir. 

Mr. GINGREY. It goes to who? 

Ms. HOLLIER. The attorneys. 

Mr. GINGREY. OK. Thank you and I see my time is expired. I 

yield back. 

Mr. PITTS. Chair thanks the gentleman. Now recognizes the 

Ranking Member from California, Mr. Waxman for 5 minutes of 

questions. 

Mr. WAXMAN. Thank you very much, Mr. Chairman. I think medical malpractice is a real problem. I don’t think the system is a 

very good one. People who should be compensated when they are 

hurt are often not because their cases are not attractive enough for 

a lawyer to take on. Some people are overcompensated. There is 

not justice in the system and this has been a perplexing issue for 

many, many years. 

In California, we adopted a law that—called MICRA which has 

been the law that many other States are emulating and a good part 

of the bill H.R. 5 is based on MICRA. But I have a question about 

whether we ought to be doing this at the Federal level. States have 

tried different approaches. There is no perfect approach to this unless you want to say it is about the providers. Providers will never 

be responsible even when they are negligent or even in reckless. I 

don’t think that makes any sense. I don’t like some of these caps. 

Frankly it is such a low cap and hasn’t been expanded so that— 

$250,000 seems to be an inadequate compensation for people who 

are going to live the rest of their lives disfigured and in pain. 

So I think it is still a State matter because the States have jurisdiction over insurance. The States have jurisdiction over licensure. 

One of the ways to deal with doctors who commit malpractice is 

to—is for—to have their peers under State law do something about 

it. That is a State matter. All States have already examined this 

issue of medical reform, liability reform and they have their own 

different systems, but we want to now in this bill preempt the 

whole matter and make it a one size fits all. That is why the National Conference of State Legislatures has written to express its 

strong bipartisan opposition to H.R. 5, and Mr. Chairman, I would 

like to ask unanimous consent to put their letter into the record. 

Mr. PITTS. Without objection, so ordered. 

[The information follows:] 

227 


71612.199
228 


71612.200
229 

Mr. WAXMAN. Ms. Doroshow, am I correct in my statement that 

States are trying different things out? 

Ms. DOROSHOW. That States—— 

Mr. WAXMAN. Are doing different things on their own? 

Ms. DOROSHOW. Well, yes, they have for 35 years. 

Mr. WAXMAN. Now Section 11 of this bill spells out to the extent 

to which State medical liability laws would be abolished or prevented from being enacted in the first place, in other words preempted. Ironically, the title of this section is State Flexibility and 

Protection of State’s Rights but it preempts the States if they don’t 

follow the Federal model. 

Professor Wolfman, can—what would this Section 11 mean for 

existing or potential State medical liability reform laws? 

Mr. WOLFMAN. Well, essentially it is essentially one way preemption. What it does is it preempts States. For instance if a State had 

a law saying or a policy that you know the jury can determine 

what is appropriate noneconomic damages that would be preempted. But if a State had a provision that was more punitive in 

my view, you know a $200,000 cap, that would not be preempted. 

Mr. WAXMAN. That would—— 

Mr. WOLFMAN. One way. 

Mr. WAXMAN. There is a provision in this bill that says if it— 

if there is greater protection in healthcare providers and healthcare 

organizations—— 

Mr. WOLFMAN. That is correct. 

Mr. WAXMAN [continuing]. That would not be preempted. 

Mr. WOLFMAN. That is absolutely correct. 

Mr. WAXMAN. But the bill goes on to preempt State laws to protect consumers? 

Mr. WOLFMAN. That is correct. It is one way. 

Mr. WAXMAN. That is a one-way preemption. California’s law has 

worked as I understand it to hold down insurance premium from 

malpractice, but that also seems to have been part of the insurance 

reforms adopted by the State. I don’t know if any of you—Ms. 

Doroshow, you have lived in California over—— 

Ms. DOROSHOW. Yes. What—— 

Mr. WAXMAN. Is that an accurate statement? 

Ms. DOROSHOW. It is the Prop 103 insurance regulatory law that 

passed in 1988 that is primarily responsible for that. Yes, for controlling rates in California. 

Mr. WAXMAN. Do you know if any evaluation has been done of 

the California medical situation to see whether it has stopped excessive practice in medicine or defensive medicine? 

Ms. DOROSHOW. In—— 

Mr. WAXMAN. Or is defensive medicine practiced in California 

the same as other places? 

Ms. DOROSHOW. As well as Texas. I mean, it—when you enact 

these caps and other tort reforms it has absolutely no effect on that 

issue. I mean, how could it? You are just limiting one small measure of damages and in a case it is not is going to change somebody’s practice. And I think that is generally what has been true. 

It certainly was true according to a very well-known article about 

Texas, McAllen, Texas in the New Yorker Magazine where they 

talked to some cardiologist and sat down and said they acknowlVerDate Aug 31 2005 11:33 Apr 10, 2013 Jkt 037690 PO 00000 Frm 00233 Fmt 6633 Sfmt 6633 F:\112-03~1\112-33~1 WAYNE
230 

edged the $250,000 cap had practically wiped out law suits in that 

State and yet they were still practicing the same kind of tests. And 

they attributed it—admitted that it was due to overutilization, having nothing to do with the legal system. 

Mr. WAXMAN. I would like my colleagues that support this bill 

which may well be almost all the Republicans, maybe all of them. 

I still think there are states’ rights and states’ prerogatives, and 

this really tramples on all of that. And that troubles me a lot. All 

answers to questions are not found in Washington, DC. Yield back 

my time. 

Mr. PITTS. Chair thanks the gentleman and now recognizes the 

gentleman from Kentucky, Mr. Guthrie for 5 minutes of questions. 

Mr. GUTHRIE. Thank you, Mr. Chairman. My friend from Texas 

said who is left out in the cold and what is fair for the patient. And 

in the terms of access to legal representation and you would have 

to say perhaps that there would be if you limit fees—obviously if 

you are going to limit price, price controls—you know people are 

going to in turn to that business as often. But the question as I 

have listened to the Texas story and I can tell you about Kentucky 

is what is fair for the patient in term of access to healthcare? I 

mean, that is the issue that we have. I believe if I am correct 22 

rural counties gained OB–GYNs and 10 counties had an OB–GYN 

that did not have. In my situation I have three children. If I had 

a fourth, we couldn’t have the same doctor who delivered the first 

three because he doesn’t practice OB because of medical malpractice specifically for that. Two hospitals in my hometown, one 

doesn’t do OB anymore because of medical malpractice. Now there 

is a hospital across town you can go to, but if you get into rural 

parts of Kentucky, it—you can’t—and it is part of the eastern part 

of the State you have to drive a couple hours to Lexington. You 

know about disproportionate effect on the poor. Not that middle 

class and upper middle class people don’t have to drive 2 hours, but 

they can afford it a lot easier than somebody that is poor. 

And I am telling you if you give free healthcare to somebody in 

parts of my State they are not going to be able to go to a doctor 

unless they drive 2 or—over 2 hours because of access to medical 

care. An OB–GYN that I am very close to has to pay $105,000 for 

healthcare OB–GYN practice in Kentucky. So that is why we are 

losing people practicing. 

So even if you admit and I think you would have to if you are 

a person that doesn’t believe in—if you—economics and you said 

the free market of price controls would perhaps limit some people 

to big awards, the overall—what we have to look at and Ms. 

Doroshow, is it a fair argument to look at to say well, what about 

the access? Because you know some people are arguing that tort reform didn’t change the issues in Texas. You know the evidence 

seems to say they did, but I can tell you we are losing OB–GYNs. 

If it is not tort reform for some reason in Kentucky and it is the 

access to care not something that we as policymakers have to make 

decisions when we—what is fair for one patient—maybe access to 

the legal. What is fair for one patient—access to care. 

Ms. DOROSHOW. Well, I would point you to page 23 of my written 

testimony where it describes study after study after government 

study showing that medical malpractice issues have absolutely 

231 

nothing to do with the access to care argument. And frankly, if the 

argument is that insurance rates are too high as they have been 

three times in the last 30 years as we have gone through this cyclical market, the solutions to that problem lie with the insurance industry. They should not be solved on the backs of injured patients. 

