S5784 CONGRESSIONAL RECORD — SENATE April 27, 1995

Thank you, Mr. President.

I yield the floor.

Mr. GORTON addressed the Chair.

The PRESIDING OFFICER. The Senator from Washington.

Mr. GORTON. Mr. President, I should

like to say how much I appreciate the

thoughtful presentation of my colleague, usually seatmate, the chairman

of the Labor Committee, on which I

serve, the Senator from Kansas, in this

connection. She has felt the necessity

of moderate, not extreme, reforms in

medical malpractice legislation for

many years. And she now, I believe,

has had the first opportunity ever to

discuss legislation of that sort on the

floor of the U.S. Senate. I strongly suspect it may not be the last such time,

but it at least marks a thoughtful and

balanced beginning presentation of a

serious challenge to our entire health

care system.

Mrs. KASSEBAUM. Mr. President, I

thank the Senator from Washington.

Senator GORTON has provided, I believe, a very important vehicle in his

product liability legislation to which

we are wanting to add this amendment

and want to do so in a constructive

way that will be an addition to the

product liability bill before us.

I know that Senator MCCONNELL,

Senator LIEBERMAN, and myself want

to do all that we can to be supportive

of the product liability bill and we

want to work to make any changes in

the medical liability reform amendment that would fit with the broader

product liability bill. To that end, I

think, as the Senator from Washington

knows, we will do all we can to be helpful.

Thank you, Mr. President.

I yield the floor.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. KOHL. Mr. President, I ask unanimous consent that the order for the

quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. KOHL. Thank you, Mr. President. I rise today as a supporter of

product liability reform to discuss an

important issue which this reform effort has so far failed to address and I

believe should be addressed.

The problem is excessive court secrecy. Far too often the court system

allows vital information that is discovered in product liability litigation and

which directly bears on public health

and safety to be covered up, to be

shielded from families whose lives are

potentially at stake and from the public officials that we have appointed to

protect our health and safety. All this

happens because of the so-called protective orders, which are really gag orders, issued by courts and which are designed to keep information discovered

in the course of litigation secret and

undisclosed.

Typically, injured victims agree to a

defendant’s request to keep lawsuit information secret. They agree because

defendants threaten that without secrecy, they will refuse to pay a settlement. Victims cannot afford to take

such chances, and while courts in these

situations actually have the legal authority to deny requests for secrecy,

typically they do not, because both

sides have agreed and judges have

other matters that they prefer to attend to.

So, Mr. President, secrecy has become the rule in civil litigation, even

though it causes harm and suffering to

millions of other Americans. For example, 1 million women who received silicon breast implants in the 1980’s were

denied crucial information demonstrating the hazards of implants. The information was uncovered in a 1984 lawsuit, but it was kept secret by a court

order until 1992. So what do we say to

these women? How do we, as a civilized

society, justify the secrecy orders that

prevented them from making informed

choices about what they were putting

into their bodies?

What do we say to the scores of

young children injured while playing

on defective merry-go-rounds that remained on the market for over a decade because many lawsuit settlements

concerning this sickening product were

kept secret from the public and from

the Consumer Product Safety Commission. These children, most of them

under 6 years of age, lost their fingers,

their hands, and feet.

Another case involves Fred Barbee, a

Wisconsin resident whose wife, Carol,

died because of a defective heart valve.

We learned in a Judiciary Committee

hearing more than 4 years ago from

Mr. Barbee that months and years before his wife died, the valve manufacturer had quietly, and without public

knowledge, settled dozens of lawsuits

in which the valve defects were clearly

demonstrated.

So when Mrs. Barbee’s valve malfunctioned, she rushed to a health clinic in Spooner, WI, thinking, as did her

doctors, that she was suffering from a

heart attack. As a result of this misdiagnosis, Mrs. Barbee was treated incorrectly, and she died.

To this day, Mr. Barbee believes that

but for the secret settlement of heart

valve lawsuits, he and his wife would

have been aware of the valve defect and

his wife would be alive today.

As a last example, Mr. President, let

me tell you about a family which we

must call the Does because they are

under a secrecy order and afraid to use

their own names when talking to us.

The Does were the victims of a tragic

medical malpractice that resulted in

serious brain damage to their child. A

friend of the Does is using the same

doctor, but Mrs. Doe is terrified of saying anything to her friend for fear of

violating the secrecy order that governs her lawsuit settlement. Mrs. Doe

is afraid that if she talks, the defendant in her case will suspend the ongoing settlement payments that allow

her to care for her injured child.

What sort of court system prohibits a

woman from telling her friend that her

child might be in danger? Mr. President, the more disturbing question is

this: What other secrets are currently

held under lock and key which could be

saving lives if they were made public?

Last year, during debate on the product liability bill, we began a discussion

about court secrecy reform, and we

should continue that discussion today.

I favor a simple change in the system

that would not prohibit secrecy but

merely send a signal to judges to more

carefully consider the public interest

before drawing the veil of confidentiality over crucial information.

That change would work as follows:

In cases affecting public health and

safety, courts would apply a balancing

test. They could permit secrecy only if

the need for privacy outweighs the

public’s need to know about potential

health or safety hazards. This change

in the law would ensure that courts do

not carelessly and automatically sanction secrecy when the health and safety of the American public is at stake.

At the same time, it would still allow

defendants to obtain secrecy orders

when the need for privacy is significant

and substantial. The court secrecy reform I have suggested is not

antibusiness. Business people want to

know about dangerous and defective

products, and they want regulatory

agencies to have the information necessary to protect the public.

And so in summary, Mr. President,

the product liability bill that we are

debating today is all about striking a

better, more reasonable balance between plaintiffs and defendants in

product liability lawsuits. The change

that I propose in our court secrecy

laws is also about striking a better balance in product liability lawsuits, a

better balance between the private parties involved in litigation and the millions of American consumers who

today are being kept in the dark in

many cases because of court secrecy.

I hope my colleagues who support

product liability reform will recognize

the need to deal with this very serious

issue. Reform, after all, is a two-way

street. I thank the Chair and I suggest

the absence of a quorum.

The PRESIDING OFFICER (Mr.

GREGG). The clerk will call the roll?

The assistant legislative clerk proceeded to call the roll.

Mr. KOHL. Mr. President, I ask unanimous consent that the order for the

quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. KOHL. Mr. President, I ask unanPRIVILEGE OF THE FLOOR

fimous consent that my Judiciary Committee law clerk, Julie Selsberg, be

given floor privileges during the debate

on the product liability legislation.
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5785

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. KOHL. I suggest the absence of a

quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. BURNS. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. BURNS. Mr. President, I rise this

afternoon in support of the McConnell

amendment to the Product Liability

Reform Act that is now being considered before this body. If there was one

thing that was made clear last year

during the health care debate, it was a

need for medical malpractice reform,

not just to curb the need for defensive

medicine—and some still argue about

the extent to which that contributes to

our rising costs in medical care—but to

get a handle on this incredible amount

of litigation our society now seems to

take part in.

In Montana I have talked with several of our rural doctors who, through

no fault of their own, have outrageous

malpractice premiums. I recently had a

primary care doctor in my office who

pays $38,000 a year in premiums. To

those folks who practice in more urban

areas and have extended practices,

$38,000 might not sound like much. But

it is a big ticket in a rural State. To

top that off, he is yet to be sued. But,

yet, to protect himself, he cannot avoid

paying this premium. Of course, we

know who pays for that—the people

who use his services. On top of this

cost of practice, he has overhead expenses, too. It is no wonder the cost of

services and fees continues to go up. In

fact, I was astounded to find out the

other day from a group of doctors what

an office call would cost if it were not

for a lot of extenuating rules, regulations, insurance, and, yes, Government

regulations in their life, and how that

increases just the price of an office

call.

The McConnell amendment is a perfect fit on this product liability reform

bill. I am glad to see the House has included it and that this body is considering it now. The product in this case

is health care services. I am not trying

to say that people do not deserve malpractice awards. As in any business,

people are fallible, judgment is not always true, and accidents do happen. I

think we tend to hold health care providers to a higher standard because

much of the time they hold our lives in

their hands.

But malpractice claims are made

more often than necessary. Of the billions of dollars spent on medical liability, 50 cents of every premium dollar

goes to the attorneys and not to the injured patients that this system was

meant to help. If our goal is to direct

health care dollars into the legal system for the attorney fees and court

costs, then we should not enact liability reform. However, if the patient is

our priority, and if quality of care is

important to us, then this provision is

essential.

One area that I am very interested in

is the contingency reform provisions in

this amendment. This provision will

help to address some of the sizable

costs in the system by limiting an attorney’s contingency fee to 331⁄3 percent for the first $150,000 and 25 percent

of any amount over $150,000. The real

travesty of justice here is the amount

of the health care liability award that

goes to the attorneys. The contingency

fee was intended to be the poor man’s

key to the courthouse. According to

the evidence from a 1990 Harvard medical malpractice study in New York, the

contingency fee is not serving this

function very well.

Most folks with small health care injury claims never get access to the

civil justice system because the contingency fee stimulates lawyers to be primarily interested in the big ticket

cases. It is the same incentive that

drives the lawsuit lottery, encouraging

lawyers to take cases with a sympathetic plaintiff even if there is no negligent care. In many States, the contingency fee is growing. Though traditionally the norm is one-third of the

plaintiff’s payment, the standard is

growing to 40 percent and, yes, 50 percent contingency fees are becoming

more and more common. This fee covers only the attorney’s professional fee.

Litigation expenses are deducted separately from the plaintiff’s recovery and

they, too, can be quite high.

I am proud to say that the Montana

Legislature has just passed legislation

to cap the fee and reform our medical

liability system, the Montana State

Legislature that just adjourned prior

to the Easter break. I take my lead

from my constituents. I always have

and I always will. But I also keep a

pulse on what is going on around the

Nation.

In a recent public opinion strategist

poll linking people to groups that represent America’s values, I tell you

what, attorneys, kind of with us, are

running pretty low. But for the sure

reason for that, maybe we should examine the system. Incidentally, doctors were near the top of the poll.

So I urge my colleagues to support

the McConnell-Kassebaum amendment.

After all, it was just a couple of years

ago that Senator KASSEBAUM worked

on a medical plan, and this was included in her plan then so this is not a

new idea. It is an idea that has been accepted by the American people and it is

an idea whose time has come. These

two amendments together will meet

the needs of the injured patients who

deserve to be fairly compensated and

society which needs to reduce transaction costs and eliminate windfall

judgments. But above all, it will allow

us to continue to promote the highest

quality medical care for our people,

our consumers in this country, and

maintain that high quality for years to

come. It is very important that this be

a part of this package whenever we go

to conference and when it becomes law.

Mr. President, I yield the floor.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. KENNEDY. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. KENNEDY. Mr. President, I wish

to review for the Members where we

are this afternoon on the malpractice

insurance proposal offered by Senator

MCCONNELL, and now added to by Senator KASSEBAUM.

Process is really not always important, but the Senate has a process to

ensure adequate consideration to measures such as these. We will have a

chance to revisit the substance of some

of these measures during the course of

consideration of the McConnell amendment. But since I referred earlier to

the actions of our committee, I wanted

to at least give the Senate an idea of

what we have been doing, and what the

result of our deliberations has been.

The amendment described by the

Senator from Kentucky is not the

product of consideration by the Labor

and Human Resources Committee.

That committee, under the chairmanship of Senator KASSEBAUM, spent a

full day this week and half a day earlier this month debating a bill virtually identical to the amendment

Senator MCCONNELL has offered today.

Members heard each other’s arguments, compared their experiences in

their own States, and worked in a collegial and good-faith fashion to craft a

better bill.

Three very important amendments

were adopted. First, there was an

amendment offered by Senator DODD

that removed the cap on punitive damages, providing a more structured process by which the jury determines

whether the punitive damages are warranted and the judge sets the amount.

Now, I just want to mention that punitive damages in malpractice cases

are extremely rare. However, of those

cases that do merit punitive damages,

68 percent involve sexual abuse of patients by the medical profession. So in

addition to a very high standard that

was established in the McConnell bill,

there is also a cap on the punitive damages. They establish a very high standard, but make it virtually impossible

to reach that very high standard.

In the consideration of this bill by

the committee, we talked about the

egregious nature of sexual abuse in a

medical setting, cases in which a

woman is anesthetized and then

abused, for instance. We thought, even

if you are going to have a cap on punitive damages, those circumstances are

so outrageous that we should allow an

exemption—if women are able to reach

the burden of proof established in the
S5786 CONGRESSIONAL RECORD — SENATE April 27, 1995

legislation, there should be the ability

to go above the cap in the McConnell

amendment. This was virtually unanimously supported by the members of

the committee. This is a matter of

great interest to the women of this

country; not just those who have been

involved in cases with punitive damages, but as a message to all that this

is an issue so reprehensible it is going

to receive the attention of the Congress of the United States.

Now, that is out. That is out in the

McConnell amendment.

We had a good deal of consideration.

