Date: 2012-03-21
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. I thank the gentleman for yielding . The idea that 15 unelected individuals on the Independent Payment Advisory Board have been empowered by the socalled Patient Protection and Affordable Care Act to ration health care for seniorsand thats for all seniorsis as Orwellian as these titles crafted by the previous Congress to divert attention from whats really being done here. Delegating such authority to a government board to make such decisions with such a dramatic impact on the health care alternatives available to Medicare recipients raises the most serious ethical concerns about respect for the dignity of our seniors. This is the unfortunate consequence of a world view which favors the notion of bureaucratic expertise and efficiency as a solution to the challenges facing our health care system today. The purpose of providing quality health care to our Nations seniors is simply incompatible with the idea that the delivery of health care services can be achieved through some sort of algorithm contrived by a panel of experts. Rather than empowering seniors to play a more active role in their own health care decisions. the IPAB moves in the opposite direction by empowering an unaccountable government panel to make these decisions. In this regard. the inclusion of legislative language to repeal IPAB could not be better placed than with a medical liability reform bill. for IPAB is itself. per se. malpractice. Now. H.R. 5 contains many important reforms concerning our health care litigation system. These health care reforms are modeled after my own State of Californias Medical Injury Compensation Reform Act. better known as MICRA. This important initiative was signed into law over three decades ago by then- and now. again. California Governor Jerry Brown. I practiced under this law for several years. I practiced under the law that preceded MICRA. I did a good deal of medical malpractice defense in the courtroom. I appeared before juries. before judges. I settled cases. I had the opportunity to defend doctors and hospitals. About 90 percent of the cases I did were on the defense side. about 10 percent on the plaintiffs side. I believe I had the first successful medical malpractice suit against an HMO in the State of California. I had an opportunity to view the system close up. And the fact of the matter is. without the MICRA reforms. the California medical system. the health care system would have collapsed. We had doctors leaving the State of Californiaparticularly in specialties such as obstetrics and gynecology. neurosurgery. anesthesiologymoving to other States because the premiums that were required to be paid by our doctors had become so exorbitant that they either had to leave the State or no longer be able to practice medicine. Information received by our Judiciary Committee from the National Association of State Insurance Commissioners indicates that since 1976. when it was adopted. Californias medical professional liability premiums have risen at less than half the pace of the rest of the country. While I would caution that MICRA must not be perceived as a silver bullet. it was. nonetheless. an important step forward taken by our State and a sound model for reform. This is. once again. evidence that as laboratories of democracy. our States more often than not serve as incubators of reform. At the same time. I do believe that it is important to recognize that the American legal system and our civil justice system. in particular. contains vagaries unique to each of the States which operate within the context of a system of federalism. In this regard. we need to be cautious on the Federal level in making assumptions about the impact of our actions. Even in California. itself. the effort to adopt a Federal medical liability reform statute has raised some questions about possible unintended consequences. Even though one aspect of the impetus behind H.R. 5 is to bring relief to medical practitioners from the trap of defensive medicine. as suggested by the chairman of our committeeand I do believe that is truephysicians are. unfortunately. expressing some concerns over some of the provisions contained in H.R. 5. Specifically. the California Medical Association. while they support getting rid of the board as we previously discussed. have expressed some opposition to the fairshare rule contained in section 4(d) of the HEALTH Act. They have expressed that the fairshare rule in H.R. 5 will preempt Californias law and put full recovery by injured patients at risk. They inform us. "As written. the fair share rule will dramatically increase the potential for physicians to face enforcement proceedings against their personal assets. This would force physicians to purchase increased medical professional liability insurance coverage. which will significantly increase liability premiums in California for physicians." Secondly. the California Medical Association has expressed "serious concerns with granting complete immunity from punitive damages to medical produce and device manufacturers. distributors. and suppliers." They state. "We believe this will force plaintiffs to look only to physicians and other providers to seek relief and will significantly increase physician exposure and liability costs." So Im somewhat on the horns of a dilemma here. I do believe that we absolutely. as the physicians of the California Medical Association believe. ought to rid ourselves of the Independent Payment Advisory Board for fear that its implementation will. in fact. interfere with the doctorpatient relationship. interfere with the availability of medical care. interfere with the availability of physicians to seniors and others. But they have expressed some concerns that we have to give other States the benefit of MICRA. And I understand some of their concerns. I think we may be very well able to address that in further language. Although it is my intention to vote for passage of H.R. 5. my hope is that before it would return to us from the Senate. we would specifically address the concerns raised by the physicians from my State. The necessary repeal of IPAB is an important reform. Some of these others contained in the further section of the health care act warrant support. But I do believe we need to have some changes. and I would look forward to those changes in a conference report or any bill which is returned to the body by the Senate. I would like to say this. that for someone who practiced law for a number of years in the area of medical malpractice. with doctors and hospitals. and saw what a failure to limit noneconomic damages was doing to the availability of health carenot just the cost of health care. but the availability of health care in my home StateI do believe MICRA is a model that ought to be replicated by other States in the Union. I do believe that the facts are in. Over 30 years. weve been able to see that it has improved access to health care. improved the number of physicians. particularly in difficult specialties. and it has brought down the overall cost of premiums and. therefore. the cost of medical care in my State. The idea that somehow medical malpractice premiums have no effect either on the cost of care or the accessibility of care flies in the face of the experience of 30 years in my home State of California.