May 1, 1995 CONGRESSIONAL RECORD — SENATE S5873

that, we can save a lot of money and

produce a better program.

We also need to address other entitlements. For example, the Federal retirement program is one of the largest

categories of entitlements. It cannot

escape reform as we undertake a fair

and balanced approach to entitlement

reform. The American taxpayers bear

the full cost of Federal retirees’ annual

COLA adjustments, a feature that virtually no private pension plan shares

and that was not part of the Government’s original retirement contract

with Federal workers, and we must do

something to control that growth.

There are innumerable—literally

hundreds—of smaller entitlement programs, including some popular ones in

the area of agriculture, unemployment

compensation, and a variety of others.

But all of these should be put under the

microscope of review and we should ask

the questions: Do they work? Should

they continue to exist? Can they be improved? If we ask those questions, we

will find in all instances the answer is

they can be improved, and they can be

delivered more efficiently and for less

cost.

While balancing the budget will

mean examining the operation of some

sacred political cows, it can be done.

While in some cases we will decide that

the Federal Government just cannot

afford to continue funding some activities, in most cases entitlement reform

will simply result in better Government being delivered, probably, to

more people.

Unfortunately, however, it appears

that the Congress will have to go it

alone. The President is offering absolutely no help. In fact, as the CBO report and the President’s recent appearances tell us, his actions seem to be

just making things worse. Just when

the national predicament calls out for

strong fiscal leadership, the President

is doing exactly the opposite. He is

telling every interest group he appears

before that they deserve more money.

He just told the Iowa farmers that they

need to spend more money on pigs,

more pork. It really is outrageous.

Still, Congress must forge ahead. We

must act to preserve the Medicare system so our seniors are not faced with a

bankruptcy, which cannot be debated,

and which has been predicted by their

trustees, so that they will have an insurance trust fund that is there for

them and for the next generation. We

must act to preserve our children’s future by moving to balance the budget

by the year 2002.

These will not be an easy 2 months as

we go through the process of accomplishing these goals. We will have to

make serious and difficult decisions.

But I hope this Congress will not take

the course that the President has and

walk away from the matter. We need to

undertake this issue of bringing solvency into the Medicare fund for the

benefit of our seniors. We need to undertake balancing the budget for the

benefit of our children.

Mr. President, I yield the floor.

The PRESIDING OFFICER. The Senator from Minnesota.

Mr. WELLSTONE. Mr. President, I

HEALTH CARE

fknow the Senator from Arizona is here.

He is going to wish to lay down an

amendment and speak about it. I have

an amendment that I laid down on

Thursday that I want also to speak on.

But I thought we might stay in morning business just for a few minutes and

I might respond to my colleague from

New Hampshire and then we will go

back on the bill. I do not come with

any well-rehearsed remarks, but as I

was listening to the presentation of my

friend from New Hampshire, I did want

to respond in a couple of different

ways.

First of all, I was immersed in the

health care debate in the 103d Congress. Of course, at the very end, we

were deadlocked and there was, on the

part of a good number of Senators, I

think, a very strong commitment to

blocking any legislation from being

passed and therefore we were not able

to pass any kind of health care reform.

I point out to my colleague that many

of us made the argument that the only

way we were going to be able to contain costs—and that included looking

at Medicare and Medicaid, which are

two very big Government programs—

was within the context of overall

health care reform.

I take exception to what I heard my

colleague from New Hampshire saying

in a couple of different areas. First of

all, let me just be crystal clear. I think

the proposition that on the one hand—

at least some Senators have proposed

this, and many in the House of Representatives have proposed this—we go

forward with broad-based tax cuts

which amount to about $700 billion

over the next 10 years, of revenue we

would have to make up, and on the

other hand go forward with cuts—some

say just decreasing the rate of increase

of Medicare—I think that proposition

just will not be credible. It will not be

credible with a lot of senior citizens,

but that is not even the point. It will

not be credible with their children and

their grandchildren.

You cannot, on the one hand, say you

are for deficit reduction and then move

forward on broad-based tax reduction

to the point where you have to figure

out how to offset $700 billion before you

even go forward with deficit reduction,

and at the same time be proposing fairly draconian cuts in Medicare.

I have said all along I actually feel

quite credible on this issue because

from the very beginning of this debate

about balancing the budget by 2002 I

have raised the question, ‘‘Why 2002?’’ I

have raised the question of how you

can do it without separating capital

and operating budgets. I have tried to

be intellectually honest about this. I

have talked about dancing at two weddings at the same time.