We had evidence not only of that kind

of activity, we also had evidence where

we had doctors who are practicing medicine and committing negligence when

they are under drugs and also under alcohol. We wanted to have that as an

exemption of punitive damages. No,

that was rejected and it is rejected in

the McConnell amendment.

We wanted to also lift from punitive

damages those circumstances where

doctors have their license suspended

and still go ahead and perform operations. That was not considered during

the course of the discussion and debate.

But we did accept the particular circumstances where punitive damages in

malpractice, that there was going to be

a recognition that in those cases that

are so heinous with regard to taking

advantage of women, that that was

going to be addressed.

We had a second provision on the

issue of damages and that was offered

by our friend and colleague, the Senator from Connecticut, that was accepted. That provided that the jury

would make the determination as to

whether there should be the punitive

damages and the judge would make the

judgment to set the amount and there

would be a criteria as to how that

amount would be reached. That was accepted by the committee after good debate and discussion about reviewing

what had happened in the States.

I was interested to hear my friend

and colleague from Montana say,

‘‘Well, Montana has just adopted a

good program on the issue of malpractice.’’

Well, he might as well kiss that goodbye, because we are going to preempt

that under the McConnell amendment.

I am not sure that everyone understands in this body, when I listen to my

colleague say we adopted a program

out in Montana and it is on the books

now and, thank God, we are going to

have a bill that is going to reach the

needs of the people of program. Well, I

am telling you this program is probably going to preempt it in some form

or shape and that will be true about

Wyoming and Montana and other

States.

But, nevertheless, we brought about

some changes with the Dodd amendment on the punitive damages.

And then we had the Abraham

amendment that permitted the States

to opt out of any and all reforms in

this bill. I would have preferred a

broader form of nonpreemption language, but the committee debated the

matter at length and, with great

thoughtfulness, it was the will of the

committee that the preemption should

be addressed through the mechanism of

the Abraham language. And that was

after a lot of discussion and debate and

a lot of give and take on it. But, effectively, that consideration and those

hours of discussion and debate are by

the board, and that is gone.

Now 2 days have passed since the

markup of the committee. No report

has been filed explaining what is either

in this bill or reported out of our committee’s bill. At least you should have

a report of what came out of the committee and then you could explain how

that is different in the McConnell

amendment. But we have not even

waited for that report.

And the text of the bill itself, as

amended in the committee, is not even

publicly available in typeset for the

members of the committee; not even

available. And so we are acting on the

basis of the explanation of the comments of the Senator from Kentucky

and others about the legislation itself.

And now the Senator from Kentucky

offers the amendment that basically

ignores the work of the committee.

That is his right. But it should give

some Members pause. Either the committee process is to be respected as a

way to improve or refine the legislation or it is a joke. The language of the

McConnell amendment has been rejected, much of it, by the Labor and

Human Resources Committee. We considered it and decided it should be reported without taking into consideration the Dodd and the Abraham

amendment.

So I hope the Members will recognize

the circumvention of the committees

process. He has the right to do so. But

it does disregard the orderly and important consideration of complex and

far-reaching legislation.

But it is interesting, Mr. President,

that during the course of the consideration of the amendment in the committee, the whole question about how

we should deal with the professional liability premiums for obstetricians and

gynecologists was considered by the

committee as well. That is in the

Thomas amendment.

And I refer now to an article by the

American Medical News that is right

on point of the Thomas amendment.

I ask unanimous consent that the

text of the article be printed in the

RECORD.

There being no objection, the article

was ordered to be printed in the

RECORD, as follows:

[From American Medical News, Feb. 22, 1993]

QUALITY ASSURANCE PRENATAL SYSTEMS

REDUCE RISK FOR OBS

(By Greg Borzo)

Professional liability premiums for some

obstetrician-gynecologists have fallen dramatically in recent years because of greater

physician participation in risk management,

quality assurance and documentation of

care.

Patient flow charts, checklists, practice

guidelines and comprehensive office-wide

management systems have played a big part

in the drop, even though many physicians regard such tools as cookbook medicine.

‘‘Because obstetrics is a high-risk area, we

and other insurance companies have concentrated our efforts on it,’’ said Julie

Pofahl, director of risk management, Physicians Insurance Co. of Wisconsin (PIC–W),

‘‘Physicians are improving the quality of

care and their record-keeping in a variety of

ways, and as a result, we have seen lower frequency and severity of claims.’’

Their work is paying off. Over the last four

years, premiums charged by physician-owned

insurance companies have fallen more for obstetrician-gynecologists than for any other

specialists, according to the Medical Liability Monitor, an independent newsletter. In

1992, half the companies did not change their

premiums, while 35% reduced them an average of 8.3%. In 1989, ob-gyns insured by commercial and physician-owned companies saw

rates cut an average of 14.5%; in 1990, 16.3%,

and 1991, 10.9%.

One risk management and quality assurance plan, Prenatal Care, appears to be so

successful in reducing obstetrics claims that

at least three insurance companies are providing it free to any physician they insure,

even though it costs more than $500 per system and about $5.40 per patient for materials. Two of them, Colorado Physicians Insurance Co. (COPIC) and Physicians Insurance Co. of Ohio (PICO), also offer a 15% premium rebate to physicians using the system.

Prenatal Care, a comprehensive, integrated system marketed by Advanced Medical Systems in Tulsa, Okla., includes a detailed patient questionnaire and a flow sheet

to monitor a pregnancy and remind physicians to perform critical tests. It also includes physician and staff training materials

and extensive patient educational handouts.

A 50-form introductory unit costs $395, an

instructional videotape $95 and quarterly updates run $99 a year.

COPIC began promoting the system about

six years ago, and it appears to have contributed significantly to falling liability rates

for obstetricians in Colorado. Statewide, premiums fell from $61,000 five years ago to

$33,000 for OBs and remained stable for family physicians who deliver babies.

Only one claim has been filed against Colorado physicians who used the system during

the past six years, when it was used for more

than 70,000 pregnancies and births, according

to Arnold Greensher, MD, a co-developer of

the system. Nationwide, two claims have

been filed in 150,000 cases since the system

was developed 14 years ago.

‘‘The system helps organize patient care

and makes sure that nothing gets overlooked

or forgotten,’’ said George Thomasson, MD, a

family physician and COPIC’s vice president

of risk management. ‘‘This is especially important with the growth of managed care,

which leads to fragment the delivery of

care.’’

SLOW ACCEPTANCE OUTSIDE COLORADO

Nationwide, more than 1,500 physicians use

the system in 44 states, and more than 55,000

forms were shipped in 1992, Dr. Greensher

said. Physician-owned insurance companies

in at least eight states are testing, promoting or giving away the system.

Louisiana Medical Mutual Insurance Co.

(LAMMICO), for example, began providing

the system to some of its physicians three

months ago and plans to make the system

available to as many physicians as possible.

But the system isn’t in widespread use outside Colorado.
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5787

Even though PICO provides the system free

and offers its doctors a 15% rebate for using

it, only one-third of its OBs and family physicians that deliver babies use it. PICO has

been promoting the system for two years.

‘‘Physicians have been reluctant to try

this because of two things: inertia and the

fact that many hospitals mandate the use of

certain forms of flowcharts that preclude the

use of something else,’’ said Mark Hannon,

vice president of the doctor-owned firm.

PIC-W also provides Prenatal Care to physicians. After 11⁄2 years, it has given away

materials to about 250 physicians. ‘‘Some obstetricians say that some of the forms are redundant and the manual is too basic to be

very useful,’’ Pofahl said. ‘‘The system could

be more appropriate for family practitioners

than for obstetricians.’’

CROWDED FIELD

Users and promoters of the system speculate that it has not caught on more quickly

because of cost and competition. For years, a

host of prenatal care forms and computerized

systems have been available.

Chief among them is the Antepartum

Record, a five-page form introduced in 1989

by the American College of Obstetricians and

Gynecologists. More than 600,000 forms were

sold in 1992, one version for about 20 cases

per form, the other for a dollar.

‘‘A lot of obstetricians already use the

ACOG form and have developed other forms

and office procedures based on it,’’ Pofahl

said. ‘‘Many say they like Prenatal Care’s

system better but that they don’t want to

switch because they are just getting adjusted

to ACOG or other forms.’’

Others complain about the cost of switching and the inconvenience of using two systems during the interim.

While proponents claim Prenatal Care is so

comprehensive that it’s in a class of its own,

physicians, tend to lump all systems and

forms together.

‘‘Our is the only true system,’’ Dr.

Greensher said, ‘‘The other products are just

forms.’’

Steven Komadina, MD, agrees. Last year,

he switched from ACOG’s form to Prenatal

Care’s system, which he describes as nearly

foolproof and far more comprehensive. He especially likes the patient education component, which helps the patient realize that

she is responsible for her health.

The Albuquerque obstetrician has less use

for the manual, but says it’s helpful for

nurse practitioners, physician’s assistants

and family physicians.

‘‘It’s helping to relieve a crisis in rural

Torrance County, about 100 miles away, by

giving family physicians there the competence and confidence to provide prenatal

care,’’ Dr. Komadina said. ‘‘Over half the 250

women delivering there receive no prenatal

care.’’

Risk-management directors, however, wonder whether the system is used by physicians

who need it most. LAMMICO told several

‘‘problem’’ physicians last year that it would

not insure them unless they used Prenatal

Care.

‘‘Doctors who have tried the system up

until now are probably the ones with a high

awareness of the issues surrounding risk

management,’’ Gunter said. ‘‘We want to see

the impact on those with high claims frequencies.’’

Mr. KENNEDY. I will read a portion

of it at this time.

Professional liability premiums for some

obstetrician-gynecologists have fallen dramatically in recent years because of greater

physician participation in risk management,

quality assurance and documentation of

care . . .

‘‘Because obstetrics is a high-risk area, we

and other insurance companies have concentrated our efforts on it,’’ said Julie

Pofahl, director of risk management, Physicians Insurance Co. of Wisconsin. ‘‘Physicians are improving the quality of care and

their record-keeping in a variety of ways,

and as a result, we have seen lower frequency

in severity of claims.’’

Their work is paying off. Over the last four

years, premiums charged by physician-owned

insurance companies have fallen more for obstetrician-gynecologists than for any other

specialists, according to the Medical Liability Monitor, an independent newsletter. In

1992, half the companies did not change their

premiums, while 35 percent reduced them an

average of 8.3 percent. In 1989, ob/gyns insured by commercial and physician-owned

companies also saw rates cut an average of

14.5 percent; in 1990, 16.3 percent; and 1991,

10.9 percent.

One risk management and quality assurance plan, Prenatal Care, appears to be so

successful in reducing obstetrics claims that

at least three insurance companies are providing it free to any physician they insure,

even though it costs more than $500 per system and about $5.40 per patient for materials.

Then it continues.

Only one claim has been filed against Colorado physicians who used the system during

the past 6 years, when it was used for more

than 70,000 pregnancies and births.

One claim, one claim, in 70,000. And

we have an amendment to try and escape from any kind of important liability of malpractice claim in ‘‘70,000

pregnancies and births, according to

Arnold Greensher, MD, a codeveloper of

the system. Nationwide, two claims

have been filed in 150,000 cases since

the system was developed 14 years

ago.’’

In Colorado, the quality assurance system

is credited for falling professional liability

rates. Premiums fell from $61,000 five years

ago to $33,000 for obstetricians.

This makes the case with regards to

obstetricians. And they are identified

as being the number one specialty in

need. And here we have in the American Medical News that spells this out.

Now the fact of the matter is obstetrics and gynecology had significant

problems 10 years ago, in 1985, according to the annual liability claims for

100 physicians by the Specialty and

Census Division. They were clearly the

No. 1 in 1985, virtually double from

anyone else.

But since that time, they have had

the greatest reduction, some 22.7 percent, from all the other specialities.

And that just makes the point that

we made earlier and that is that the

greatest problem that we are facing in

terms of malpractice today is what is

happening to the patients that are

being left out in the cold and left behind.

You know, before we begin to shed a

great deal of tears for the insurance

companies and for other medical professionals, it is important to recognize

that you, the taxpayer, are picking up

about $60 billion a year in unpaid

health bills as a result of malpractice.

Someone has to pay. Many of these individuals are without any kind of

health insurance or they lose their

health insurance. Who do you think

pays? It ends up being a burden on the

system.

And what we are being asked to do is

further immunize the insurance industry that has experienced substantial

profits from doing what they were

charged to do, and that is to provide

insurance in these areas.

And second, and importantly, the

McConnell amendment fails to take

the kind of thoughtful steps that have

been supported by Senator JEFFORDS,

Senator DEWINE, and others to take

steps to prevent malpractice. We ought

to be debating this afternoon what

steps are being taken to prevent malpractice in the first place, to keep people healthy.

I know my friend and colleague, Senator WELLSTONE, will be offering an

amendment on that particular issue.

We made some progress on it in the

consideration of the bill before the

committee, but not in this bill, not in

the McConnell bill. That has all been

left out.

Why are we not trying to prevent

malpractice before it takes place? Why

are we not trying to find out through

the data bank who the bad apples are?