And we are dedicated. We have an organization called Americans 

for Insurance Reform that is dedicated to try to help get some control over the property, casualty insurance industry. That is one of 

the least regulated industries in the country. They are exempt from 

anti-trust laws and that is something that Congress could do is to 

get rid of the anti-trust exemption that—— 

Mr. GUTHRIE. What about the Texas situation? The Texas— 

didn’t—I am asking. I am not trying to lead you in a way or Mr. 

Wolfman, did Texas malpractice reform not lower premiums? Is 

that—are you thinking it was something outside of? Because they 

didn’t put caps in control. 

Ms. DOROSHOW. Texas—right after the law was passed in 2003, 

Texas insurers went in for between a 35 and 65 request for rate 

hikes. That is because we are in a hard market in this country. It 

was happening in every State in the country. In 2006, rates stabilized everywhere in the country. In every State in the country no 

matter whether they passed these laws or not and that simply 

as—— 

Mr. GUTHRIE. But so the access in these rural counties in 

Texas—was it, you don’t think—— 

Ms. DOROSHOW. The access to the rural counties—look in 2007 

there is a big Texas Observer article called ‘‘Baby I Lied.’’ It was 

all about how misrepresenting the medical societies word in terms 

of where the access was going to improve in those rural counties 

and they were not—they had not improved. And I would also point 

you to this very important study by Charles Silver, David Hymen, 

Bernard Black, the impact of the 2003 medical malpractice and its 

cap on physicians supply. Basically the account—— 

Mr. GUTHRIE. I am not cutting you off because I don’t want to 

hear it and I—— 

Ms. DOROSHOW. Well, this is—— 

Mr. GUTHRIE [continuing]. Understand—— 

Ms. DOROSHOW. This is the actual analysis of what happened to 

physician supply in Texas. The—— 

Mr. GUTHRIE. But I know we are losing OB–GYNs in Kentucky 

and rural part and maybe there are lots other but as a doctor, I 

know you just—what you said. I am not trying to cut you off because I don’t want to hear it. I just want to give Dr. Hollier—I 

guess you have 20 seconds to say that. 

Ms. HOLLIER. Thanks. Ranks of rural obstetricians increased by 

27 percent. Imagine yourself 9 months—— 

Mr. GUTHRIE. Because of malpractice or that is the question 

that—that is this—— 

Ms. HOLLIER. Yes. 

Mr. GUTHRIE. You are not denying the increase, right, Dr. 

Doroshow? 

Ms. DOROSHOW. Yes, I am denying it. 

Mr. GUTHRIE. You are denying that it increased? OK. 

232 

Ms. DOROSHOW. According to this study, population went up 2 

percent. OB–GYNs went up 1.6 percent annually since the cap 

passed. 

Mr. GUTHRIE. But we have OB–GYNs in Bowling Green. The 

question is we don’t have then in some county—— 

Ms. DOROSHOW. Well there are dual problems that are very common in every single State. The way to fix that problem is to provide 

incentives for doctors to go into those areas not to cap damages for 

the entire State. 

Mr. GUTHRIE. But they did in Texas. That is the question. 

Thanks. I yield back. 

Mr. PITTS. Chair thanks gentleman and recognizes gentlelady 

from California, Mrs. Capps for 5 minutes. 

Mrs. CAPPS. Thank you, Mr. Chairman. As I touched on in my 

opening today I believe that in order to solve the issues of rising 

malpractice costs, we can’t ignore one of the major issues here 

which is reducing the incidents of malpractice, bringing down the 

astounding number of costly medical errors that claim 98,000 lives 

a year. I want to be clear many of these deaths would be wholly 

preventable through the adoption of simple measures like increased 

focus on communication between doctors and nurses, appropriate 

staffing levels as increasing the use of simple but effective checklists. 

To that end, I join with my colleague Mr. Holt on—in introducing 

the Medical Checklist Act of 2010 in the 111th Congress. Checklists have long been used in commercial aviation as well as the 

number of other fields to ensure that complicated procedures are 

performed safely. They have been used because they work and 

their increased use in medical centers—settings is one way to improve patient test—safety. In your testimony, Ms. Doroshow, you 

spoke of the importance of focusing on patient safety and highlighted how one study in obstetrics department was able to reduce 

medical errors in claims by 99.1 percent by instituting a department wide program focused on ways that they can improve patient 

care; for example, establishing new drug protocols, improving communications between medical staff. What kind of incentives do you 

believe prompted the implementation of this systemic approach to 

improving patient safety? Do you think this kind of program could 

be replicated in other hospitals or other branches of medicine? 

Ms. DOROSHOW. Absolutely and in fact it is not the only—it is 

New York Presbyterian Cornell Medical Center study beginning in 

2002. At the request of the insurance carrier for this hospital, they 

implemented these things and as you said claims—everything went 

down. But it is not the only situation where that has been repeated. We also had somebody testify before, a task force I was on 

from a Boston hospital the same kind of results. It is extraordinarily successful at reducing errors and claims in compensation 

payments. 

Mrs. CAPPS. And then real quickly in your reading of H.R. 5 is 

there anything that improves on patient protection measures that 

reduce the instance of medical errors? 

Ms. DOROSHOW. No, absolutely not. 

Mrs. CAPPS. OK. Well, I think this is an area where all of us can 

agree that this kind of approach, these innovative approaches are— 

233 

is worth learning from. I want to turn now to Dr. Kachalia. In your 

testimony, you described your review of the current evidence regarding the effective liability reform measures such as those contained in H.R. 5, you say for example there is not enough evidence 

to evaluate the impact of caps on the overall quality of care. I 

found the paper that you did in 2008 very interesting. You wrote 

that with regard to problems of liability costs and quality, there is 

a growing awareness and this is a quote from your statement— 

your letter. ‘‘Traditional tort reform measures such as caps on noneconomic damages will not solve them.’’ You go on to say that 

‘‘There is also increasing recognition that such measures do little 

or nothing to make care safer. Would you agree then, Dr. Kachalia, 

that the grants program included in the Affordable Care Act that 

permits States to conduct pilot projects to test some of these methods is a sensible first step before we enact sweeping legislation that 

would impose a batter of tort reform provisions on all States? And 

kind of a yes or no, because I will... 

Mr. KACHALIA. So—— 

Mrs. CAPPS. Actually, I have time. 

Mr. KACHALIA. So yes, I actually think the grants program that 

is being contemplated is a great thing because as we look to improve our liability system we should be looking to see how we can 

improve the quality of the safety of the care that we deliver at the 

same time. So as we—I think there is general recognition also that 

we need to fix the premium problem. We need to fix this issue with 

excessive economic awards, but at the same time there is no reason 

we couldn’t package this with other measures that will also help 

with safety. So I think a grants program to investigate and give us 

more data on how to fix these problems is all—would be a welcome 

thing. 

Mrs. CAPPS. And to corroborate that, Ms. Doroshow, the Affordable Care Act does include grants and encourage States to experiment with various methods to address medical liability in their 

State. Of course in keeping with the way that we have always 

treated medical as a State and not a Federal issue, do you want 

to comment on the same kinds of programs that you have seen 

where States are kind of testing the waters to see if there are programs that they can implement at the State level? 

Ms. DOROSHOW. Yes, I mean a number of grants were made by 

HHS and we are waiting to see the results of those. Most of them 

are very focused on patients safety which I think is the correct way 

to go in solving this problem. 

Mrs. CAPPS. Thank you. And I yield back my time but I ask 

unanimous consent to insert in the record a letter from the Consumer Watchdog that clearly shows that caps alone did nothing to 

decrease medical malpractice premiums by the study. 

Mr. PITTS. Without objection, so ordered. 

[The information follows:] 

234 


71612.201
235 


71612.202
236 


71612.203
237 

Mr. PITTS. Chair now recognizes the gentleman from Illinois, Mr. 

Shimkus, for 5 minutes. 

