Date: 2005-07-28
Speaker: GENE GREEN (democrat)
Chamber: H
State: Texas

Mr. Speaker. I rise in opposition to H.R. 5. legislation to limit noneconomic damages that victims may seek when injured by medical malpractice. My primary objection to this bill stems from the Congress imposing its will on the states regarding an issue that rests squarely within State jurisdiction. The states are responsible for licensing medical professionals and for regulating the insurance Industry. In fact. the states have had jurisdiction over medical malpractice for more than 200 years. and it should continue to be that way. This legislation would unnecessarily preempt the laws of states that have taken measures to address this issue. At least 30 states have enacted laws with regard to noneconomic damages. so it is unconscionable that anyone would argue that the medical malpractice issue is trapped in a regulatory vacuum. In 2003. the State of Texas saw a need for action on medical malpractice and enacted a cap on noneconomic damages. Having served in the Texas State Legislature. I know firsthand that state legislatures are best positioned to determine whether and how to address the medical malpractice siOdation in their individual states. The State of Virginia enacted a different cap that best balances the needs of consumers. physicians and health care institutions in that particular state. The situation is different in each state. and a Washingtonknowsbest approach ignores the hard work and tough decisions that individual states have made. On a substantive level. I oppose this legislation based on two provisions with significant flaws. First. the bill includes a firm $250.000 cap on noneconomic damages without providing for inflation adjustment in future years. While that figure mirrors Californias MICRA law. it is important to recognize that Californias cap has not been adjusted for inflation in approximately 30 years. Further. Californias law was crafted during a time when a $250.000 cap would have sufficed for all but the most egregious jury awardswhich. I might add. the judge has. the discretion to overturn. That is certainly not the case in the 21st century. and I object to the Congress placing a price on pain and suffering. A cap on noneconomic damages would create a onesizefitsall figure for each and every case of medical malpractice. Members of Congress do not hear the details ofeach medical malpractice case. Members of juries do. which is why they are best equipped to determine the appropriate noneconomic damages based on the facts of each case. This legislation also contains a dangerous provision that would provide drug companies and device manufacturers with an affirmative defense against punitive damages as long. as their products had FDA approval. This provision presupposes that FDA approval is an airtight process whose integrity need notand legally cannotbe questioned. Considering R7000 cc the FDAs recent track record with regard to Vioxx and other pharmaceuticals that have been removed from the pharmacy shelves. it is clear that the integrity of the FDA approval process has been compromised. Until some serious reforms are implemented at the FDA. the FDA stamp of approval should not provide any company with an affirmative defense against punitive damages. Such a provision would only provide drug and device manufacturers with even less of an incentive to report known adverse events before their products go to market and ensure that their products are as safe as possible. Given these concerns. I would urge my colleagues to oppose this bill and leave this issue to the states. which have clear jurisdiction. as well as the ability and willingness tohandle this delicate issue.