The data that is collected and sent to

the National Practitioner Data Bank is

information about malpractice cases

and disciplinary actions taken against

doctors. That information is made

available to hospitals and to HMO’s

and to professional associations but is

not made available to the general public. Why are we not making it available

to the general public? Do you know the

answer we heard in our committee? We

cannot do that in the committee because the data bank is not insured

enough.

I showed in the course of our considerations a book that was 5 inches tall

that is published by Public Citizen,

‘‘10,000 Questionable Doctors.’’ This

book documents State by State information that is available to the public,

about the number of licenses revoked,

surrendered, or suspended; fines

against doctors; criminal convictions;

sexual abuse or sexual misconduct with

a patient; substandard care; misprescribing or overprescribing drugs;

drug or alcohol use; and other offenses.

This is a matter of public record. It is

collected in this document by Public

Citizen and made available so people

can find out about it. We want to make

sure that it is done in a comprehensive

way, updating information through the

data bank. The consumers can find it if

they can find this book. If they know

the book exists and they know how to

find it, they can look up various doctors.

Why do we make it so difficult? Why,

if we are trying to prevent malpractice,

are we not giving information to the

public? What are they scared of? What

are the doctors scared about? What are

they frightened of? We know. They just

do not want to have that information

available, which is understandable for
S5788 CONGRESSIONAL RECORD — SENATE April 27, 1995

their profession, but do not say to us

that a prime need for us on the floor of

the U.S. Senate in a health care debate

is to deny the American consumer the

kind of information that is available

already and should be made more accessible.

The data bank ought to be strengthened. We had CBO studies and GAO

studies about how its information can

be strengthened. And it should be. That

is something that we tried to do under

the leadership of Senator JEFFORDS in

our committee, which was included in

the bill, though not as strongly as I

would like to see.

So there are some matters that I

think are of importance that were considered in some very important debates

and discussions in the committee; they

are the kind of matters that ought to

have been included or addressed in the

McConnell bill.

Mr. President, I want to take a few

moments of the Senate’s time just to

review where we are on the issue of the

insurance industry, and I refer to the

National Insurance Consumer Organization report, which is a March 1993 report, because we now evidently are prepared to say that Montana does not

know best how to treat these problems,

or Wyoming does not know best how to

deal with this; we need to have these

Federal standards on the issue involving a doctor and his patient.

I, quite frankly, think this is dramatically different from even the underlying bill, the tort liability bill,

where you are talking about various

products that go into a State. We are

talking, in this circumstance, about

the very sensitive personal relationship

between a doctor and a patient. There

are not many other relationships which

are more important and more personal.

We hear so much, we know what we

really need locally. But, oh, no, the

McConnell amendment is virtually

going out to preempt State activities.

So we have to know we have a declining need or declining burden on the

profession, as we mentioned the OB/

GYN, what the recent statistics show.

Consider the number of gynecologists

that are graduating from our fine medical schools. That number is not diminishing. The Department of Health and

Human Services finds the relationship

between needs and supplies in six specialities are far from having a shortage.

There is actually an oversupply of obstetricians and gynecologists.

I am glad to work with our colleagues about how we find out how to

deal with underserved areas, but this is

not the answer. You have the underserved areas. You have to deal with the

burden a young person has when they

graduate from college or from medical

school, what their financial burden is,

because they cannot make the sufficient resources, if they are going to go

into a rural and underserved area, as

they do in an urban area or in some of

these specialities. You have to understand that they do not get the kind of

support they would get if they would

practice their medicine in one of the

fine medical institutions. They are denied that.

Third, they fall further behind their

classmates in terms of upgrading their

skills. That is troublesome.

Fourth, in too many areas that are

underserved, they do not have as good

an opportunity for education for the

children of these young people that

want to go to school, and the parents,

as dedicated as they are, do not want

to disadvantage their children.

There are a whole series of reasons.

But to tie in the fact that we have underserved areas in this country and

that the principal reason is because of

the insurance to the OB/GYN just does

not hold.

Mr. President, I want to just again

refer to the studies that were done by

the various State organizations, insurance associations and their review of

what is happening on medical malpractice insurance in their particular

States. One of the States that they

have reviewed is a State that has a

number of the features that have been

included in the McConnell amendment,

and this is what they point out.

In 1991—and I will include the appropriate parts of this study in the

RECORD for reference for Members over

the weekend —in 1991, insurers writing

medical malpractice insurance in the

United States earned a return of $1.419

billion or 15.9 percent of net worth.

This is the profit after dividends to

doctors and hospitals of 4.2 percent,

over $200 million. Investment income

amounts to almost 50 percent of premium, due to lost reserve. Economists

testified in insurance rate matters that

returns of 13 to 16 percent on net worth

are appropriate for this line of insurance. Here it is for this line of insurance, 13 to 16 percent guaranteed. I

think most Americans would want to

have that kind of investment if they

could be assured of that kind of profit.

According to studies undertaken by

the California Department of Insurance, properly capitalized insurers

should hold only about a dollar of net

worth for every dollar of premium for

this line of insurance. This is medical

malpractice. Had insurers not retained

so much previous profit, America’s

medical malpractice insurance return

on net worth would have been 29.2 percent. Mr. President, 29.2 percent—a remarkable high return—which is almost

double the profit required to reward

the risk of underwriting medical malpractice. And in the six States that undertook tort reform, studied by the

GAO office, profits in 1991 averaged 122

percent above the national average,

implying possible insurer profiteering

in these States.

(Mr. SANTORUM assumed the chair.)

Mr. KENNEDY. It is those provisions

which are basically and fundamentally

included in the McConnell amendment,

at a time when you have 100,000 Americans that are dying, you have no pressure in terms of the increased premium

costs, a decline in judgments and in the

number of cases that are brought. And

in the six States which have effectively

brought about these kinds of no joint

and several—the collateral charges, the

limits on the fees for doctors and all

the rest, they are having 122 percent

above the national average. Here we

are debating a health matter before the

U.S. Senate, with all of the health issues that are affecting working families in this country, for all those parents that are going to go home tonight

and wonder whether they are going to

still have jobs because of downsizing or

cutbacks in defense, or because of all

the challenges in our economy, wondering whether they are going to have it;

or whether those families know whether they are going to get it tomorrow,

or the 800,000 new children are not covered on the basis of last year alone.

Here we are taking action that is

going to provide that kind of a guarantee to the insurance industry. I

thought we were here to represent the

working families, working men and

women, the children, the older people.

We hear the reports that are coming

out of our Budget Committee about

further cutbacks in Medicare for elderly people. That is an enormously important problem. I think we ought to

have some adjustments if it is part of

an overall and comprehensive reform.

But here in the first order of business

in the Senate we are looking out after

these insurance companies. This has to

be a matter that must be of concern to

all Americans.

I will include the segments of the

most recent report which came out in

the last 2 days, Mr. President. I will

mention just one interesting observation about the most recent reports. Insurance companies have now reduced

malpractice liability premiums commensurate with a drop in malpractice

claims payments in recent years in

California and the Nation. Insurance

companies have reaped excessive profits—in 1993, paid out 38 cents of every

premium dollar.

Well, Mr. President, that is what we

are addressing here. We will hear a

great deal about, well, can we not do

something about the person that is the

victim of malpractice? Yes, we can and

we should. That is why out of our

Human Resources Committee last year

we came out urging the States to have

alternative dispute resolutions, and to

build on the existing programs adopted

in the States that go for early resolutions, to experiment with practice

guidelines and enterprise liability,

even no-fault liability programs, all of

those matters to try and look out after

the consumer. All of that has passed

and gone out. All of that experimentation is out. All of the efforts to try

and prevent malpractice, all of those

are out. All we are dealing with is bottom-line issues. What is going to happen on the bottom line for those medical insurance companies? That is the

issue. Let us not fool ourselves about

it.
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5789

A recent article that gives a characterization of malpractice coverage in a

stable condition says this—and this is

Business Insurance, March 28, 1994, 2

months ago:

Insurers view medical malpractice, hospital professional liability, and related coverage as profitable lines these days, Broker

says. In fact, some insurers are looking to

increase malpractice accounts in an attempt

to offset the meager earnings in the commercial market.

There is more capacity and there are

more players than 3 years ago. More

market and capacity than there were 3

years ago. It seems like every month a

new insurer wants to underwrite medical liability and coverage for health

care organizations.

Is this what we are hearing from our

colleagues that are crying crocodile

tears about all of our specialties that

cannot do it and are not able to serve

our poor, underserved people in this

country? That is hogwash. See what

the insurance industry says, not what

some of us who have serious concerns

about this whole kind of approach say.

Look at what Business Insurance says

about it. It seems like every month a

new insurer wants to underwrite medical liability coverage for health care

organizations. As long as companies

are making profits that exceed the average property casualty profit line,

they will want to underwrite this coverage.

In other words, boys and girls, you

want to get on the gravy train, get on

the malpractice gravy train, as it is

today. We are going to even make it

better for you with the McConnell

amendment.

Mr. President, we must have other

measures which are of greater urgency

and importance for us to be addressing

than that particular measure.

It seems to me that at the appropriate time—and I see others that want

to address the Senate—I will offer the

amendment which I offered in the committee, which basically was the substitute amendment which was accepted

unanimously last year in the Human

Resources Committee by all Republicans and Democrats.

Let me tell you what it is about. It is

a reasonable question to say, all right,

we know what you are against. We

have problems. What are you for?

Let me briefly summarize what this

amendment would do.

The amendment that I will offer at

an appropriate point is identical in

content to the malpractice reform subtitle of the health care reform, favorably reported by the Labor Committee.

It seems to me that this is the appropriate vehicle to report to the full Senate because it was the product of carefully measured bipartisan deliberation.

In that regard, it stands in sharp contrast to what the measure is that is before the Senate this evening.

Many of the current members of the

Labor Committee will remember that

we spent the better portion of 2 days

thoroughly discussing and improving

the malpractice title of the health care

bill. For example, there was considerable debate about the preemption

issue. We resolved that by accepting a

Coats amendment striking preemption

language that had been in the original

mark.

It was a debate in a series of amendments regarding attorneys’ fees and

the result was a deliberative process.

We limited those fees from the percentage that originally appeared in the

Clinton bill. We sharpened the State

demonstration programs authorized in

the bill, adding a proposal by Republicans to explore no-fault liability programs. That said, if you have injury,

you are able to collect right away; you

do not have to prove negligence, and

you can be reimbursed right away. It

will not be as much as if you had gone

through a court procedure, but you will

get resources quickly in response to

medical injury. A few States are doing

that. We are encouraging that as a way

to assist fellow citizens and to see

whether it works. Eventually, we

reached a bipartisan consensus on sensible medical malpractice reform provisions.

There are some who wish to go further in the area of damage caps, which

my impression of the language in that

subtitle, was broadly acceptable to

every member of the committee.

The reforms the Labor Committee

approved last year included mandatory

alternative dispute resolutions; a limitation on attorney’s contingency fees,

collateral source reduction, periodic

payments of awards, a State option to

require certificates of merit before filing actions, and State demonstration

projects to determine alternative approaches to malpractice.

These are meaningful, major kinds of

reforms to the system that we had, and

not only with regard to the malpractice. We had important and significant reforms in the areas of preventive

health care, which I will not get into at

this time.

These are the provisions we all

agreed upon. They are sane, rational

reforms which we crafted ourselves

over lengthy bipartisan deliberation.

Although I would greatly prefer to

see them included in a far more reaching health reform bill that would guarantee health security, they remain acceptable to me as an alternative to the

measure which we are considering on

the floor of the Senate. They will improve the malpractice system without

unduly limiting the right of consumers

to compensation for injuries sustained

as a result of negligent medical care.

I submit that it is preferable to adopt

these carefully consider reforms, rather than rushing to approve a bill that

we have not sufficient time to address.

Now, Mr. President, it seems to me

that that is a responsible, thoughtful

product of give and take by Members,

that come here with a wide variety of

different thinking on the issue of malpractice reform.

We saw considerable debate that took

place for a day and a half in our committee. We were able to make some adjustments. Still, it was not reported

out in a bipartisan way. Nonetheless,

we made some progress. That has effectively been discarded.

At an appropriate time I will offer

that amendment perhaps as a seconddegree amendment to the McConnell

amendment. An additional amendment, Mr. President, that I intend to

offer, would make clear that the reforms in this bill do not preempt State

law.

I see the Senator from West Virginia.

I have about 10 more minutes. If the

Senator had a statement or intervention to make, I would be glad to yield,

but otherwise if it is agreeable, it

would be about 10 more minutes.

The preemption amendment would

make clear that the reforms in the bill

do not preempt State law, but apply in

situations where there is no relevant

State law. But where a State legislature has enacted a reform or affirmatively chosen not to enact to reform,

the State’s choice would prevail.

We hear much from the new majority

in Congress about the States rights and

the decentralization of power. We see

proposals to turn over the administration of Federal entitlement programs

to the States in the form of block

grants, and we are told that there is

much wisdom in State governments

which are closer to the people than the

Federal Government. However, in this

bill, the opposite philosophy prevails.

Suddenly States cannot be trusted.