Mr. SHIMKUS. Thank you, Mr. Chairman. This is a really great 

hearing. I have been a Member since ’96. We have dealt with this 

numerous times. And it is not an easy issue, and so I appreciate 

all the folks at the panel. First, Mr. Chairman, I would like to submit into the record two articles. One November 14, 2010; March 9, 

2011, New York Times, and I don’t know who this was. And it—— 

Mr. PITTS. Without objection. 

[The information follows:] 

238 


71612.248
239 


71612.249
240 


71612.250
241 


71612.251
242 


71612.252
243 


71612.253
244 


71612.254
245 


71612.255
246 


71612.256
247 


71612.257
248 

Mr. SHIMKUS. It addresses an issue of loaning money, in essence 

usury and rates within the States. Let me read the paragraph: 

‘‘Large banks, hedge funds and private investors hungry for new 

and lucrative opportunities are bankrolling other people’s lawsuits, 

pumping hundreds of millions of dollars into medical malpractice 

claims, divorce battles and class actions against corporations—all 

in the hope of sharing in the potential winnings.’’ So they are using 

medical issues and there is a—actually, there really is a debate 

now in States and whether this is a State issue or Federal issue 

I am still going to try to reconcile that debate. It has been raised 

up, but States are—we are involved with credit card rates now 

here nationally. States are involved in loan sharking and payday 

loan issues and rates, so I would like to submit that. And I have 

got some other things, but Dr. Tippett, you are a neurosurgeon? Is 

that correct? 

Mr. TIPPETT. Yes, sir, I am a neurosurgeon. 

Mr. SHIMKUS. And in Illinois we have gone on and off of medical 

liability reforms and we just had one. It just got overruled by the 

Supreme Court. Now we are kind of in limbo until we see if anything else could pass. Before the last passage of State Liability Reforms we did not have a single neurosurgeon south of Springfield, 

Illinois, which is parts of 52 counties. Now as a practitioner of that 

specialty that is a danger sign,s wouldn’t you think? 

Mr. TIPPETT. Absolutely. You talk about—everybody’s talking 

about what do we want to do about patient safety and I am thinking when you don’t have someone there to take care of the patient 

it is not very safe. If you have got to travel 500 miles to get to see 

a doctor, that is not safe. 

Mr. SHIMKUS. Fifty-two counties, yes. 

Mr. TIPPETT. We are all for patient safety, but you have to have 

the physician access. 

Mr. SHIMKUS. Yes, reclaiming my time. Fifty-two counties is a 

third of the State of Illinois, and at that time we would have to airlift folks who are in critical acts—I mean to airlift them 100, 150 

miles maybe to New York—not New York to St. Louis, Dens Sens, 

maybe Paducah, to other places who had across the State line who 

had neurosurgeons because they had lower—and that is why I 

think if you hear the testimony of some of the members’ concerns, 

we are from rural districts. We are from districts that have problems with access to care and that is where our passion for this debate comes from. So I just—I will put that on the table. 

The other thing I found interesting, Ms. Doroshow, and I appreciate your testimony. I appreciate you raising this issue of Dr. Lora 

Ellenson and the quotes in there and the story. Because I think if 

I ask this question to everyone—this is the doctor who has the disabled son that wants a judgment to be made to pay for the care 

of that son for the rest of his life. No one at this panel would disagree with that. Would you? Would you, Dr. Hollier? Would you 

disagree? 

Ms. HOLLIER. Would not disagree. 

Mr. SHIMKUS. Ms. Doroshow, would you disagree? 

Ms. DOROSHOW. Would not. 

Mr. SHIMKUS. Yes, Dr. Kachalia? You wouldn’t disagree. Mr. 

Wolfman? 

249 

Mr. WOLFMAN. No. 

Mr. SHIMKUS. Dr. Tippett? 

Mr. TIPPETT. Absolutely not. 

Mr. SHIMKUS. So no one would disagree with it. There is something that we can all agree upon. Now this debate is really about— 

and I am not a lawyer, OK, and sometimes I wish I was and sometimes I am glad I am not—but this is the issue of the second part 

of a medical liability claim which is pain and suffering. Now, this 

is in the issue because the Governor of New York is trying to cap 

pain and suffering at $250,000. Is that correct, Ms. Doroshow? 

Ms. DOROSHOW. That is—no. I mean, that was—— 

Mr. SHIMKUS. Yes, that was in the story that you used it for? 

Ms. DOROSHOW. No, that is over it. That was withdrawn. 

Mr. SHIMKUS. OK, but it was. 

Ms. DOROSHOW. That was withdrawn. 

Mr. SHIMKUS. But it was—— 

Ms. DOROSHOW. It was the hospitals that were on a refined 

scheme that—— 

Mr. SHIMKUS. All right, do I want to read the story that you 

quote in your—do I want to read the story? 

Ms. DOROSHOW. Well—— 

Mr. SHIMKUS. The story—— 

Ms. DOROSHOW. Since I wasn’t involved in it—— 

Mr. SHIMKUS. OK. I don’t want to fight this. 

Ms. DOROSHOW [continuing]. I can—— 

Mr. SHIMKUS. The story is based on Cuomo had proposed capping at $250,000. That is part of the story that you used. And I don’t 

want to go on that fight, but that is what raised this story was her 

concern of Governor Cuomo’s. 

Ms. DOROSHOW. Well—— 

Mr. SHIMKUS. Now the issue was this. Mr. Chairman, the time 

is mine. The time is not the ranking member of the full committee’s, and I ask for my 15—— 

Mr. PITTS. Shimkus—— 

Mr. SHIMKUS [continuing]. Seconds returned based upon the disruption by the ranking member. 

Mr. PITTS. You may proceed. 

Mr. SHIMKUS. Thank you, Mr. Chairman. Now the issue is this, 

that in a court case what we should have—there is economic damages that should be recovered. This issue of pain and suffering is 

what is driving this. Now in California, one economic damage case 

recovered $96 million. So this debate is about the pain and suffering aspect that actuarially insurers can never quantify because 

there is no cap. Thank you, Mr. Chairman. I yield back my time. 

Mr. PITTS. Chair thanks the gentleman and recognizes the gentleman from New York, Mr. Weiner, for 5 minutes. 

Mr. WEINER. Thank you, Mr. Chairman. You know, I think that 

Mr. Gingrey’s question earlier should inform our debate about who 

should make these decisions. Now Mr. Gingrey suggested in his 

questions that you should or he should, when in fact we have a history of jurisprudence in this country that empowers our constituents to make these decisions, that they are smart enough to send 

Mr. Gingrey to Congress, they should be smart enough to sit on a 

jury. Or alternatively they should be smart enough to pass State 

250 

laws. It is interesting that in Mr. Gingrey’s explanation of Constitutional authority for this bill, he writes the Constitutional authority in which this legislation is based is on Article I, Section 

VIII, Clause III of the Constitution as healthcare related lawsuits 

are activities that affect interstate commerce. If that is the explanation for trumping tort law in the States where does—so we can 

take this book—this is New Jersey’s law and say that apparently 

Congress knows better. So we are going to trump State law. Like 

there is not a Federal tort regime now. It is basically they are in 

the individual States. It is the right of the States. The Tenth 

Amendment of the Constitution reserves this for the States. Why 

stop there? If we are not going allow the State to make health-related tort laws, then who is going to decide? I am impressed with 

Mr. Wolfman—and, by the way, I am not a lawyer, but if we ever 

had a law firm Wolfman and Weiner, I mean, we would just—I am 

serious, we would just get clients just on the sheer intimidation 

factor. But perhaps you can talk a little bit about the idea that 

there are some areas of the law that we reserve for the States and 

the effect that this would have on the regime of State tort law because frankly, we could really go to every extreme. You really could 

say that every court case can be decided in this room theoretically. 

I mean, if you are going to say, if you are going to trump State tort 

laws for this, where does it stop? Is there no line that you don’t 

cross? I mean, I thought that part of the ethos of this new Congress 

was respect for the Constitution. I mean, this basically tramples on 

the Tenth Amendment worse than anything I have seen in awhile. 

You want to comment on that, Mr. Wolfman? 