I have said to citizens in Minnesota,

beware of any breed of politician—

Democrat, Republican, Independent—

and others who say: On the one hand,

you are going to have broad-based tax

cuts, on the one hand you are not going

to cut the military budget, on the one

hand you are going to pay interest on

the debt because we have to, on the one

hand Social Security is going to be put

in parenthesis and not touched, on the

one hand now we are not going to really cut Medicare—but we are going to

balance the budget, cut $1 trillion, by

2002.

But students, it is not going to be

higher education. Veterans, do not

worry. And children, it is not true that

we are going to cut the nutrition programs. The arithmetic of this does not

add up. My colleagues are discovering

that they are in this context—talking

about balancing the budget—are going

to have to propose deep and significant

cuts in Medicare and Medicaid. Please

remember about 75 percent of Medicaid

payments do not go to AFDC mothers,

or what we view as welfare, but actually go toward long-term care for the

aged. It is not just older people we are

talking about. We are talking about

older people; we are talking about their

children and grandchildren; we are

talking about families in this country.

Now we have a new wrinkle where

colleagues come out and say the trust

fund is in trouble, and they talk about

this as an actuarial issue. This is a

benefits program. You can use all of

the insurance language you want to

about trust funds and talk about actuarial assumptions and all the rest. The

fact of the matter is that in 1965 we

passed the Medicare and Medicaid Programs in the U.S. Congress. It was an

inadequate installment of universal

coverage but nevertheless it was significant. From my family having had

two parents with Parkinson’s disease,

let me just say one more time that

Medicare, imperfections and all, was

probably the difference between disaster and being able to at least live the

end of your lives with some dignity.

Both my mother and father have

passed away.

Even so, with Medicare, Mr. President, elderly people pay four times as

much out of pocket as people who are

not elderly. Please remember one more

time, since we have this stereotype of

older Americans being rich and not

having to really worry about any economic squeeze, that the median income

for men 65 years of age and older is

$15,000; for women it is about $8,000.

This is no small issue.

Mr. President, last Congress we

talked about how we could move forward on long-term care in such a way

that we could have more home-based

care. We, I think, reached some consensus, except, when we got to the point

where we will have to dig into our

pockets and figure out how to fund it,

that elderly people and people with disabilities ought to be able to live as
S5874 CONGRESSIONAL RECORD — SENATE May 1, 1995

near in normal circumstances as possible with dignity. They ought not to

have to go to institutions when they

could live at home. We put real emphasis on home-based care with a wonderful program in Minnesota, a block

grant program not adequately funded.

But we are funding it. It is wonderful.

It makes all of the difference in the

world, and it enables someone who is

elderly to live at home. But we did not

take any action on that.

We were also talking about some legislation. I introduced the single payer

bill covering the catastrophic expenses.

Medicare does not cover the catastrophic expenses of what happens to

you when you are in a nursing home.

Nor does it cover prescription drugs.

My colleagues are not in any of these

proposals talking about any of that.

They are talking about cutting Medicare. And they want to make the argument it is not really a cut, that it is

just a lessening of the rate of increase.

Well, why is it such a big surprise to

my colleagues that a larger and larger

percentage of our population are 65

years of age and over, and a larger and

larger percentage of that population

tends to be in their eighties? Of course,

it costs money. That is what Medicare

is about; the commitment to elderly

citizens, and that we will fund a decent

level of health care for elderly people

in our country. This should not come

as any shock. And it is a benefits program. It is a contract. It is a commitment we made.

Mr. President, there are, I think,

steps that we can take. In some cities

and some States you find that the cost

of providing coverage is much greater

than, for example, what it is in Minnesota. I am sure there are ways that

we can move toward more efficiency.

But, Mr. President, I must say that

all of a sudden this discussion about

now what we are going to do is talk

about the trust fund, we are not going

to really say this is part of deficit reduction although it was always proposed before as part of deficit reduction. And in addition, we are going to

give people all of these kinds of options. So they are really not options

because managed care is the place in

which you can have the savings but in

many parts of the country, especially

outside your metro areas, it is not a

real option. And in addition, we say, if

there are any savings by enabling people to develop to purchase vouchers or

all the rest, then in fact we will be OK.

But, if they are not, then we are going

to have to make the deep cuts. There

are not going to be any because, if

there are savings, by definition they go

to those individuals. They do not go to

the Government. We are talking about

public expenditures here and how to

cut down on the public expenditures.

So I think that some of my colleagues are trying to dance at two weddings at the same time. There was all

this bold rhetoric about how we were

going to balance the budget by 2002, no

question about it. I saw projections of

quotes from colleagues that we were

going to be cutting Medicare by $400

billion between now and the year 2002.