States cannot even be allowed to write

the laws to govern consideration of

tort cases that have been their responsibility for over 200 years, about 100

years, recognized in court opinion.

Apparently in this area, Congress has

all of the answers. It is especially

strange that this bill preempts State

laws very selectively. Only laws that

benefit consumers are preempted,

while those that benefit doctors and insurance companies are allowed to

stand. Preemption of State tort laws is

generally disfavored, but this resultoriented brand of preemption is especially unfair. One sided preemption.

One sided.

We can make the case on the issues

of tort that States should be able to

make their own judgments. That is certainly the conclusion that we reached

last year. However, in this particular

program they say, all right, the States

can make it as long as they are making

what is favorable to the industry and

not the consumer. That is the bottom

line.

It is one-way preemption against the

consumer, against those working families, against those children, against

those parents, in favor of those insurance companies that are making the

record profits.

There is a product liability bill on

the floor, and I have serious concerns

about many aspects, but at least there
S5790 CONGRESSIONAL RECORD — SENATE April 27, 1995

is a plausible basis for Congress to create Federal standards to govern the liabilities of manufacturers who sell

products in a nationwide market.

Undoubtedly, interstate commerce is

at stake in the context of product liability, but the medical malpractice is

typically a legal dispute between an individual, between his and her doctor,

within the boundaries of a single State.

Interstate commerce is hardly at the

heart of the transaction, so there is no

justification for imposition of Federal

standards.

When we considered malpractice in

last year’s health bill, Members of both

sides of the aisle were anxious to protect the reforms that their legislatures

had enacted. Everyone recognized the

need to proceed slowly for overturning

200 years of law in 50 States, and by

unanimous vote we deleted that language that would have preempted inconsistent State lawsuits.

The amendment basically carries forward that valuable lesson from last

year’s debate that States that the

basic principle, that this bill does not

preempt State law. If a State has taken

no action in a particular area, this

Federal law will apply; but if a State

has found a better way to address a

problem in light of conditions in that

State, we should not substitute a Federal solution in a field that States have

occupied for 200 years of American history.

So there would be a preemption

amendment. I would hope that this

would be successful. There are other

approaches that have been mentioned,

by Senator ABRAHAM and others, who

have addressed that.

Finally, I would just say that many

were absolutely amazed at the inclusion of a loser-pays concept, included

in the legislation which was included

in the bill that was before our committee. I understand it has been changed.

I think, wisely so.

We could be in the extraordinary case

where an individual was able to win

their case in the courts, and because

they had not accepted a previous kind

of offer, effectively would have been required to pay the attorney’s fees for

the other side, even though they got a

finding that there had been negligence

and they had been endured medical

malpractice.

Now, the loser-pays system has been

a part of English law. There is an excellent article from the bar association, recently pointed out, and as the

Economist magazine, one of the distinguished magazine commentaries both

on American and English public affairs

has pointed out, they are moving in the

direction of the United States for welldocumented reasons. And that is because the unfairness and injustice that

that creates.

We had a proposal before to move in

their direction. It was not enough to

have the punitive damage caps or the

repeals of joint and several, which have

been out there for many years which

had loser pay. We had one-way preemption and we have no access to the data

bank.

That was the major flaw—the cap on

punitive damages, no matter how egregious the circumstance was going to

be, in spite of the high standard that

would have to be reached in order to be

able to claim punitive damages, the repeal of joint and several so that even in

a circumstance we could see the tragic

circumstances where that individual in

Florida that lost one leg, he was also a

diabetic, so he was disabled. Hence, he

did not have the loss of much wages

and economic damages. Since he is getting disability, the disability was paying in, that would be an offset to what

the insurance would have to pay if

there was negligence in that particular

case. That is absolutely crazy. That is

absolutely crazy.

Those are the kinds of circumstances. When we have joint and

several, and we eliminate those, and we

eliminate the payment, the legitimate

payment, to those individuals that

ought to be decided on the basis of the

jury, someone pays—and it is the

American taxpayers—$60 billion. That

is who ends up paying, if the insurer

that is supposed to provide that kind of

coverage, and is obligated to do so, if

they are in the insurance business,

does not do so.

We also know the dangers of adding

onto that the collateral provisions,

which in many instances diminishes in

a dramatic way the payments to individuals who otherwise would be entitled to payments in a court of law.

That has been a factor.

Then one of the most extraordinary

matters we were facing in our bill is,

even if you got the punitive damages, if

you were able to get some punitive

damages, part of those punitive damages were going to go to fund some

quality control measures. That made

absolutely no sense at all.

So I hope we will have a chance. We

are glad to work with the leadership to

try to get an orderly way of addressing

some of these issues. It is not our intention—at least not my intention—to

delay Senate action. But I do think we

just had the measure that came up this

afternoon when many of us were over

on the Judiciary Committee. My colleague, Senator SIMON, and other members of our committee were at the Judiciary hearing on terrorism; and we

had the mark-up on the Judiciary Committee earlier today on regulatory reform, which a number of us are involved in. We want to meet our responsibilities. But on important measures

like this, the Senate is entitled to at

least give some consideration to matters which are going to have an enormous impact on fairness and on justice

and on the quality of health care for

the American people.

One of the aspects of health challenges that we are faced with—we have

the issue of access and the availability

of health care. We have the costs of

health care, the fact that it continues

to rise. From $1 trillion, it will double

by the year 2002 to $2 trillion. We have

to do something about getting a handle

on those health care costs. We have to

do something in terms of making it

available, particularly to the children.

Of the 40 million people who have no

health care coverage, about 15 million

children in our country have no health

care coverage. We have to do something about those. But we have to do

something about quality as well, and

this is something that deals with quality and it is a step backwards, not a

step forward. And it should not be accepted.

The PRESIDING OFFICER. The Senator from West Virginia.

Mr. ROCKEFELLER. Mr. President,

what is interesting about all of this is

that the business at hand is something

called the Product Liability Fairness

Act. I want to be very frank about my

disposition towards the amendment

which is at this moment before us.

This is not a unique situation in the

Senate. Senators have the right to

come forward and offer amendments to

legislation that are outside the scope

of the legislation before the Senate. We

have seen that done ever since I came

to the Senate, from both sides of the

aisle. And sure enough, Senators from

Kentucky and Connecticut and Wyoming are using their rights to ask the

Senate to decide whether to attach a

series of provisions dealing with malpractice to a bill dealing solely and

only with product liability.

An entire day disappears. Whether

there is passage or not, it will not be a

part of the final version of this legislation. It will get vetoed, it will get

taken out one way or other. It is an exercise of folly, which is sad. And I will

express my views.

I am deeply committed, as committed as anybody in this body, to health

care reform. And I see malpractice reform as an integral part of the solution

to the crisis that faces the self-esteem

and the condition of our physicians,

our hospitals, and the American people, and I think of those in my own

State of West Virginia in particular.

Mr. President, I have watched the

Senate come very close to the point

where we might enact a product liability bill during the past 6 years. We actually got 60 votes several years ago; 60

was written down on the table here in

front of us. The majority leader at that

time, under the rules, stopped the vote

and we spent the next 45 minutes while

he found two Senators who had voted

yes to change their votes to no. So we

lost.

Now that we have 20-minute votes,

that is much harder to do. I am very

happy for that. But we have come very

close. And I take product liability reform extremely seriously. I think it is

something that needs to happen both

for consumers and for businesses in

this country. I think it is important

for America. I think it is important for

the American people. I take product liability seriously and anything which

comes in the way of product liability,
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5791

and a chance—and perhaps the last

chance that we ever have—to assemble

a coalition that is willing to go for

this. Now we have other amendments.

You have to understand, as I am sure

the President does, that people better

start making a decision around here.

Do you want to have the fun of making

wonderful speeches and putting on

what I think is very good legislation,

amendments in terms of malpractice

reform? Or do you want to have product liability? You are probably not

going to have both.

Today has been interesting. I did not

schedule a lot because I thought we

were going to be dealing with product

liability, and all of a sudden we are

dealing with something called malpractice reform that has to do with

health care.

Now the Senator from Massachusetts

is talking about a whole series of

amendments, so I assume this will go

on for a long time. There are some people in this body who have not yet quite

decided whether this bill, called product liability reform, is in fact good

public policy. That may be more on

this Senator’s side than the side of the

Presiding Officer. But there are some

people who have not quite decided

whether this bill should be used to

enact good public policy on product liability.

Or are we just making points about

other things that we are interested in?

Which I might be interested in. But at

some point people have to make a

choice. Are we going to do product liability or are we going to do a whole

series of things which then end up negating the chance to get product liability?

I have been working on product liability for 9 years; some have for 13. I

made a variety of tabling motions yesterday to express very clearly my view

about that. In fact, there was one that

was a Heflin-Rockefeller amendment,

which does not comport with the natural tendencies that surround product

liability. I am trying to make the point

that I want this to be a pure product liability bill.

The Senator from the State of Washington, Senator GORTON—extraordinarily skillful, extraordinarily insightful, extraordinarily disciplined—

believes, as I do, that if we are going to

get 60 votes to stop the filibuster that

will surely be there and will come at

some point, it is going to be very close.

And he agrees that we should focus, as

I agree we should focus, on product liability.

It is a very complicated subject. It is

a very complicated subject to explain,

particularly when explained by a

nonlawyer such as myself, much less a

skilled lawyer such as my colleague

from the State of Washington.

The majority leader can schedule a

separate time, its own special time to

take up malpractice reform such as the

malpractice reform legislation that, in

this case, was adopted just on Tuesday

by the Senate Labor Committee. But in

good conscience I, as manager on the

Democratic side of the aisle, cannot

take the risk when the chances are

good of enacting product liability reform, making reforms to a broken, dysfunctional product liability system

—that these will all be torn asunder,

weakened, scattered about by a series

of other amendments, in this case dealing with a very, very important subject

called malpractice reform. I do not

have any choice but as to my conclusion, and at the appropriate time I will

move to table this amendment and the

underlying amendment, and other

amendments associated with it. I have

no choice.

With cosponsors from both sides of

the aisle, with a long history of strong

support in this body, Senator GORTON

and I have been on this floor all week

talking about our rather grave concern

about the problems in the current

patchwork of unpredictable, unfair

matters associated with product liability. This Senate has before it a very

carefully constructed bill to improve

the system to make it less costly, to

make it more predictable, to make it

more fair for everyone. And enacting

product liability reform is what I believe the goal should be for the Senate

at this moment, as of all of this day, as

of all of the moments that remain.

Yesterday, as I indicated, we moved

to table a number of amendments

which were related to a legal system

and lawyers, but were beyond the scope

of product liability legislation. So I

moved to table them. The malpractice

reform amendments offered today are

analogous to previous broadening

amendments which were offered and

then tabled.

I hope that we can reach an agreement on a course of action that provides for a meaningful debate on the

pros and cons of malpractice reform,

and in the near future. As I have indicated, I think if we could do this before

July 4, it would be very, very good.

That might be an option which would

address any concern that there will not

be another timely opportunity to deal

with malpractice reform.

The medical community in my State

wants malpractice reform more than

anything else that exists. They want it

desperately. I also do. Given another

moment on another day, a bill in the

range of what has been presented this

day would have my vote; that is, the

kind of amendment on malpractice

which has been presented by Senator

MCCONNELL would have my vote. I

would argue for it vociferously. I might

disagree with some of the points that

have been made about it, but not the

majority of its provisions. I hear from

doctors all the time, I hear from hospitals all the time about the importance of malpractice reform to them as

essential health care professionals in

my State. We have had ongoing dialog

on this issue, and I know I can say that

I understand what they want. I understand the problems of health care.

I have done a lot of work on health

care over the last 8 years or so. I very

much want to be able to improve the

climate for practicing medicine in

West Virginia for all providers. I want

to do all I can to make sure that we

have an adequate supply of all needed

health care professionals in my State,

particularly OB–GYN’s and health care

providers which are in short supply in

almost every county—in some counties

in the State of the Presiding Officer; in

most counties in my State.

I also believe good malpractice reform will help improve the quality of

health care services in my State, malpractice reform can be in the best interests of patients and their health

care professionals alike.

What is interesting is that malpractice is also a state of mind preventing a lot of people from going into

medicine. There are a lot of doctors

now who have told me they do not

want their sons or daughters to go into

medicine. It is not worth it, they say.

Every patient they face is a potential

litigant. We are a litigious society,

sadly and shockingly so.

Yesterday, I had a long visit with Dr.

Jim Todd, executive director of the

American Medical Association; Dick

Davidson, of the American Hospital Association; and Tom Skully, of the Federation of American Health Systems,

another group representing a large

number of hospitals in this country.

They said nationwide the doctors and

hospitals whom they represent, and

that is a very large collective membership, want strong malpractice reform

enacted as soon as possible. I shared

with them my strong desire to help toward passage of that end. But let me

say that we cannot do both things at

the same time.

If we pass medical malpractice and it

is incorporated into the product liability bill, some votes from this side will

fall off and the entire tree will collapse. You put too many decorations

on a Christmas tree, and at some point

the bow simply falls and everything

drops off.