Mr. WOLFMAN. Yes, Mr. Weiner, that—first of all you are right 

that the tort system has been traditionally one in which the State 

has had plenary authority. And let me just add and I think that 

this goes to the point that was asked to me earlier. What this bill 

does, it not only trumps the States, but it does it in entirely a oneway direction. So in other words, what it does is it is—it pretends 

that the State system will continue to exist and it only imposes 

Federal law when it undermines the rights—— 

Mr. WEINER. Right. 

Mr. WOLFMAN [continuing]. Of people who are harmed. And that 

is—and let me make one other point. Now it is one thing to waive 

around a $96 million punitive—pain and suffering judgment. There 

is a big difference between 250,000 and 96 million. That is what 

we are talking about. We are talking about the people who have 

to live for the rest of their lives with disfigurement, phantom pain, 

blindness—$250,000? 

Mr. WEINER. Well, and then there is the other question that I 

think is at the foundation and it is worth having a conversation 

here about. Who gets to make the decision? If you are patient in 

rural Georgia in Mr. Gingrey’s district and you want a jury of your 

peers to hear your case or you are a doctor or you are a hospital 

and you want a jury of your peers to hear the case, under this law 

effect—under this proposal, effectively that jury is meaningless. If 

that jury comes to the conclusion and there are smart people in 

Georgia. There are smart people in Mr. Gingrey’s district and they 

hear the evidence and they draw a certain conclusion, they are now 

going to be told that actually it doesn’t really matter. That exercise, 

251 

your State legislator that passed that law doesn’t matter. The State 

legislature that approved it and the Governor that signed it— 

doesn’t matter. That jury that sat—doesn’t matter. The witnesses 

that were called—doesn’t matter. The victim himself, his or herself 

doesn’t matter as it relates to Georgia. It only matters as it relates 

essentially to big Washington. You are saying it is going to be in 

the Federal judicial system. And I would say that it is very hard 

for anyone to call themselves small government or respectful of the 

Constitution or concerned about states’ rights and support the 

Gingrey measure. Because what you are really saying is all of 

those things we have heard about. Even the Texas law could theoretically be trumped tomorrow because we can just change the 

limit or change a word and suddenly Texas laws are thrown out. 

I mean, we have all these law books that are filled with what people have done. The Code of Virginia—all these different laws that 

were passed and now we are going to say that no, it is Washington 

that is going to make that decision. I, for one, find that offensive 

to the Constitution of the United States. 

Mr. PITTS. The gentleman’s time is expired. The Chair recognizes 

the gentleman from Louisiana, Dr. Cassidy, for 5 minutes for questions. 

Mr. CASSIDY. Thank you. I will first by—end up by quoting or at 

least summarizing the gist of Mr. Weiner’s speech from yesterday 

saying that we can’t rely on State insurance commissioners to create standards because otherwise, I think I remember him saying, 

somebody in one State will define the lowest common denominator 

and there was a basic obligation of the people who set the kind of 

rules in which there needs to be rules of the road. So it seems a 

little contradictory. That said, Mr.—Dr. Kachalia, I enjoyed your 

brief, if you will. I am a physician so it is—I don’t want to insult 

you by calling it a brief, no offense to the attorneys. But it was 

well-referenced. I like that. I also have here a chapter from a textbook on healthcare economics. And it is saying stuff that frankly 

I find very disturbing. Let us see, less than half of malpractice insurance premiums, one third of 1 percent of total healthcare, but 

less than half of malpractice healthcare premiums are returned to 

victims of negligence and the remainder is spent on overhead and 

legal fees. So it is less than half. I mean, the medical loss ratio in 

PPACA for insurance companies is 85–15 percent. This is something like 55 going to overhead and 45 not. That is disturbing. It 

also goes on to say that there is limited evidence. Mr. Gonzalez 

suggested that the purpose as did you, Ms. Doroshow, the purpose 

of malpractice is the deter bad physicians, but this article goes on 

to say that there is limited evidence that bad physicians are removed through the malpractice system. Any comments upon that? 

Mr. KACHALIA. If I can start, so starting with the overhead costs 

I do think that is one of the biggest problems that we have in our 

current system with the way the litigation process works you often 

have the need for expert testimony on both sides. 

Mr. CASSIDY. So just to summarize that is money not going to 

victims of malpractice, it is money going to overhead? 

Mr. KACHALIA. Correct. 

Mr. CASSIDY. OK. Continue. 

252 

Mr. KACHALIA. Correct. And so this is one of the problems that 

we have noted in the system because there—we advocate it shows 

that there is a need for reform in this regard because it takes way 

too long and it is much too expensive to adjudicate claims. So that 

if we—— 

Mr. CASSIDY. If we have somebody who is a victim of malpractice, 

a sponge is left in the belly, then really there is a length of time 

before that is adjudicated, the patient gets relief, begins to get the 

extra dollars she may need for her recovery and an ordinate 

amount is consumed in overhead? Fair example? 

Mr. KACHALIA. That can be a fair example although unless people are starting to settle much more quickly, but if they—if the provider chooses not to settle, yes, that is a fair example. 

Mr. CASSIDY. OK. So Mr. Gonzalez’s point that we are actually 

using the malpractice system to drive physicians out who shouldn’t 

be practicing, do you think that is valid? Does that work? 

Mr. KACHALIA. I don’t remember his exact example but I am not 

sure that the medical malpractice system—because we don’t see as 

many claims as one would expect for the amount of error that occurs. It may not necessarily be sending the right signal to all of the 

providers we want to send it to. I do think that to some extent it 

does impact people and does drive some accountability because people do worry about being sued. And I do think there is some accountability—— 

Mr. CASSIDY. Now, that accountability though—I am a physician, 

so one of the general surgeon says that when he goes to the emergency room it used to be a history and physical form. Now it is a 

history, physical, and CT scan form. 

Mr. KACHALIA. Right. 

Mr. CASSIDY. Because folks are so afraid if you come in with a 

headache you could have had the headache for 10 years, you are 

getting a CT scan. I see Dr. Tippett nodding his head. I think 

$1,000 test with lots of radiation, but that way if you are sued you 

have got the CT scan. In fact, fair to say it also drives some of that 

practice, too. 

Mr. KACHALIA. I think it is fair to say it drives defensive practices and also drives accountability at the same time. The question 

is which one is being—which one is winning the battle so to say? 

Mr. CASSIDY. Now, I also read in this article from an academic 

textbook that only 2 percent of negligence victims file claims, but 

6 percent of patients who are not victims of negligence file claims. 

That is incredible. Dr.—Mr. Wolfman is looking kind of surprised. 

I can find the exact reference and I can show the chapter. But that 

apparently people who aren’t victims of negligence 6 percent of the 

time file malpractice claims. Dr. Tippett, how would that impact 

your practice? 

Mr. TIPPET. Well, it—I mean, you had the perfect example. You 

can’t get into or out of my office without having an MRI scan these 

days and it is not because you need one necessarily when you come 

in, but because when we see a patient in the office we think of a 

differential diagnosis rather than just to that one thing like treat 

a simple back pain for a few weeks to see if they are going to get 

better because there is one in a thousand chance that patient may 

have a tumor in their spine we get an MRI scan. That is unnecesVerDate Aug 31 2005 11:33 Apr 10, 2013 Jkt 037690 PO 00000 Frm 00256 Fmt 6633 Sfmt 6633 F:\112-03~1\112-33~1 WAYNE
253 

sary, increasing the cost of medicine. It doesn’t need to be done, but 

nevertheless it is exactly what occurs in every ER and every doctor’s office in this country. 

Mr. CASSIDY. I am sorry. I am out of time. I had a question for 

you, Ms. Doroshow and I forgot—one question, Dr. Hollier, why is 

it Hollier, not Hollier as in Louisianans? 

Ms. HOLLIER. It is Hollier, sir. 

Mr. CASSIDY. Thank you very much. I just—warms my heart. 

Mr. PITTS. Chair thanks the gentleman. Recognizes gentlelady 

from Illinois, Ms. Schakowsky for 5 minutes. 