That figure has gone down. But make

no bones about it. That is what is being

proposed.

Mr. President, I think what we ought

to do is move forward on good health

care reform, and there are three critical ingredients to that. First, universal

coverage; and I promise my colleague

from Arizona that I will be finished

within 2 minutes. Second, cost containment—and, by the way, the Congressional Budget Office said really the

way you can contain costs is you put

some sort of limit on what insurance

companies can charge. Third, we need

to deliver care in some of our underserved communities like, for example,

rural areas where we have to put much

more emphasis on primary care, on

family doctors, on advanced nurse

practitioners, on nurses, getting health

care out of the communities backed up

by specialization.

It is in that context that we contain

Medicare costs. But, if we just target

Medicare, you are going to have the

same irrational charge shifting. You

are going to have true rationing by

age, income, and disability. You are

going to be hurting a lot of citizens in

this country. And, we are going to be

moving away from a basic commitment

that we made in 1965.

So, I look forward to what I think is

going to be an extremely important debate but I did want to respond to my

colleague from New Hampshire. I am

sorry he had to leave.

COMMONSENSE PRODUCT LIABILITY AND LEGAL REFORM ACT

fThe Senate continued with the consideration of the bill.

Mr. KYL. I thank my colleague.

Mr. President, at this time, I ask

unanimous consent to lay aside the

pending amendment.

The PRESIDING OFFICER. Without

objection, it is so ordered.

AMENDMENT NO. 611 TO AMENDMENT NO. 603

(Purpose: To establish a limitation on

noneconomic damages)

Mr. KYL. Mr. President, I send an

amendment to the desk and ask for its

immediate consideration.

The PRESIDING OFFICER. The

clerk will report.

The bill clerk read as follows:

The Senator from Arizona [Mr. KYL] proposes an amendment numbered 611 to amendment No. 603.

Mr. KYL. 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:

At the appropriate place, insert the following new section:

SEC. . LIMITATION ON NONECONOMIC DAMAGES.

(a) IN GENERAL.—With respect to any

health care liability action, in addition to

any award of economic or punitive damages,

a claimant may be awarded noneconomic

damages, including damages awarded to

compensate the claimant for injured feelings

such as pain and suffering, emotional distress, and loss of consortium.

(b) LIMITATION.—The amount of noneconomic damages that may be awarded to a

claimant under subsection (a) may not exceed $500,000. Such limitation shall apply regardless of the number of defendants in the

action and the number of claims or actions

brought with respect to the injury involved.

(c) NO DISCLOSURE TO TRIER OF FACT.—The

trier of the fact in an action described in

subsection (a) may not be informed of the

limitation contained in this section.

(d) AWARDS IN EXCESS OF LIMITATION.—An

award for noneconomic damages in an action

described in subsection (a), in excess of the

limitation contained in subsection (b) shall—

(1) be reduced to $500,000 either prior to

entry of judgment or by amendment of the

judgment after entry;

(2) be reduced to $500,000 prior to accounting for any other reduction in damages required under applicable law; and

(3) in the case of separate awards of damages for past and future noneconomic damages, be reduced to $500,000 with the initial

reductions being made in the award of damages for future noneconomic losses.

(e) PRESENT VALUE.—An award for future

noneconomic damages shall not be discounted to present value.

Mr. KYL. Mr. President, this is the

noneconomic damages limitation

amendment that many of us have been

talking about for some time. I indicated earlier this morning that I would

be introducing it. It works in tandem

with the limitation on lawyer’s fees to

ensure that the victims of negligence

are properly compensated and that neither the public needs to end up continuing to pay this tort tax that we

talked about earlier nor that lawyers

or others in the system become enriched at the expense of the victims of

negligence.

This particular amendment would

place a limitation of $500,000 on noneconomic damages that are awarded to

compensate a claimant for pain, suffering, emotional distress, and other related injuries.

Mr. President, every day in America,

physicians take care of over 9 million

patients. These are professionals who

are dedicated to the service of their fellow citizens. They do a tremendous job.

They serve in times of crisis and natural disasters often at great personal

risk. A good example is the heroic service of the doctors in the aftermath of

the bombing in Oklahoma City.

The medical profession is dedicated

to doing everything possible to ensure

that the practice of medicine conforms

at all times with both Government

rules and regulations and, of course,

with the high standards that are inherent in the profession itself.

But physicians are not God. They are

human like all the rest of us, and occasionally mistakes are made and sometimes patients suffer injuries as a result. When this occurs, injured patients

must be awarded full and fair compensation for their injuries should they

choose to pursue a legal remedy. But in

today’s litigious climate, roughly onethird of all physicians, 50 percent of all