I do not think it is very complicated.

I think this really is a test of who

wants product liability reform and who

does not. I can understand the opponents of product liability reform adding on all kinds of amendments. I can

understand that to deter, to generally

scatter attention, and to dilute. But I

cannot understand those who favor

product liability doing that.

This is not just a question of the

House agenda, the Contract With

America. There is a lot of concern on

my side, Mr. President, about this

bill—it is very real on my side—that it

is going to be loaded up with what

came over from the House. I think one

of the things that the other side is

learning now is that, if they were to

put forward a series of amendments,

they will not get as many votes as they

thought they would, and the votes really will not be there to do the job. It

will not be there on our side, almost
S5792 CONGRESSIONAL RECORD — SENATE April 27, 1995

for certain, and they will not be there

on the other side.

So here we are. I may not agree with

every provision of malpractice reform

advanced by some. But I want to see it

done. I want that clear. This is, in a

sense, my issue as much as any issue in

this body. I have physicians, hospitals,

and others—and patients in West Virginia—who need to have this happen. I

just want to be certain that no one

misunderstands my position. Despite

the concern that other Members have

expressed about attaching malpractice

reform onto product liability, I have no

intention of ducking the issue of the

need to deal with malpractice reform. I

understand what is going on.

I am interested in why the Senator

from Kentucky chose to offer his original malpractice bill as an amendment

as opposed to what was marked up in

the Labor Committee. The majority of

the provisions of Senator MCCONNELL’s

bills are ones which most of us supported in the past on one piece of legislation or another. I am also interested

in hearing the rationale for Senator

THOMAS’ second-degree amendment regarding rural care.

But, in the end, I just return to Senator MCCONNELL’s underlying malpractice reform amendment and I say,

do we not have to choose? I feel we do.

We cannot have it both ways. I fear

that, if this amendment, as much as I

might be interested in it, were to prevail, it would peel off votes from my

side of the aisle, and product liability

would lose. I do not want that to happen. The Senator from Washington

does not want that to happen. It has

been our pledge from the beginning

that we are going to try to keep this

bill as clean as possible; clean—only

product liability. Anything outside, we

work against.

So I hope my views on this are understood. I repeat that at the appropriate

time, I will move to table the various

amendments that deal with this subject.

I thank the Presiding Officer and I

yield the floor.

Mr. JEFFORDS addressed the Chair.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. JEFFORDS. I wish to comment

just briefly on the comments of the minority manager of the bill. I wish to assure him that coming from a State

that suffered as much from the problems of product liability reform, having lost much of our machine tool industry and a big cause of that being

the big differences between the liability of our own businesses in this country and those of our foreign competitors, I will not do anything in any way

to destroy the opportunity to have

product liability pass, and I think I

speak for the Members on my side of

the aisle.

However, I feel I must bring to his attention and the attention of my colleagues that there is a very noncontroversial aspect of the MCCONNELL

amendment which, if passed, would

move us a long way towards two very

important matters in the health care

area. First of all, it would assist in preventing medical malpractice, which is

probably the most important thing we

can do. What we want to do is to provide the opportunity to gather the information which would be necessary to

be able to prevent the occurrence of

malpractice by having sufficient guidelines and information available to doctors so that the number of incidents of

malpractice will be decreased.

And second is to protect consumers.

We are moving into an area right now

where we have managed care throughout this country. Health care reform is

going on. Notwithstanding the fact

that we failed to pass anything of any

substance last year, health care reform

is going on. But the managed care concept raises real serious problems for

consumers as to how they can be protected when they get into situations

where choice of the doctor may not be

what they intend or even available to

them. How can they get information on

what is available to see if the care they

are going to get or the doctor or physician they have is one that is qualified?

So I am referring to a part of the

McConnell amendment that is under

subtitle B that is called ‘‘Protection of

the Health and Safety of Patients,’’

and most particularly section 32, which

is entitled, ‘‘Quality Assurance, Patient Safety, and Consumer Information.’’

We are now in the information age,

and with all of the computer internets,

all the information that is able to flow

back and forth, we have an opportunity

to give to the health care providers the

ability to know what is good care and

what is not good care, to have information on outcomes to be able to determine as to what should be done and

what is good care and what is not good

care.

All this bill does is to provide an organized system for obtaining this information in various ways and making it

available for those purposes. No one

disagrees with that.

So I would hope, if nothing else, we

can include these things which are totally noncontroversial to this bill if it

should prove the malpractice provisions otherwise might bring the bill

down. What it does is establish an advisory panel to coordinate and evaluate

methods, procedures and data to enhance the quality, safety and effectiveness of health care services provided to

patients. No one disagrees with that.

In order to do that, the panel that

would be set up will assure that the

members of the panel include representatives of the public and private

sector, entities having expertise in

quality assurance, risk assessment,

risk management, patient safety and

patient satisfaction.

What it does, it establishes these objectives, again for which there is absolutely no problem with anyone.

The survey shall include gathering

data with respect to, first, performance

measures of quality for health care

providers and health plans; second, developments in survey methodology,

sampling, and audit methods to try to

determine what is going on; third,

methods of medical practice and patterns and patient outcomes; and

fourth, methods of disseminating information concerning successful health

care quality improvement programs,

risk management and patient safety

programs, practice guidelines, patient

satisfaction and practitioner licensing,

all things we know are essential to be

able to give us the kind of information

we must have to protect the consumer

and as well to give guidance to the

medical profession to reduce the opportunity for malpractice.

In addition, ‘‘the administrator shall

* * * establish health care quality assurance, patient safety and consumer

information guidelines. Such guidelines shall be modified periodically.

Such guidelines shall be advisory in nature and not binding.’’

So we are not doing anything that

anyone can disagree with but will be so

important to provide the information

that is necessary, made available

through internets and whatever else, to

ensure that we are getting the best

care possible that is available. So I do

not think anyone can disagree with

these provisions which the McConnell

substitute attempts to accomplish.

So I would urge my colleagues, be assured that there are many good things

that are noncontroversial and very important to the improvement of our

health care system which are in the

McConnell substitute and which are

not things that should give us any concern at all.

So I hope, as we go forth here, if the

minority manager of the bill is correct

in that malpractice is going to be so

controversial that it will not pass, that

something which the sooner we get

started the sooner we will be able to

prevent medical malpractice and the

sooner we give protection to consumers

ought to go forward in some way along

with this bill rather than have to wait,

so that we can get to the business of

providing that kind of information and

that kind of assistance to both practitioners and to consumers.

Mr. President, I yield the floor.

Mr. WELLSTONE addressed the

Chair.

The PRESIDING OFFICER. The Senator from Minnesota.

Mr. WELLSTONE. Mr. President,

might I ask, are there other colleagues

who want to speak right now? If not, I

wonder if I could suggest the absence a

quorum for a moment with the understanding that I would have the floor.

Mr. DOMENICI. Mr. President, I am

going to speak at length, but I would

like to take 2 minutes now and then I

will sit down and come back later or

whatever time is available. Could I do

that?

Mr. WELLSTONE. Mr. President,

that would be fine.
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5793

The PRESIDING OFFICER. The Senator from New Mexico.

Mr. DOMENICI. Mr. President, later

on I will speak to the overall issue of

judicial and jury reform as it applies to

civil litigation in the United States,

but I thought I might just tonight express for the Senators at least what my

head tells me about this system. I was

looking around for some judicial stalwart who might have addressed the

issue, and I found that Supreme Court

Justice Lewis Powell described punitive damages as follows:

It invites punishment so arbitrary as to be

virtually random.

Now, the reason I bring that up is because I believe that it is absolutely

true, and so what we get in certain advertisements across the country and in

statements in the Chamber, is the random damage award that was proper or

somewhat proper. But we do not hear

the hundreds that were randomly

wrong, wherein the jury was taken advantage of by emotions and awarded

huge punitive damages when they were

not warranted. We also don’t hear

about the even bigger issue of what

this does overall to our litigation system. Clearly it invites more litigation

because the random winner may be a

big winner.

Now, what does the random nature of

the potential for a big win mean to our

litigation system? Mr. President, it

means cases get settled that are not

worth anything. That is obvious. A

company has to settle lawsuits because

they cannot take the chance of the

random verdict.

Now, I am very pleased that Justice

Powell said it that way. I have said it

is the worst way to regulate human behavior in America. If you are trying to

find standards to have people hold

their performance to, the worst way is

to ask juries to set the standard. For

nobody knows what it will mean and

clearly juries have all the latitude in

the world when you add punitive damages to the system. It leaves all kinds

of impressions with those who are supposed to be bound in some way, by

changing their conduct to a high or

better standard.

Now, the Justice went on to say the

following, which sort of hits my last

remarks: Because juries can impose

virtually limitless punitive damages,

in Justice Powell’s words, they act as—

And I say this to my good friend from

Washington, let me quote it perfectly

as he said it—they act as a ‘‘legislator

and judge without the training or experience or guidance of either.’’

That is a pretty good way to say it.

Who told juries what the standard of

conduct is or what a company ought to

pay if they violate some kind of standard of the ordinary man or ordinarily

prudent man? No one. So they are told

that by words that lawyers express,

when they are not trained in the law

and they are not trained in what kind

of damages we ought to extract from

people who do not behave according to

a norm.

So I come to the floor to laud those

who are looking for reform in this system. And I specifically tonight just had

a few remarks with reference to punitive damages. Clearly, there are cases

where punitive damages should lie. On

the other hand, there is not going to be

a perfect solution to the dilemma we

find ourselves in. If we conclude that

since we cannot come up with a perfect

system on punitive damages since

there are a few cases that are entitled

to extraordinary kinds of punitive

damages for one reason or another,

that we cannot solve that problem, we

will never do anything.

We will leave in place a system that

is so arbitrary as to be virtually random. We will run around this country

talking about that as if it were a real,

bona fide, honest-to-God system when

it is nothing like that. It is so arbitrary as to be virtually random. And

that is no system. That is no system of

assessing damages.

Mr. President, obviously I have not

been down here during the past week.

Some will probably say, ‘‘You have already said enough.’’ But obviously, I

will say a little more, because I have

some pretty strong feelings about it.

I close with a parting shot. I wonder

if our Founding Fathers and the common law of England from which we

continue to say we derived all these

marvelous rights, I wonder if they ever

would have had in mind that we would

send a malpractice case of the type we

are sending the juries, or product liability of the type we are sending to

the juries. I believe if you had asked

the Founders, they would have said,

‘‘Of course not. They ought to be arbitrated by people who know something

about it.’’

I yield the floor.

Mr. WELLSTONE. Mr. President, I

had a chance to speak at some length

today, so I will not respond to my colleague from New Mexico. I appreciate

his remarks. I tell him as a good friend,

I should have known when he said it

would be 2 minutes, it would be a little

more than 2 minutes. But he is eloquent and he is a very, very important

voice here in the Senate.

Mr. President, I ask unanimous consent that the Thomas amendment be

set aside so that I may offer an amendment.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. WELLSTONE. I thank the Senator from Washington.

AMENDMENT NO. 605 TO AMENDMENT NO. 603

(Purpose: To modify provisions regarding reports on medical malpractice data and access to certain information)

Mr. WELLSTONE. Mr. President, I

send an amendment to the desk.

The PRESIDING OFFICER. The

clerk will report.

The legislative clerk read as follows:

The Senator from Minnesota [Mr.

WELLSTONE] proposes an amendment numbered 605 to the McConnell amendment No.

603.

Mr. WELLSTONE. Mr. President, I

ask unanimous consent that reading of

the amendment be dispensed with.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

In section ll32(c)(1) of the amendment,

strike subparagraph (B) and all that follows

through the end of the section and insert the

following:

(B) an estimation of the degree of consensus concerning the accuracy and content of

the information available under subparagraph (A); and

(C) a summary of the best practices used in

the public and private sectors for disseminating information to consumers.

(2) INTERIM REPORT.—Not later than 1 year

after the date of enactment of this title, the

Administrator shall prepare and submit to

the Committees referred to in paragraph (1)

a report, based on the results of the advisory

panel survey conducted under subsection

(a)(3), concerning—

(A) the consensus of indicators of patient

safety and risk;

(B) an assessment of the consumer perspective on health care quality that includes an

examination of—

(i) the information most often requested by

consumers;

(ii) the types of technical quality information that consumers find compelling;

(iii) the amount of information that consumers consider to be sufficient and the

amount of such information considered overwhelming; and

(iv) the manner in which such information

should be presented;

and recommendations for increasing the

awareness of consumers concerning such information;

(C) proposed methods, building on existing

data gathering and dissemination systems,

for ensuring that such data is available and

accessible to consumers, employers, hospitals, and patients;

(D) the existence of legal, regulatory, and

practical obstacles to making such data

available and accessible to consumers;

(E) privacy or proprietary issues involving

the dissemination of such data;

(F) an assessment of the appropriateness of

collecting such data at the Federal or State

level; and

(G) the reliability and validity of data collected by the State medical boards and recommendations for developing investigation

protocols.