Ms. SCHAKOWSKY. Dr. Tippett, you just said that you perform unnecessary procedures? 

Mr. TIPPETT. That is not what I said. 

Ms. SCHAKOWSKY. Yes, you used the word unnecessary. 

Mr. TIPPETT. No. 

Ms. SCHAKOWSKY. We could go back and ask for a reading of the 

transcript, but you said that—— 

Mr. TIPPETT. Unnecessary at that particular time. 

Ms. SCHAKOWSKY. Uh-huh. 

Mr. TIPPETT. It is a necessary procedure in the differential diagnosis that I mentioned earlier, so it is not unnecessary. It is the 

question of timing. My point was—— 

Ms. SCHAKOWSKY. But you are saying—now you are saying it is 

unnecessary because I want to know if you—when you do that you 

order—if you order something that is medically unnecessary do you 

also bill Medicare and Medicaid for or private insurance for this 

work? 

Mr. TIPPETT. I don’t order tests that are unnecessary. 

Ms. SCHAKOWSKY. Excuse me? 

Mr. TIPPETT. I don’t order tests that are unnecessary. 

Ms. SCHAKOWSKY. Well, OK, you said it was absolutely unnecessary. I wanted to just—— 

Mr. TIPPETT. At that particular time. I am sorry I was trying to 

be brief in my comments—— 

Ms. SCHAKOWSKY. Yes, exactly. 

Mr. TIPPETT [continuing]. And I did not add to the—— 

Ms. SCHAKOWSKY. You said no one leaves your office without getting an MRI because—and the implication was because you want 

to avoid litigation. And what I am asking you if you are billing 

Medicare, Medicaid, or private insurance for these procedures that 

you view to be unnecessary. 

Mr. TIPPETT. I didn’t say I viewed them to be unnecessary. 

Ms. SCHAKOWSKY. You did. 

Mr. TIPPETT. I said—no, ma’am, I did not finish the sentence earlier when I said that test wasn’t necessary at that particular time. 

Ms. SCHAKOWSKY. No, you didn’t. OK. 

Mr. TIPPETT. It is a necessary test to determine whether or not 

someone has a tumor was my entire—— 

Ms. SCHAKOWSKY. Yes, I actually wanted to start what I was saying until I heard that disturbing sentence—those disturbing remarks that actually I think there might be a way that we could be 

on the same side with doctors. This is not a war between doctors 

and lawyers. This is about people that get hurt. Now what—it is 

so interesting to me that injured patients become the focus. And we 

254 

are going to take it out on them rather than looking at the insurance companies. And why it is that you who have maybe never 

been sued and doctors, the small number who actually may engage 

in dangerous behavior that causes patients to be injured, why you 

are asked to pay the similar insurance? I—there is—it doesn’t— I 

don’t believe there is experience rating in medical malpractice insurance. Is that true, Ms. Doroshow? 

Ms. DOROSHOW. Right, it is rated by specialty primarily now. 

Ms. SCHAKOWSKY. You know which really, I think is unfair. All 

of us want to see that obstetrician gynecologist, and neurosurgeons 

are able to practice where they want to practice without and without any distinction from the bad actors that are in those professions. And we all admit that there have to be those. So what I 

wanted to ask Mr. Wolfman or Ms. Doroshow, will capping damages, that is actually making sure that the real victims lead to 

lower rates? 

Ms. DOROSHOW. Well, if history is any guide at all, it absolutely 

won’t. You look at State after State. Missouri for example, Maryland both had severe caps in the mid-80s. They experienced very 

severe insurance crises in the early part of the 2000s. Missouri’s 

rates went up 121 percent. This is true in every State. Ohio passed 

caps. The insurers immediately went in; asked for rate hikes. Oklahoma the same thing. Mississippi the same thing. In Texas they 

would be—after 2003 the cap passed. The insurers immediately 

went in for rate hikes. Until the market stabilizes and it happens 

everywhere in the country irrespective of a State’s tort law. States 

will—rates will continue to go up. That is an insurance problem 

that needs to be fixed. 

Ms. SCHAKOWSKY. Exactly and I think that we are absolutely 

looking in the wrong direction and if we want to help doctors to be 

able to in their view afford to practice where they want to practice, 

to say to people whose lives have been permanently altered that 

the burden is now going to be on you. And by the way, $250,000 

which was a number decided in California years and years ago 

would be a million dollars now. So we are not even talking about 

a situation where we are going to be able to people—to have people 

restore their lives. I think if we could work together on figure—on 

pointing our finger in the right direction that this is an insurance 

problem—it has already been stated that most people, and you 

stated it yourself, Dr. Kachalia, that not as many injured people actually file claims. A very small percent do because you know it is 

laborious, it is expensive, it is hard to do. 

Mr. KACHALIA. It is not as if you want me to comment, but I do 

think there is a premium problem, but there is also the issue of the 

emotional cost of a suit that gets attached and the behaviors that 

result from it. So it is not just all about premiums. 

Ms. SCHAKOWSKY. Well, there is a lot of emotion attached to having the wrong breast removed or yes. Um-hum. 

Mr. PITTS. The gentlelady’s time has expired. Chair now recognizes my colleague from Pennsylvania Dr. Murphy for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. A few questions here. 

First, Mr. Wolfman, I am trying to understand this—how this 

works. Is there a correlation between unlimited noneconomic damVerDate Aug 31 2005 11:33 Apr 10, 2013 Jkt 037690 PO 00000 Frm 00258 Fmt 6633 Sfmt 6633 F:\112-03~1\112-33~1 WAYNE
255 

ages and unlimited punitive damages in improvement in 

healthcare? 

Mr. WOLFMAN. I think the answer to that is yes with one caveat. 

I mean, that—— 

Mr. MURPHY. Do—was there a study that you could refer us to? 

I would have actually looked to see that. I am not looking for you 

to—I am not going to put you on the spot with a guess. 

Mr. MURPHY. There are. There are some famous studies on punitive damages that show some relationship. I just—with the word 

unlimited, but yes and I can get those to the committee. 

Mr. MURPHY. I mean, I am not talking about a single award that 

is given in a case, but I mean overall? 

Mr. WOLFMAN. Yes, yes. 

Mr. MURPHY. You think you can do that for us? Thank you. So 

in other words feel that when we have the ability for higher damages or punitive damages not economic damages we could—expect 

to see overall improvement in healthcare driven by that factor separate from other things? 

Mr. WOLFMAN. As I understand what you are saying I think the 

answer is yes and I can get that to the committee. 

Mr. MURPHY. OK. Now, is there also a correlation then between 

the more an attorney gets paid and an improvement in healthcare? 

Mr. WOLFMAN. I think the answer to that is yes and no and I 

think it is not an easy answer that what I—the point I was making 

about lawyer compensation through our contingent fee system is 

that if you have rates that are driven by the Congress of the 

United States that are way below the market which is what this 

bill does you are not going to attract lawyers to take important difficult cases. You are not going to get the best lawyers on the most 

difficult cases particularly the cases for instance older people who 

have no wage income, people whose income so to speak would decide—— 

Mr. MURPHY. And the attorney wouldn’t have the money to really 

advance this case. I understand that point. 

Mr. WOLFMAN. Right, that is the problem. So it—— 

Mr. MURPHY. You have a delay—this goes back—— 

Mr. WOLFMAN. Your correlation that you are talking about I— 

with all respect doesn’t ask the right question. 

Mr. MURPHY. Well, I mean—— 

Mr. WOLFMAN. The question is whether the market is going to 

attract people to take difficult cases. 

Mr. MURPHY. It is important because then you would have the 

justice delayed is justice denied issue. Well, let us talk about that 

market. I know in Pennsylvania we have some serious problems 

with attracting neurologists and OB–GYNs to the market. And for 

some of the physicians here perhaps some of you can enlighten me 

on this, but I know when I have seen in States they list the number of people who have a medical degree or license in that State. 

My understanding they will look at all licenses including the residents and interns, semi-retired physicians and even those who may 

still have a license in Pennsylvania but have moved down to South 

Carolina or somewhere else to retire in. Is that correct? Can anybody—I see some heads nod that is correct. 