(3) ANNUAL REPORT.—Not later than 1 year

after the date of the submission of the report

under paragraph (2), and each year thereafter, the Administrator shall prepare and

submit to the Committees referred to in

paragraph (1) a report concerning the

progress of the advisory panel in the development of a consensus with respect to the findings of the panel and in the development and

modification of the guidelines required under

subsection (b).

(4) TERMINATION.—The advisory panel shall

terminate on the date that is 3 years after

the date of enactment of this title.

SEC. ll33. REQUIRING REPORTS ON MEDICAL

MALPRACTICE DATA.

(a) IN GENERAL.—Section 421 of the Health

Care Quality Improvement Act of 1986 (42

U.S.C. 11131) is amended—

(1) by striking subsections (a) and (b);

(2) by redesignating subsections (c) and (d)

as subsections (d) and (e), respectively;

(3) by inserting before subsection (d) (as redesignated by paragraph (2)) the following

subsections:

‘‘(a) IN GENERAL.—
S5794 CONGRESSIONAL RECORD — SENATE April 27, 1995

‘‘(1) REQUIREMENT OF REPORTING.—Subject

to paragraphs (2) and (3), each person or entity which makes payment under a policy of

insurance, self-insurance, or otherwise in

settlement (or partial settlement) of, or in

satisfaction of a judgment in, a medical malpractice action or claim shall report, in accordance with section 424, information respecting the payment and circumstances of

the payment.

‘‘(2) PAYMENTS BY PRACTITIONERS.—Except

as provided in paragraph (3), the persons to

whom paragraph (1) applies include a physician, or other licensed health care practitioner, who makes a payment described in

such paragraph and whose act or omission is

the basis of the action or claim involved.

‘‘(3) REFUND OF FEES.—With respect to a

physician, or other licensed health care practitioner, whose act or omission is the basis

of an action or claim described in paragraph

(1), such paragraph shall not apply to a payment described in such paragraph if—

‘‘(A) the payment is made by the physician

or practitioner or entity as a refund of fees

for the health services involved; and

‘‘(B) the payment does not exceed the

amount of the original charge for the health

services.

‘‘(b) INFORMATION TO BE REPORTED.—The

information to be reported under subsection

(a) by a person or entity regarding a payment and an action or claim includes the following:

‘‘(1)(A)(i) The name of each physician or

other licensed health care practitioner whose

act or omission is the basis of the action or

claim.

‘‘(ii) To the extent authorized under title II

of the Social Security Act (42 U.S.C. 401 et

seq.), the social security account number assigned to the physician or practitioner.

‘‘(B) If the physician or practitioner may

not be identified for purposes of subparagraph (A)—

‘‘(i) a statement of such fact and an explanation of the inability to make the identification; and

‘‘(ii) the name of the hospital or other

health services organization for whose benefit the payment was made.

‘‘(2) The amount of the payment.

‘‘(3) The name (if known) of any hospital or

other health services organization with

which the physician or practitioner is affiliated or associated.

‘‘(4)(A) A statement describing the act or

omission, and injury or illness, upon which

the action or claim is based.

‘‘(B) A statement by the physician or practitioner regarding the action or claim, if the

physician or practitioner elects to make

such a statement.

‘‘(C) If the payment was made without the

consent of the physician or practitioner, a

statement specifying such fact and the reasons underlying the decision to make the

payment without such consent.

‘‘(5) Such other information as the Secretary determines is required for appropriate

interpretation of information reported under

this subsection.

‘‘(c) CERTAIN REPORTING CRITERIA; NOTICE

TO PRACTITIONERS.—

‘‘(1) REPORTING CRITERIA.—The Secretary

shall establish criteria regarding statements

described in subsection (b)(4). Such criteria

shall include—

‘‘(A) criteria regarding the length of each

of the statements;

‘‘(B) criteria for entities regarding the notice required by paragraph (2), including criteria regarding the date by which—

‘‘(i) the entity is to provide the notice; and

‘‘(ii) the physician or practitioner is to

submit the statement described in subsection (b)(4)(B) to the entity; and

‘‘(C) such other criteria as the Secretary

determines appropriate.

‘‘(2) NOTICE OF OPPORTUNITY TO MAKE A

STATEMENT.—In the case of an entity that

prepares a report under subsection (a)(1) regarding a payment and an action or claim,

the entity shall notify any physician or practitioner identified under subsection (b)(1)(A)

of the opportunity to make a statement

under subsection (b)(4)(B).’’; and

(3) by adding at the end the following new

subsection:

‘‘(f) DEFINITIONS OF ENTITY AND PERSON.—

For purposes of this section—

‘‘(1) the term ‘entity’ includes the Federal

Government, any State or local government,

and any insurance company or other private

organization; and

‘‘(2) the term ‘person’ includes a Federal

officer or a Federal employee.’’.

(b) DEFINITION OF HEALTH SERVICES ORGANIZATION.—Section 431 of the Health Care

Quality Improvement Act of 1986 (42 U.S.C.

11151) is amended—

(1) by redesignating paragraphs (5) through

(14) as paragraphs (6) through (15), respectively; and

(2) by inserting after paragraph (4) the following paragraph:

‘‘(5) The term ‘health services organization’ means an entity that, directly or

through contracts or other arrangements,

provides health services. Such term includes

a hospital, health maintenance organization

or another health plan organization, and a

health care entity.’’.

(c) CONFORMING AMENDMENTS.—

(1) IN GENERAL.—The Health Care Quality

Improvement Act of 1986 (42 U.S.C. 11101 et

seq.) is amended—

(A) in section 411(a)(1), in the matter preceding subparagraph (A), by striking ‘‘431(9)’’

and inserting ‘‘431(10)’’;

(B) in section 421(d) (as redesignated by

subsection (a)(2)), by inserting ‘‘person or’’

before ‘‘entity’’;

(C) in section 422(a)(2)(A), by inserting before the comma at the end the following: ‘‘,

and (to the extent authorized under title II

of the Social Security Act (42 U.S.C. 401 et

seq.)) the social security account number assigned to the physician’’; and

(D) in section 423(a)(3)(A), by inserting before the comma at the end the following: ‘‘,

and (to the extent authorized under title II

of the Social Security Act (42 U.S.C. 401 et

seq.)) the social security account number assigned to the physician or practitioner’’.

(2) APPLICABILITY OF REQUIREMENTS TO FEDERAL ENTITIES.—

(A) APPLICABILITY TO FEDERAL FACILITIES

AND PHYSICIANS.—Section 423 of the Health

Care Quality Improvement Act of 1986 (42

U.S.C. 11133) is amended by adding at the end

the following subsection:

‘‘(e) APPLICABILITY TO FEDERAL FACILITIES

AND PHYSICIANS.—

‘‘(1) IN GENERAL.—Subsection (a) applies to

Federal health facilities (including hospitals) and actions by such facilities regarding the competence or professional conduct

of physicians employed by the Federal Government to the same extent and in the same

manner as such subsection applies to health

care entities and professional review actions.

‘‘(2) RELEVANT BOARD OF MEDICAL EXAMINERS.—For purposes of paragraph (1), the

Board of Medical Examiners to which a Federal health facility is to report is the Board

of Medical Examiners of the State within

which the facility is located.’’.

(B) APPLICABILITY TO FEDERAL HOSPITALS.—

Section 425 of the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11135) is

amended by adding at the end the following

subsection:

‘‘(d) APPLICABILITY TO FEDERAL HOSPITALS.—Subsections (a), (b), and (c) apply to

hospitals under the jurisdiction of the Federal Government to the same extent and in

the same manner as such subsections apply

to other hospitals.’’.

(C) MEMORANDA OF UNDERSTANDING.—Section 432 of the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11152) is amended—

(i) by striking subsection (b); and

(ii) by redesignating subsection (c) as subsection (b).

SEC. ll34. ADDITIONAL PROVISIONS REGARDING ACCESS TO INFORMATION; MISCELLANEOUS PROVISIONS.

(a) ACCESS TO INFORMATION.—Section 427(a)

of the Health Care Quality Improvement Act

of 1986 (42 U.S.C. 11137(a)) is amended to read

as follows:

‘‘(a) ACCESS REGARDING LICENSING, EMPLOYMENT, AND CLINICAL PRIVILEGES.—The

Secretary (or the agency designated under

section 424(b)) shall, on request, provide information reported under this part concerning a physician or other licensed health care

practitioner to—

‘‘(1) State licensing boards; and

‘‘(2) hospitals and other health services organizations—

‘‘(A) that have entered (or may be entering) into an employment or affiliation relationship with the physician or practitioner;

or

‘‘(B) to which the physician or practitioner

has applied for clinical privileges or appointment to the medical staff.’’.

(b) ADDITIONAL DISCLOSURES OF INFORMATION.—Section 427 of the Health Care Quality

Improvement Act of 1986 (42 U.S.C. 11137) is

amended by adding at the end the following

subsection:

‘‘(e) AVAILABILITY OF INFORMATION TO PUBLIC.—

‘‘(1) REPORTS, GUIDELINES AND REGULATIONS.—

‘‘(A) INITIAL REPORT.—Not later than 3

months after the date of enactment of the

Health Care Liability Reform and Quality

Assurance Act of 1995, the Secretary shall

prepare and submit to the Committee on

Labor and Human Resources of the Senate

and the Committee on Commerce of the

House of Representatives a report that contains recommendations for improving the reliability and validity of such information.

‘‘(B) GUIDELINES AND REGULATIONS.—Not

later than 180 days after the date of enactment of the Health Care Liability Reform

and Quality Assurance Act of 1995, the Secretary shall establish guidelines and promulgate regulations providing for the dissemination of information to the public under sections 421, 422, and 423 of the Health Care

Quality Improvement Act of 1986. With respect to such guidelines and regulations the

Secretary shall determine whether information respecting small payments reported

under section 421 shall be disclosed to the

public. In addition, the Secretary shall ensure that such information shall include information on the expected norm for information reported under such section 421 for a

physician’s or practitioner’s specialty. Such

expected norm shall be based on assessments

that are clinically and statistically valid as

determined by the Secretary, in consultation

with individuals with expertise in the area of

medical malpractice, consumer representatives, and certain other interested parties

that the Secretary determines are appropriate.’’.

(c) CONFORMING AMENDMENTS.—Section 427

of the Health Care Quality Improvement Act

of 1986 (42 U.S.C. 11137) is amended—

(1) in subsection (b)(1), in the first sentence, by striking ‘‘Information reported’’

and inserting ‘‘Except for information disclosed under subsection (e), information reported’’; and
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5795

(2) in the heading for the section, by striking ‘‘MISCELLANEOUS PROVISIONS’’ and

inserting ‘‘ADDITIONAL PROVISIONS REGARDING ACCESS TO INFORMATION; MISCELLANEOUS PROVISIONS’’.

Mr. WELLSTONE. Mr. President, I

really look forward to what will be, I

believe, broad-based support for this

amendment.

I say to my colleague from Washington, my understanding is that, hopefully, we will be able to submit amendments tonight, there will be time for

debate on Monday, and sometime Monday we hope there will be votes on

these amendments; is that correct?

Mr. GORTON. Mr. President, the

Senator from Minnesota is correct.

That is what we are trying to do.

Mr. WELLSTONE. Mr. President, let

me simply say that this amendment

deals with the National Practitioner

Data Bank. The data bank contains

really important information on adverse actions that are taken against

doctors, and in some cases information

on actual payments made in malpractice judgements.

Mr. President, the problem is not

most of the doctors in the country;

most of the doctors are very good doctors. The problem is that this information right now is readily available to

managed care plans and hospitals and

medical societies but not available to

consumers.

I have talked with a number of colleagues on both sides of the aisle. I

think that this amendment which I

have worked on for some time now

really is an effort to provide consumers

with this kind of information. I think

it will be well received.

We have done some good work on,

first of all, strengthening the data collection; good work in responding to

some of the concerns that have been

raised by doctors; very good work in

terms of responding to concerns raised

by consumers across the country and

by many consumer organizations.

Mr. President, the idea, of course, is

that we would ask the Secretary of

HHS [Health and Human Services],

within 6 months to develop essentially

a plan to make sure that this information is available to consumers so that

they could have some sense about the

record of doctors who are treating

them.

Unfortunately, sometimes, too many

times—and I have some really heartrendering testimony by citizens in the

country that have, in a tragic way,

been on the receiving end of this—you

will have a doctor who will move, who

will have had an adverse action taken

against him by a State medical society

or hospital as a result of whole patterns of malpractice, and then move to

another State, and sometimes even

change his name. Then the same kind

of egregious practice is committed

again at great harm to consumers. It

happens too often.

There is just simply no reason why in

this, if you will, more highly sophisticated data entry and computer age, we

cannot make this information available to consumers.

I say to my colleagues, that we are

not talking about cases in which somebody has just launched a complaint

against a doctor. We are talking about

cases where there has actually been an

adverse action taken against a practitioner’s license or clinical privileges or

where there has actually been a malpractice payment made with the record

being clear.

So I have submitted this amendment

tonight, and I look forward to the debate on Monday.

In 3 months, the HHS Secretary

comes back to the Senate and then 3

months after that, the Secretary of

Health and Human Services then has to

have promulgated regulations to disclose the information to consumers in

a useable way.

So we have a real opportunity to do

something that I think would be extremely important in preventing malpractice from taking place in the first

place, which is really, I think, the goal

of any kind of reform effort.

I yield the floor. I thank the Senator

from Washington for his courtesy.

Mr. FEINGOLD addressed the Chair.

The PRESIDING OFFICER (Mr. BENNETT). The Senator from Wisconsin.

Mr. FEINGOLD. Mr. President, first

of all, I note with interest the Senator

from Minnesota’s liberal interpretation

of 2 minutes, as well. But it was well

worth it when you listen to him, because I not only agree with his approach in this amendment, but his eloquence on the floor today and throughout this piece of legislation is a very

important part of dealing with the

amendment and dealing with what this

bill is all about. So I appreciate his

courtesy.

AMENDMENT NO. 603

Mr. FEINGOLD. Mr. President, I rise

today to oppose the underlying amendment offered by the junior Senator

from Kentucky. I do so on the same

grounds that I oppose the underlying

legislation.

This sort of liability reform is not

needed, it is not justified, and it is certainly not fair to injured consumers

and patients.

I am very glad I was on the floor a

few moments ago to hear the junior

Senator from West Virginia indicate

his intention to move to table this underlying amendment. Even though we

may disagree on the underlying legislation as a whole, I am pleased to see his

consistent effort to make sure that

this bill does not get completely out of

control and try to revamp our entire

civil legal system when we are supposedly debating one particular aspect

of it.

Mr. President, I know that others

have already spoken out against the

underlying amendment and spoken directly to the question of how justified

and how needed it is.

I would like to add my voice to this

particular chorus and make two points

about this amendment and the direction it is taking us.

First, I have to note with a lot of regret that the first issue raised in the

new Republican Congress dealing with

the tremendous health care dilemma

this Nation is facing has to do with

malpractice and health care liability

reform.

We are not talking about providing

universal health care coverage to all

Americans. We are not talking about

legislation that says if you get sick,

you have a right to see a doctor. We

are not you talking about providing

community-based, long-term care for

the elderly and people with disabilities.

We are not talking about addressing

the skyrocketing costs of prescription

medicines so the elderly will no longer

have to choose between their prescription drugs and their food and heating

bills.

No, Mr. President, we are not talking

about any of these issues that were so

frequently debated by both parties last

year. Everybody said they were important issues that merited our attention,

but none of those have come forward in

these months that we have been in the

104th Congress.

We are not talking about these issues

because it is the belief of some on the

other side that most of our health care

problems are based on the so-called liability crisis faced by doctors and hospitals.

Mr. President, that is not to say it is

not an important issue. That is not to

say it does not deserve our attention in

the broader context of health care reform. But I think that right now the 38

million Americans who do not have

health insurance, if they hear this,

must be saying, ‘‘Are you kidding me?’’

Because there are people who are walking around right now without health

insurance at all. It might be the factory worker who has lost his job and

his health insurance along with it. It

might be the young mother who has a

preexisting condition and is unable to

find an insurer. It might be the young

child who was paralyzed in an automobile accident and whose health benefits have run out because of an arbitrary cap.

Instead of addressing true reforms

that would actually improve some of

these situations, we are instead debating an amendment that would limit the

judicial remedies of those who have

been the victims of malpractice and

negligence by a few bad actors in the

health care profession. Proponents

have compared it to the malpractice

reforms passed by the State of California several years ago, and there seems

to be some disagreement about the actual success of those reforms in terms

of their effect on liability insurance

premiums and also about the overall

costs to the California health care system.

But there is one fact that cannot be

disputed: Despite the so-called liability

reforms in California, there are millions and millions of Californians
S5796 CONGRESSIONAL RECORD — SENATE April 27, 1995

today who lack affordable and adequate health insurance. In fact, a recent study by the UCLA Center for

Health Policy Research shows that

there are 6.5 million Californians without health insurance; 6.5 million people

in one State. There are more uninsured

children, workers, and families in California than there are residents of my

State, and my State is one of the top 20

States in population. Almost 23 percent

of the State of California is currently

uninsured, well above the national average of over 18 percent.

What does this tell us? It tells us

that these kinds of liability reforms

are not that much help to those who

are most at risk in our health care system. And it tells us that suggesting liability reform is beneficial or central

to health care consumers is a little bit

farfetched.

But there is another point I want to

make about this amendment. The supporters of this amendment have tried

to make the argument that such reforms will save many health care dollars and, in the end, will be beneficial

to all involved—health care consumers

as well as doctors and administrators.

This is analogous to the arguments put

forth by supporters of the underlying

legislation, that in the end, the reform

on product liability laws will be of benefit to consumers as well as the manufacturers, who are principally to benefit.

But they certainly are not beneficial

or fair to the victims of negligence in

the health care system. It seems that

just about every day you pick up a

newspaper and there is a story of some

horrible tragedy that was needlessly

caused by negligence, error or even

worse. One recent headline in the

Washington Post reads: ‘‘Hospital Gave

Two Men Fatal Overdoses.’’ This Associated Press story describes how a Boston hospital just recently disclosed an

incident in 1991 where two skin cancer

patients were mistakenly given

overdoses of a treatment drug. They

were, in fact, given three times the recommended dosages. Both men first lost

their hearing, then their livers and kidneys failed. Within weeks, both men

were dead.

According to this news account,

there have been at least 10 chemotherapy dosage errors since 1990 in hospitals located in eastern Massachusetts. Six of those patients have died.

Mr. President, for me, it is the case

of Karin Smith that most reminds me

of the tragedies that often take place

in the health care system and often

needlessly.

Karin Smith was just 22 years old and

an ambitious certified public accountant living in my State in Nashotah,

WI, when she first went to her HMO

concerned about some vaginal bleeding

she had experienced of late. For 3

years, Karin tried to convince her doctors at her HMO that she was sick. She

made 15 office visits and 10 phone calls.

At one point, she had bled for 35

straight days before passing out. During this time, the HMO took three Pap

smears and sent them out to a clinical

laboratory to be analyzed. Unfortunately, the results were misread.

How were they misread? It turns out

that the director of the laboratory had

paid the lab’s technician on a piecework basis for reading Pap smears. In

1989, the technician had read 31,000

slides for the laboratory in question

and another 16,000 slides for a different

laboratory. That is a total of 47,000

slides just in 1989. The American Society of Cytology recommends a maximum of 12,000 slides a year for the sake

of quality control.

So this person had overdone this

practice to the detriment, potentially,

of his or her ability to do the job right

four times more than the recommended

amount of slides.

In 1991, Karin left her HMO and saw a

gynecologist outside of that plan.

Within 2 weeks, her doctor correctly

diagnosed Karin as having advanced

cervical cancer. Last summer, Karin

testified before a Senate subcommittee

looking into the health care problems

facing our country. I would like to read

very briefly from the statement Karin

gave that day, Mr. President. Karin

said:

Although the doctors at my HMO kept telling me I was basically OK, I knew better. My

only alternative was to see a gynecologist

outside of the plan, who immediately suspected I had cervical cancer. His suspicions

were confirmed by a surgeon shortly after

our initial visit.

Had my cancer been diagnosed at the time

the first Pap smear was misread by my HMO,

I would have had a 95 percent chance of survival. However, due to their gross incompetence and shameful errors, I am now

dying.

I am only 28 years old and am told by my

doctors that I will probably not live to see

my 30th birthday. My cancer has spread

through my lymphatic system, from my pelvis to my abdomen, and as of 2 weeks ago to

my neck. The fifth vertebrae of my upper

spine is so completely infiltrated with cancer that at any moment I may become paralyzed.

Since my diagnosis 21⁄2 years ago, my life

has been consumed by one horrifying medical procedure after another. I have endured

three separate courses of radiation, 6 months

of inpatient chemotherapy and seven surgeries. At times, I have laid in a hospital

bed, isolated from my family, friends, even

my husband, because my immune system

was so suppressed that a minor cold could

destroy me, or my frail body was riddled

with infection, or radioactive materials were

implanted into my internal organs and I

writhed in pain. . .

Although the physical treatment has left

me with disfiguring scars from my pelvis to

my neck, the emotional scars cut much deeper. I’m so young, yet my career as a CPA is

over. . . I’m married to a wonderful man, but

I’ll never bear his children. . . Our lives have

been forever changed by this unnecessary

and senseless tragedy.

In addition to myself, several other women

in the Milwaukee area have been forced to

suffer this plight because of the HMO’s gross

failure to provide safe and competent medical care. One woman died last year, she was

only 40. . . Her Pap smear was misread just

like mine. Another woman, whose tests were

also misread is just waiting to die.

Those are Karin’s remarks. In September 1993, Karin Smith wrote an oped piece in the Milwaukee Journal on

the very issue we are debating today,

tort reform. Karin did some extensive

research for this article and found that

in Wisconsin, between the years 1976

and 1988, just four physicians accounted for nearly 18 percent of losses

paid in claims.

In short, Karin discovered a trend in

Wisconsin that reflected a national

pattern, and that pattern is that a few

bad actors in the health care field were

causing a plurality of the problems.

And instead of focusing on appropriate

sanctions for these few individuals, we

are instead considering limitations on

the ability of injured consumers, such

as Karin, to recover damages that will

make them whole once again.

Mr. President, last year I met Karin

Smith in the reception room a few feet

from where I am right now. Today,

Karin Smith is dead. Unfortunately,

Karin’s fight against her cancer has

come to an end. Karin Smith passed

away in March of this year. She was 29

years old.

On April 12, just weeks ago, the district attorney of Milwaukee County

announced that he was filing criminal

charges against the laboratory for the

deaths of Karin Smith, as well as Dolores Geary, a 40-year-old mother of

three who also was a victim of the laboratory’s errors. This is believed to be

the first time that a medical laboratory as opposed to a doctor has been

charged with a crime. In this case the

crime is reckless homicide.

Mr. President, I have spoken out

today because Karin did everything in

her power while she was alive to make

her story known. She wrote letters to

the newspaper; she testified before Congress, and she never stopped fighting

for the rights of victims like herself.

Karin Smith was the victim of not

mere negligence or error but of reckless behavior by a few bad actors in

what is otherwise an honorable and

very dedicated profession.

In the Milwaukee Journal Karin

wrote:

It is a common perception that tort reform

is strictly a battle between doctors and attorneys. What is painfully ignored is that

victims are in the middle of this war. This is

ironic, because these are the very people

whom the tort system was designed to protect.

Mr. President, I could not have said

it any better. It was designed to protect innocent consumers like Karin,

the victims of that negligent behavior.

Remedies should be available to make

injured individuals whole again. It was

not designed in order to protect the

economic interests of those who are

the cause of the injuries.

Mr. President, I think it is relevant

to briefly comment on how the underlying McConnell amendment would

have affected the case of Karin Smith.

For starters, the McConnell amendment would extend the cap on punitive
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5797

damages that is contained in the underlying bill for product liability cases

to cases of medical malpractice. That

means that had she not reached a settlement, a Wisconsin State jury would

have been prohibited by Federal law

from awarding more than $250,000 or

three times the economic harm in punitive damages.

Mr. President, what are Karin

Smith’s economic injuries? I am not

sure, honestly. I do not know what the

earnings of a CPA in her early twenties

are. I know the parties involved should

be punished for their actions, and,

hopefully, with a strong enough sanction that will send a message to others

in the health care system that such

conduct will not be tolerated. In the

end, this decision should be made by a

jury in Wisconsin, comprised of everyday Americans, who for over 200 years

have been capable of administering justice in a fair and equitable manner.

Most importantly, how dare any Member of the U.S. Congress tell a Wisconsin jury that the appropriate punishment for the taking of Karin Smith’s

life must be no more than $250,000?

Where does this Congress get the

right to make that decision? That is

not all this amendment would do. The

extension of the elimination of joint liability for noneconomic damages to

medical malpractice cases is equally

mortifying for individuals who find

themselves in the same predicament

Karin Smith found herself in. I cannot

even begin to imagine, Mr. President,

what Karin’s noneconomic damages

were—her pain, her suffering. How do

you put a price tag or a cap, for that

matter, on Karin’s inability to bear

children and raise a family? How do

you quantify the pain and suffering associated with a cancerous growth that

spreads from your pelvis to your neck?

I am not sure I could. I do not envy any

judge or jury that would be charged

with the responsibility of calculating

that.

But imagine if Karin’s case had gone

to trial, suppose the lab had misread

Karin’s test results and the HMO that

sent the results to the lab were found

to be liable in this case; suppose the

lab became insolvent and was unable to

pay the percentage of noneconomic

damages that it was found to be responsible for? What would happen in

that case under the underlying amendment? Should we watch out for the

best interest of the HMO here and deny

Karin her due compensation for the incredible degree of pain and suffering

she went through? Should we say that

the HMO is partly, if not largely, responsible for Karin’s injury, and they

must shoulder the responsibility for

making sure that Karin and her family

are adequately compensated?