Mr. TIPPETT. That is correct. 

256 

Mr. MURPHY. I also hear from some top medical schools—I am 

on the faculty of the University of Pittsburgh School of Medicine. 

I should disclose that—the Department of Pediatrics. And one of 

the things I hear from some other departments is for example, they 

will have an entire class year after year of graduates from a top 

level residency program in OB–GYN and not a single one of those 

residents remains in Pennsylvania. So I go to this question then if 

we don’t have OB–GYNs and I have friends of mine who are neurologist say they have spent years trying to attract a neurologist 

to join their practice. I have some neurologists here in front of us. 

If you don’t have enough people to treat patients, what does that 

do in terms of delaying care? Anybody answer that for me or 

enough OB–GYNs in a practice to delay—does that affect care? 

Ms. HOLLIER. Absolutely. If you don’t have available obstetrician 

gynecologists care is definitely affected. Imagine being 9 months 

pregnant in Blanco County that had no obstetricians prior to the 

passing of—— 

Mr. MURPHY. And why don’t they want to stay in that State? 

Ms. HOLLIER. OB–GYN doctors do want to stay in the State of 

Texas. 

Mr. MURPHY. But what are—is the cost of medical liability insurance part of that overall concern in one State versus another and 

they can leave and go to another State? 

Now I go back to Mr. Wolfman’s comment at the crux of not 

going forward with H.R. 5 as you affect the marketplace. So I ask 

the physicians, does this affect the marketplace to not deal with 

this issue? Dr. Tippett? 

Mr. TIPPETT. Well, absolutely. 

Mr. MURPHY. Dr. Kachalia, does that affect the marketplace? 

Mr. KACHALIA. I mean I will reiterate. I think we need reform. 

It is going to help the marketplace. 

Mr. MURPHY. Ms. Doroshow, you have a comment you want to 

make? 

Ms. DOROSHOW. Well, you know Michelle Mello from Harvard actually did a study of Pennsylvania doctors and compared access to 

care in Pennsylvania before and after the most recent liability insurance crisis when rates went up. 

Mr. MURPHY. Um-hum. 

Ms. DOROSHOW. And found there is no connection whatsoever. 

Mr. MURPHY. Between amount of physicians? 

Ms. DOROSHOW. It is in my—— 

Mr. MURPHY. Yes, I appreciate that. I was a State Senator at the 

time and that is why I was saying that point before. 

Ms. DOROSHOW. You should take a look at that study. 

Mr. MURPHY. If they count the number of physicians available in 

Pennsylvania, look at all licenses and that is a distorted statistic. 

I just want information, the truth, and it is—but I appreciate and 

Mr. Wolfman if you could get me those studies I would really be 

grateful. Thank you. I yield back. 

Mr. PITTS. Chair thanks the gentleman and now recognizes the 

Ranking Member Emeritus, Distinguished Gentleman from Michigan, Mr. Dingell for 5 minutes for questions. 

Mr. DINGELL. Mr. Chairman, I thank you for your courtesy. Professor Wolfman, you described in your testimony the sad story of 

257 

Diana Levine who lost her arm as a result of an inadequate labeled 

drug. Here is a case of noneconomic damages and it is—we find it 

quite overwhelming. The lady in question was a musician by trade. 

Without her arm it is doubtful she will ever be able to return to 

her profession. She found as you indicated a small town Vermont 

lawyer who took the manufacturer all the way to the Supreme 

Court. In fact, I was one of those who joined a number of my colleagues in signing an amicus curiae Brief in support of the Levine 

case. I find it haunting as her lawyer hesitatingly admitted that 

her case might never have brought to court had a $250,000 noneconomic damages cap been in place. Obviously it isn’t every day 

that cases are taken all the way to the Supreme Court, and I hope 

it isn’t every day that people suffer the kind of loss that she suffered. 

Now, Professor Wolfman, can you provide some other examples 

of the types of cases that you have seen dealing with FDA approved drugs and medical devices? 

Mr. WOLFMAN. Yes, I can, Representative Dingell, and what I 

would like to do is if I could direct your attention to my testimony 

and I will just—I know the time is short, so but beginning at page 

12 of my testimony I talk about a number of other examples and 

one that I think is similar to the problem of Ms. Levine is the case 

of Karen Bartlett. She took an anti-inflammatory drug and these 

were in the same family of drugs as cause terrible problems and 

were taken off the market, the NSAID drugs. She ended up having 

all these complications including blindness. I think it is just awful 

and it is described in some detail, page 14 of my testimony. But 

the defense put up by the company was—required 50 pretrial motions, 50 motions during trial. She had to hire four expert witnesses, a pharmacologist, a burn surgeon, economist, a life care 

planner and then there was another 50 post trial motions after the 

verdict came in. Now, no rational lawyer could take that case given 

the enormous amount of noneconomic damages. 

Mr. DINGELL. First off the preparing of the Briefs and the appearing of the filing of the papers and paying witness fees and a 

wide array of other things, the cost of that had to be astronomical. 

Mr. WOLFMAN. Right. And so—and yes she got a significant noneconomic damage award, $16 million, but she is going to live blind 

her whole life. But the point is is that no rational lawyer knew the 

result going in, no rational lawyer would take that meritorious case 

if the limit was $250,000. It is very—it is much easier to attack 

these kind of awards after the fact and that is the economic problem, the economic problem in looking at it from an after the fact 

perspective. 

Mr. DINGELL. Thank you very much. Now, Dr. Kachalia, you 

work as a physician at Brigham and Women’s Hospital and Harvard Medical School. I am interested in your perspective on this 

legislation. Does capping of liability of pharmaceutical companies 

protect physicians from lawsuits? 

Mr. KACHALIA. So, the question is in regard to how I feel about 

the capping with the? 

Mr. DINGELL. Yes, does it—does capping of the liability protect 

you from lawsuits? Yes or no. 

258 

Mr. KACHALIA. Well, if you look at the data here, it seems that 

the capping liability does not seem to lower the number of claims, 

so it may not protect us from lawsuits. 

Mr. DINGELL. Just—I have limited time. Yes or no? 

Mr. KACHALIA. No. 

Mr. DINGELL. All right, it seems that making drug companies 

less responsible would not help doctors. With—is it your opinion 

that this would interfere with your deciding what medication is 

best for your patient? Yes or no? 

Mr. KACHALIA. Is my question what—I am sorry. Could you repeat the question one more time? 

Mr. DINGELL. Well, it may-it is my view that capping of these 

risks may actually encourage drug companies to withhold safety 

data that you could use to best determine what medication is necessary for your patient. Is that a correct assumption on my part or 

not? 

Mr. KACHALIA. I mean it is a possibility any time you cap a company’s liability. 

Mr. DINGELL. Thank you. Thank you. Now, well, thank you. I notice my time is up. Thank you, Mr. Chairman. 

Mr. PITTS. Chair thanks gentleman. The chair will now recognize 

the Vice-Chair of the Full Committee, gentlewoman from North 

Carolina Mrs. Myrick for 5 minutes. 

Mrs. MYRICK. Thank you, Mr. Chairman. I would like to ask a 

question to Doctors Tippett and Hollier. Is that correct? Can you 

speak to the savings to the overall system that would result if a 

national medical liability law like H.R. 5 went into effect? And I 

ask that because there have been estimates that defensive medicine costs our Nation up to 200 billion a year. And according to the 

Congressional Budget Office’s recent publication Reducing the Deficit Spending and Revenue Options, comprehensive medical liability reform would reduce the budget deficit by $62 billion over 10 

years. Dr. Tippett, you want to? 

Mr. TIPPETT. Well, I think that—I think that figure tells us that 

it is difficult to quantitate the exact amount. And I can only speak 

to my own personal knowledge. I see it happen every day in which 

tests are ordered that as I said earlier if given proper time if you 

weren’t forced to do so because of your fears that someday if you 

didn’t think of every possible diagnosis you wouldn’t have ordered 

that test. But maybe I see patients all the time that I am trying 

to operate on and they have to have a cardiology clearance when 

everybody knows they don’t really need a cardiology clearance but 

it is because of some mild thing, an EKG. I mean, you could go on 

and on. There is a huge cost and I see every day that increases the 

cost to you and me and to everyone else who tries to pay but because of a fear of being sued. 