I think when you ask these questions

in terms of the real people involved,

the right answers become quite clear.

Karin Smith was right, Mr. President.

This is not really a battle between lawyers and doctors. The medical profession in this country is outstanding and

should not be maligned because of the

foolish actions of a few in the health

care system. We clearly have a health

care crisis in this country. Millions and

millions are uninsured, costs are skyrocketing, and the health of our Nation

is being compromised. I strongly urge

the supporters of this amendment to

join with those of us who believe that

we need comprehensive health care reform, and we need it now. Only that

kind of real reform will solve the problems that this amendment claims to

address.

Mr. President, I ask unanimous consent that two items be printed in the

RECORD. The first is a statement that

Karin Smith delivered at a Senate

hearing last year, and the second item

is the op-ed piece from the Milwaukee

Journal in 1993.

There being no objection, the material was ordered to be printed in the

RECORD, as follows:

STATEMENT OF KARIN SMITH

My name is Karin Smith and I am grateful

for the opportunity to speak before this subcommittee on an issue that is so crucial to

us all. Today, I want to share with you my

personal story of how an HMO has cost me

my life.

I am a member of a staff model HMO called

Family Health Plan. It’s headquartered in

Milwaukee, Wisconsin and has 105,000 members.

I am 28 years old and have advanced cervical cancer, which is the direct result of a

three year misdiagnosis by my HMO. For

three years, which consisted of 15 office visits and 10 phone calls, I complained about

gynecological problems I was experiencing.

And even though my medical records were

documented with the classic physical characteristics and symptoms of cervical cancer,

no doctor at my HMO ever made the correct

diagnosis.

Because of my continual complaints, the

HMO did perform three biopsies and three

pap smears. All of which indicated cancer.

Yet, all but one were misinterpreted as benign by the lab my HMO had contracted

with.

During those three years, my symptoms

progressed rapidly. . . Minor bleeding became profuse, accompanied by fatigue and

passing out. I was frustrated by the medical

care I was receiving and I was scared by what

appeared to be an obvious deterioration in

my condition. Although the doctors at my

HMO kept telling me I was basically okay, I

knew better. My only alternative was to see

a gynecologist outside of the plan, who immediately suspected I had cervical cancer.

His suspicions were confirmed by a surgeon

shortly after our initial visit.

Had my cancer been diagnosed at the time

the first pap smear was misread by my HMO,

I would have had a 95% chance of survival.

However, due to their gross incompetence

and shameful errors, I am now dying. I am

only 28 years old and am told by my doctors

that I will probably not live to see my 30th

birthday. My cancer has spread, through my

lymphatic system, from my pelvis to my abdomen and as of two weeks ago, to my neck.

The fifth vertebrae of my upper spine is so

completely infiltrated with cancer that at

any moment I may become paralyzed.

Since my diagnosis two and a half years

ago, my life has been consumed by one horrifying medical procedure after another. I

have endured three separate courses of radiation, six months of inpatient chemotherapy

and seven surgeries. At times I have laid in

a hospital bed, isolated from my family,

friends, even my husband, because my immune system was so suppressed that a minor

cold could destroy me, or my frail body was

riddled with infection or radioactive materials were implanted into my internal organs

and I writhed in pain.

I have spent countless days and nights nauseated and sick from both the radiation and

the chemotherapy. The chemotherapy alone,

caused me to vomit almost every day for the

six months I was in treatment. Every third

week I would be admitted into the hospital

for six days where drugs that made me so

terribly sick would flow through my body. I

was bald for nearly a year and all of my activities were severely restricted.

Next week, I am scheduled to begin radiation to the left part of my neck and under

my left arm. One can only imagine, in fear,

what the side effects to this treatment will

be . . . And as my last hope, I am currently,

awaiting news from my doctors to find out

whether or not, I am a candidate for a bone

marrow transplant.

Although the physical treatment has left

me with disfiguring scars from my pelvis to

my neck, the emotional scars cut much deeper. I’m so young, yet my career as a CPA is

over . . . I’m married to a wonderful man but

I’ll never bear his children . . . My parents

will outlive their youngest child . . . This

hasn’t only affected me. This has shattered

the lives of everyone around me. How does

one explain this to my husband, my parents,

my sister and brother, my friends . . . All of

our lives have been forever changed by this

unnecessary and senseless tragedy.

At this point, my personal medical future

is plagued by this nightmare. Now, I feel I

must focus my concern on the medical future

of our country. If we allow HMO’s to be the

foundation of the proposed medical system,

we are encouraging one of the most important professions of our country, to put the financial interests of their bottom line before

the medical needs of their patients.

It was no coincidence that the lab which

was contracted by my HMO performed inferior work, the owner was on the HMO’s board

of directors and in order to retain the HMO’s

business, he was forced to ‘‘meet or beat’’ lab

prices from the competition. I think that’s

what President Clinton now calls ‘‘managed

competition . . .’’ ALl of the contracts will

be negotiated this way.; It’s a system that

encourages the lab to provide services at artificially low prices, which leads to lack of

quality control and excessive work loads.

To add insult to injury, the technician who

misread all of my pap smears was reading 5

times the federally recommended number of

slides. She also worked at, as many as, four

other labs in Milwaukee at the same time.

And when she was fired from my HMO’s contracted lab for falsifying records in 1991, the

HMO hired her directly to supervise their

new in house gynecological laboratory.

In addition to myself, several other women

in the Milwaukee area have been forced to

suffer this plight because of the HMO’s gross

failure to provide safe and competent medical care. One woman died last year, she was

only 40 . . . her pap smear was misread just

like mine. Another woman, who’s tests were

also misread is just waiting to die.

We can’t change my future. But I can give

you a look into your own. I am an example

of what health care in this country will become as proposed by the Clinton administration and it horrifies me. I have experienced,

first hand, the overwhelming lack of continuity of care, lack of communication, lack

of responsibility, lack of accountability and

lack of humanity which are the hallmarks of

managed care plans in this country today.

We all know that there is a serious health

care crisis in this country . . . no one should
S5798 CONGRESSIONAL RECORD — SENATE April 27, 1995

be denied access to care. We need a realistic,

rational health care system that will prevent

financially self interested groups from continuing to prey on unsuspecting medical consumers. We need a health care system that

allows choice, provides accountability and

incorporates a serious medical malpractice

prevention program. As a victim of malpractice, I implore you . . . please do not let

this administration strip away the rights of

victims like me. Please let my HMO experience be your guide . . . Understand that

managed care is part of our health care problem . . . It is not the solution.

[From the Milwaukee Journal, Sept. 15, 1993]

TORT REFORM ISN’T SOLUTION TO EASING

HEALTH CARE WOES

(By Karin Smith)

The President’s health care proposal is

going to be released within the next few

weeks. It is well known that tort reform will

be included in his package. There is speculation that the proposed plan will limit painand-suffering awards for medical malpractice

victims to $250,000. This would not only be

unconstitutional, but grossly unfair.

Let me explain.

Five years ago, I was a healthy, 22-year-old

woman. Today, I am a victim of both cervical cancer and medical mismanagement. In

1988, I belonged to Family Health Plan

(FHP), a Milwaukee-based health maintenance organization. When I began to experience vaginal bleeding, I sought care from

FHP.

Between June of 1988 and May of 1991, my

symptoms gradually progressed from minor

bleeding to profuse bleeding, to fatigue and

passing out. During this time, I made nearly

20 calls to doctors within my HMO to complain of the problems. Also during this time,

three Pap smears and three biopsies were

performed.

Unfortunately, my cries for help were not

heard, and all of my laboratory tests, with

the exception of one Pap smear, were misread. When I left FHP in May of 1991 and

sought the opinion of a gynecologist outside

of that plan, my diagnosis was made within

two weeks.

Since my diagnosis two years ago, I have

undergone five surgeries, three separate twomonth courses of radiation and six months of

chemotherapy. I was recently informed that

unless I have radical surgery this fall to remove a part of my spine and replace it with

a piece of my rib, I will probably be paralyzed by spring.

Because of the three-year delay in diagnosis, my chance for cure has dropped from

95% to around 10%. Even if I am fortunate

enough to survive this tragedy, I will be

plagued with chronic health problems and a

lifetime of uncertainty.

Few would disagree that this is an egregious case that has led to needless emotional

and physical pain. Certain legislators and

health care specialists believe that my noneconomic damages should be limited to

$250,000. The state Senate has passed a bill to

that effect.

According to the Health Care Financing

Administration, national health care expenditures total $675 billion. The American

Medical Association says doctors pay $5.6

billion in medical insurance premiums. As

an accountant, I can easily calculate the

cost of malpractice premiums to be less than

1% of all health care expenditures. Even the

Congressional Budget Office has said that

changing the medical liability system will

have little effect on total health spending.

Furthermore, several states have already

placed caps on pain-and-suffering awards.

History has shown this has not reduced malpractice premium expenses. The reality is

that very few plaintiffs are awarded high

amounts. In Wisconsin, almost 70% of claimants have received no payment at all, and

only 85 claims have ever exceeded $200,000.

It is important to mention that our country could save an enormous amount of

health care dollars by adopting a strict national policy for disciplining doctors.

In Wisconsin, between 1976 and 1988, the

top 10 physician defendants accounted for

2.4% of the 2,904 claims filed and 23% of the

total payments made. During this time, four

physicians were involved in more than one

claim over $400,000. The four physicians accounted for 17.8% of all losses paid in that

year. Clearly, a small percentage of doctors

is responsible for a large portion of claim

dollars.

It is common perception that tort reform

is strictly a battle between doctors and attorneys. What is painfully ignored is that

victims are in the middle of this war. This is

ironic, because these are the very people

whom the tort system was designed to protect.

The issue of capping pain-and-suffering

awards comes down to one question: Do we

allow all citizens the right to a jury trial at

which their peers decide a fair level of compensation for pain and suffering, based on

the extent of the individual’s damages and

the facts?

If the answer is no, we are violating the

constitutional rights of the most seriously

injured victims, while protecting the careers

of the most grossly negligent doctors.

Mr. FEINGOLD. I thank the Chair

and I yield the floor.

Mr. GORTON. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. DOLE. Mr. President, I ask unanimous consent that the order for the

quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. DOLE. Mr. President, I advise

my colleagues that it is our hope to

have an agreement here in the next few

minutes. And if the agreement is

reached, then there will be no more

votes this evening and no votes on

Monday. There will be a number of

votes starting at 11 o’clock on Tuesday

morning, maybe as many as four or

five.

So I indicate to my colleagues that I

do not believe there will be any more

votes this evening. We will know for

certain in matter of minutes.

Mr. President, I suggest the absence

of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The bill clerk proceeded to call the

roll.

Mr. DOLE. Mr. President, I ask unanimous consent that the order for the

quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

UNANIMOUS-CONSENT AGREEMENT

Mr. DOLE. Mr. President, we have

freached an agreement on the medical

malpractice amendments. It has been

cleared by the Democratic leader, Senator DASCHLE. I will now read the consent.

I ask unanimous consent that all

amendments regarding medical malpractice only be in order for the duration of Thursday’s session of the Senate and Monday’s session of the Senate, except for one amendment each,

which may be offered by the majority

and minority leaders, or their designees.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. DOLE. Mr. President, I further

ask that any votes ordered on or in relation to the pending Thomas amendment, or on or in relation to the

Wellstone amendment, and any other

second-degree amendments that may

be offered to the McConnell amendment occur in sequence at 11 a.m. on

Tuesday, May 2, and that the final vote

in sequence be on or in relation to the

McConnell amendment No. 603, as

amended, if amended.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. DOLE. For the information of all

Senators, this agreement means that

any Senator who wishes to offer an

amendment regarding medical malpractice must offer and debate that

amendment today and/or Monday, and

those votes will occur beginning at 11

a.m. on Tuesday, and thereafter medical malpractice amendments would no

longer be in order to the bill except for

an amendment that may be offered by

each leader or their designee. I assume

that would be the managers of the bill.

So having reached that agreement, I

can announce there will be no more

votes this evening. The Senate will not

be in session tomorrow because both

the Republicans and the Democrats

have conferences tomorrow.

The Senate will come in at noon on

Monday, be back on the bill on Monday. We may come in at 11 a.m. for

morning business. There will be no

votes on Monday, but we expect a lot of

debate on Monday. And then rollcall

votes will start at 11 a.m. on Tuesday.

Mr. GORTON. Mr. President, will the

majority leader yield?

Will the Senate come in on Tuesday

and have any time before 11 o’clock on

Tuesday in which Members can speak

to their amendments?

Mr. DOLE. I would be happy to make

that arrangement. In other words,

come in at 10:30 and speak for 5 minutes on amendments which we have already discussed. They can offer amendments on Monday.

Mr. GORTON. They can offer amendments on Monday. But I suggest to the

leader that there be at least an hour

before 11 o’clock for Members to summarize their amendments.

Mr. DOLE. We set aside the hour between 10 and 11 to discuss any of the

amendments. We try to divide it up so

everybody is treated fairly. We may

come in at 9:30 for a half hour of morning business.