Mrs. MYRICK. Dr. Hollier? 

Ms. HOLLIER. Representative Myrick, I think H.R. 5 would 

produce important cost savings. What we have seen in Texas after 

the passage of liability reform is that a number of healthcare systems had had significant liability savings and they have reinvested 

those savings in new technology, in patient care, and in patient 

safety initiatives. 

259 

Mrs. MYRICK. Do you think the current medical professional liability system makes you a better or a safer doctor by acting as an 

incentive to practice good medicine? Both of you again. 

Mr. TIPPETT. Shall I go first? Well, I think the perfect example 

and I have heard over and over today how if you get—have these 

lawsuits then it is going to get rid of the bad doctors in the system. 

And I think about a pole that we just did among the leaders of neurosurgery in the United States. One hundred of our best cream of 

the cream leadership in neurosurgery almost all of them academics, 25 percent had been sued between four and seven times for 

liability. Twenty-five percent—does that mean we need to get rid 

of all of those 25 percent? Are they bad doctors? Well, obviously 

not. They handle the complex cases. They take care of the most difficult patients. It is absurd. 

Mrs. MYRICK. Yes, that is a challenge in our community, too with 

our neurosurgeons in particular when—because it is a large hospital that does handle very complicated cases and not just—I mean, 

nothing is run of the mill when it comes to your brain and neurology et cetera, but it is a real concern. And we are seeing people 

who are—some of my friends who are in their late, maybe mid-50s 

and they are telling me over and over again both in OB–GYN and 

neurology or neurosurgeons that they are going to retire and we 

are losing—we stand a really strong shot of losing some really good 

top notch doctors. And doesn’t mean that others will take their 

place, but they are telling me that the younger people aren’t coming into their professions. And so there is this you know, what are 

we going to do to service the population? And that really is where 

I am coming from when I talk about is there a way to bring this 

under control so we don’t have some of the so called defensive medicine. I appreciate your time and being here today. Thank you all. 

And I yield back. 

Mr. PITTS. Chair thanks—— 

Mr. BURGESS. Will you yield? 

Mr. PITTS. Go ahead. 

Mrs. MYRICK. Yes. 

Mr. BURGESS. I thank the gentlelady for yielding. Ms. Doroshow, 

I need to ask you a question about your testimony about McAllen, 

Texas. I am aware of Dr. Gandhi’s article. I don’t know if you are 

aware and I apologize for not having it here, but he has written 

a subsequent article where he questions some of his own conclusions on that. But because of the article that Dr. Gandhi wrote a 

couple of years ago I went to McAllen, Texas, and visited with the 

doctors down there. The question before me was are doctors in 

McAllen, Texas over utilizing in order to overbill Medicare? And I 

think what Dr. Gandhi thought—found in his subsequent relook 

was that it is the publicly financed systems of medical care, Medicare, Medicaid, SCHIP which seem to be prone to this type of difficulty. You rarely see Aetna, Cigna, and United sending wheelchairs to patients who don’t need them. So something about the 

precertification process was helpful there. But the other thing and 

the reason that medical liability reform was important in the equation was nobody practiced in McAllen prior to 2003. The reason 

there are so many urological procedures done now in McAllen is 

they hadn’t had a urologist for over a decade. There was a lot of 

260 

pathology that had gone undiagnosed and untreated. So it is not 

just a simple equation as these sometimes draw. The President I 

know ahs made a big deal of this that Texas proves that medical 

liability reform does not bring down costs. I would say those two 

statements are true, true, and unrelated. McAllen is a different location because of some of the problems that were brought because 

of medical liability. Thank you, Mr. Chairman. I will yield back. 

Mr. PITTS. Chair thanks the gentleman and recognizes the gentleman from Kentucky, Mr. Whitfield, for 5 minutes for questions. 

Mr. WHITFIELD. Thank you, Mr. Chairman. I want to thank the 

witnesses for being here today. We appreciate your taking time to 

discuss this with us. Since I was not here, maybe you have already 

covered this and if you have that will be fine, but it is my understanding that many medical students when they are looking for 

their specialty that one of the considerations that they look at is 

liability. And we know that a large percentage of OB–GYN physicians are sued. We know that neurosurgeons are sued and Dr. 

Hollier, you responded to that. Would you agree that that is an 

issue with—I mean, what I am concerned about we may be getting 

in some specialty areas that may have a shortage in the future perhaps. 

Ms. HOLLIER. It is an important concern. I have been counseling 

medical students in conjunction with UT Houston Medical School 

for a number of years both before and after the liability reforms in 

Texas. Before the reforms, one issue that always came up in speaking with medical students was their concern about entering the 

field of obstetrics because of the medical liability. They were seeing 

practicing OB–GYNs having to close their offices and stop practicing obstetrics at very young ages and that is not a future that 

they wanted. 

After the medical liability reforms, my counseling sessions are 

very different and medical students have a renewed interest in our 

specialty preserving the healthcare limit for the future. 

Mr. WHITFIELD. Dr. Burgess, I would be happy to yield additional 

time if you would like it. 

Mr. BURGESS. And I thank the gentleman for yielding. Dr. 

Tippett, you were starting to talk about patient safety a moment 

ago and how the impact of medical liability reform may in fact advance the cause of patient safety and just like you, I mean, I can 

recall multiple anecdotes from the past. But one of the most striking for me was my very first year in Congress. I wasn’t on the 

Health Subcommittee of Energy and Commerce, I was on the 

Transportation Committee, because that is where doctors go when 

they come to Congress. And the chairman at that time was a gentleman from Alaska and one afternoon I found myself in Nome, 

Alaska, with the chairman and he had sort of a Chamber of Commerce luncheon. I was seated at a table of doctors and they were 

all excited about the fact that we might pass medical liability reform in Washington. And I said, so is it a problem here? They said 

it is an enormous problem. So I asked the gentleman sitting next 

to me what type of medicine do you practice? He said well, just like 

you I am an OB–GYN. And he said we can’t get an anesthesiologist 

up here because of the problems with medical liability. I said wait 

a minute, Bubba, you can’t practice OB–GYN without an anestheVerDate Aug 31 2005 11:33 Apr 10, 2013 Jkt 037690 PO 00000 Frm 00264 Fmt 6633 Sfmt 6633 F:\112-03~1\112-33~1 WAYNE
261 

siologist. What—forget an epidural in labor—what do you do if you 

have to do a C-section? He said we have to get them on an air ambulance and get them to Anchorage. I mean, that is 400 miles 

away, and this was in the middle of the summer and some of the 

worst weather I had ever seen in my life. I got to believe it is worse 

in the winter. How is patient safety advanced by putting a mother 

on an air ambulance to Anchorage, Alaska, from Nome? I mean, 

that is the sort of thing we are talking about. Is that not correct? 

Mr. TIPPETT. Yes, sir, it certainly is. And you can go on from 

there. The trauma system in our country is so dependent on immediate, immediate availability of the critical specialties. You have 

seen that in your own body here in the last few months of what 

happens when you have the immediate availability of a neurosurgeon and others to take care of something like a head injury or 

a gunshot wound. If that goes away then you lose all of this. I applaud my dermatology colleagues but they really can’t take care of 

a blunt gunshot wound to the brain when it comes in. And when 

we have medical students who are purely interested in going to 

dermatology now it really worries me. And when you have neurosurgeons who 68 percent of them are not doing Pediatric neurosurgery anymore it is not because they don’t want to. It is because 

of the long problems that you have with statute of limitations and 

other things with taking care of child. It is a travesty. 

Mr. BURGESS. Yes, sir, and you know in Texas right before we 

passed the reforms in 2003, the Dallas-Fort Worth area lost one of 

its two neurosurgeons because of the renewal for their liability premium. It was well into six figures. It was a fantastic amount of 

money. He said I can’t do it. I am not. I am going to go work, get 

an academic medical center somewhere. We had one neurosurgeon. 

It put the entire trauma system of the Dallas-Fort Worth 

Metroplex at risk because one guy cannot cover an area of four million people 24 hours a day, seven days a week. And we were at risk 

of losing our trauma designation. So it—I mean, these are real 

world—patient safety isn’t going to be advanced if that happens. Is 

that correct? 

Mr. TIPPETT. That is absolutely correct. I can cite—I mean half 

the neurosurgeons in South Florida for example can’t afford to 

have liability insurance. As we said here today they are having to 

self insure. And I talk to neurosurgeon after neurosurgeon. A 

young one goes down to Miami to practice and says I just can’t take 

the emotional stress of not having liability. I mean you can imagine 

with the hatchet hanging over your head every day you just can’t 

take it. And you could go on and on around the country. We are 

at great risk not only of having young people not go into the various specialties, but also having them limit their practice after they 

do. We have a big problem in neurosurgery now with neurosurgeons saying I am just going to become a spine surgeon. I am 

not going to take care of cranial problems. And it is purely because 

of this and other issues which we are talking about something to 

try to do something to correct that right now. 

I keep hearing all of this about we don’t have any evidence and 

I keep—I am a country neurosurgeon, but it looks to me like 35 

years of experience in California is a pretty good example of how 

things work. And I haven’t really seen a lot patient people leave 

262 

California because they didn’t get $250,000 cap. And I also haven’t 

seen plaintiffs’ attorneys go away in California in the last 35 years. 

They all seem to be doing pretty well. 

Mr. PITTS. The gentleman’s time is expired. Chair recognizes 

gentleman from New Jersey, Mr. Lance for 5 minutes. 

Mr. LANCE. Thank you very much. Let me just say that in New 

Jersey we really do not have medical malpractice insurance reform 

the way it exists in States like California and Texas. And we have 

among the highest health insurance costs in the nation. In some 

surveys we are really at the top which is of course extremely expensive for everyone—our residents and the business community. 

And this is an issue of great importance and I support what we are 

trying to do here. And I know that Dr. Burgess has other questions 

and Mr. Chairman, I would ask that my term-time be given to Dr. 

Burgess. 

Mr. BURGESS. I thank the gentleman for yielding. Mr. Wolfman, 

you cite some rather dramatic examples in your testimony. I got to 

tell you administration of Phenergan entering a course of a therapeutic event is something I saw I don’t know how many tens of 

thousands of times during my professional career. True enough 

there can be a rare but severe reaction which is what you mentioned in your papers. Stephens-Johnsons syndrome, a fixed drug 

eruption doesn’t happen very often. When it does it is so dramatic 

you will never forget it. Is it possible to construct a system to help 

people who are harmed by the extremely rare outliers and not punish everyone else along the way? 

Mr. WOLFMAN. I don’t know the answer to, you know, everything 

that you might do to construct a person—perfect health care system with a perfect set of incentives, but let me just say this. Going 

back to the Phenergan issue, no question Phenergan is used, you 

know frequently. It was the method of administration that wasn’t 

warned against. The company had evidence—— 

Mr. BURGESS. But to be fair there and we have another OB–GYN 

on the panel. I mean, I cannot tell you how many times I ordered 

the administration of Demerol and Phenergan intravenously for 

someone who was in pain. 

Mr. WOLFMAN. Well, the FDA says it is not a good idea and the— 

one of the competitors of Wyeth said it was not—shouldn’t be done, 

either. But I—the point is, is that these cases—I tried to be fair 

in my testimony. I put out five examples. You could use many others. Two of them went to defendants’ verdicts. You know, the point 

was that these were all cases that were, you know, reasonable 

cases to the ball—all cases in the ballpark. None of those cases 

would have been brought if there was a $250,000 cap. 

Mr. BURGESS. But it was reasonable not to bring a case, but 

these are cases that represented the extremes of incidents in medical practice. 

Mr. WOLFMAN. Right. 

Mr. BURGESS. Should we be legislating to the extreme? Is that 

the type of—is that the type of system that will yield the best, most 

cost effective result? 

Mr. WOLFMAN. Well, I think the—again there is two questions 

there. One is, are you creating the proper incentives for the physicians? Also are you properly compensating the victim of the probVerDate Aug 31 2005 11:33 Apr 10, 2013 Jkt 037690 PO 00000 Frm 00266 Fmt 6633 Sfmt 6633 F:\112-03~1\112-33~1 WAYNE
263 

lem? I don’t agree and we could be here all day saying that these 

were extreme situations. I think in these instances, for instance in 

Ms. Levine’s situation you had a potentially very, very serious side 

effect that was greatly augmented by the way it was administered 

and she came into the hospital with a headache. So the risk benefit 

wasn’t appropriately calculated in that situation because the company failed to warn about the method of administration. 

Mr. BURGESS. Let me just interrupt you a second to Hollier—do 

you still give Demerol and Phenergan to women in labor? 

Ms. HOLLIER. Yes, sir. 

Mr. BURGESS. And is it sometimes administered through an IV? 

Ms. HOLLIER. Yes, sir. 

Mr. BURGESS. OK. I just wanted to make sure I hadn’t 

missed—— 

Mr. WOLFMAN. No, no, no—— 

Mr. BURGESS. Shouldn’t—hadn’t missed something in the last 8 

years. 

Mr. WOLFMAN. No—— 

Mr. BURGESS. I appreciate the continuing of this case and I am 

going to mark that down as one of my—— 

Mr. WOLFMAN. With all respect, that—with all respect, that was 

the problem. Ms. Levine didn’t get it through an IV. The testimony 

was clear even from the defendant’s witnesses that if it had been 

administered through IV it was virtually certain that she would 

not have been harmed. 

Mr. BURGESS. Let me ask you a question because you seem to 

have a beef with the Food and Drug Administration. And I will just 

tell you right now we are up against a significant problem in this 

country. The Food and Drug Administration has gotten so risk adverse that virtually nothing can get through. We heard from medical device manufacturers here in one of our other subcommittees 

the other day. There is an enormous amount of human suffering 

and the potential for curing disease that is essentially being left on 

the shelf in the pipeline going to other countries. Some panel—we 

have to work together to find a way to stop this top-heavy, topdown, centralized punitive activity that is going on at the Food and 

Drug Administration. And unfortunately from some of the testimony you provide us here today I don’t see us moving in that direction. We have got to work past this. These are not people who are 

bringing devices to the market that want to harm someone. These 

are not companies that are developing spending millions of dollars 

on developing new medications to harm someone. They are trying 

to alleviate human suffering and cure problems and prevent problems, and we have made the landscape almost unnavigable for particularly the small device manufacturers. But I will speak with the 

pharmaceutical industry. And thank you, Mr. Chairman. I will 

yield back. 

Mr. PITTS. Gentleman’s time is expired. This has been an excellent panel. In conclusion I would like to thank all of the witnesses 

and the Members that participated in today’s hearing. And I remind Members that they have 10 business days to submit questions for the record. Members should submit their questions by the 

close of business on April 20, and I ask that the witnesses all agree 

264 

to respond promptly to these questions. Thank you again for the 

excellent testimony, and this subcommittee is now adjourned. 

[Whereupon, at 11:52 a.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

265 


71612.204
266 


71612.205
267 


71612.206
268 


71612.207
269 


71612.208
270 


71612.209
271 


71612.210
272 


71612.211
273 


71612.212
274 


71612.213
275 


71612.214
276 


71612.215
277 


71612.216
278 


71612.217
279 


71612.218
280 


71612.219
281 


71612.220
282 


71612.221
283 


71612.222
284 


71612.223
285 


71612.224
286 


71612.225
287 


71612.226
288 


71612.227
289 


71612.228
290 


71612.229
291 


71612.230
292 


71612.231
293 


71612.232
294 


71612.233
295 


71612.234
296 


71612.235
297 


71612.236
298 


71612.237
299 


71612.238
300 


71612.239
301 


71612.240
302 


71612.241
303 


71612.242
304 


71612.243
305 


71612.244
306 

Æ 


71612.245