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Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2005

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Location: Washington, DC


HELP EFFICIENT, ACCESSIBLE, LOW-COST, TIMELY HEALTHCARE (HEALTH) ACT OF 2005 -- (House of Representatives - July 28, 2005)

Mr. SMITH of Texas. Mr. Speaker, pursuant to House Resolution 385 and as the designee of the majority leader, I call up the bill (H.R. 5) to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system, and ask for its immediate consideration.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I strongly support the HEALTH Act, which is identical to two other bills that passed the House during the last Congress. The HEALTH Act is modeled on California's Medical Injury Compensation Reform Act, called MICRA, which has resulted in California's medical liability premiums increasing only one-third as much as they have in other States.

MICRA's reforms, which are included in the HEALTH Act, include a $250,000 cap on noneconomic damages; limits on the contingency fees lawyers can charge; a fair-share rule by which damages are allocated in direct proportion to fault; reasonable guidelines, but not caps, on the award of punitive damages; and a safe harbor from punitive damages for products that meet FDA safety requirements.

According to the nonpartisan organization Jury Verdict Research, the median medical liability award has more than doubled in the last 7 years to $1.2 million.

Doctors and other health care providers are being forced to abandon patients and practices, particularly in high-risk specialties such as emergency medicine, brain surgery and obstetrics and gynecology.

Women are particularly hard hit, as are low-income neighborhoods and rural areas. According to a report by the Department of Health and Human Services, "Unless a State has adopted limitations on noneconomic damages, the cost of these awards for noneconomic damages is paid by all other Americans through higher health care costs, higher health insurance premiums, higher taxes, reduced access to quality care, and threats to quality of care."

Many doctors are no longer available to treat patients. Mary Rasar's father did not get the medical care he needed following a car accident last summer, because the only trauma center in his area closed for 10 days due to medical liability costs. Her father died from those injuries.

Melinda Sallard, a 22-year-old mother, was forced to deliver her own baby on the side of the road after her physician stopped delivering babies and her hospital's maternity department closed because of rising medical liability costs.

Leanne Dyess' husband Tony sustained head injuries in a car accident and could not find a neurosurgeon to treat him because rising liability costs had forced insurers to drop their coverage. Tony was airlifted to a hospital in another State that still had neurosurgeons, but 6 hours had passed, and it was too late. As a result Tony suffered permanent brain damage.

In my hometown, the CEO of San Antonio's Methodist Children's Hospital has seen his premiums increase 400 percent. He has been sued three times. In one case the only interaction with the person suing was that he stepped in her child's hospital room and asked simply, how is your child doing? Each jury cleared him of any wrongdoing, and the total amount of time all three juries spent deliberating was less than an hour. But the doctor's insurance company spent a great deal of time, effort and money in his defense.

It is no surprise the American College of Emergency Physicians found that large majorities of both rural and urban hospitals had inadequate on-call specialists coverage. And there has been a 40 percent reduction in medical students entering obstetrics and gynecology.

According to the chair of the OB/GYN department at the Yale School of Medicine, "Within 2 years we will be faced with a very real possibility of having to shut down our high-risk obstetrical practice, a practice that cares for the sickest mothers in the State."

As for legitimate cases of medical malpractice, nothing in the HEALTH Act prevents juries from awarding very large amounts to victims, including children. The HEALTH Act does not limit in any way an award of economic damages to injured victims. Economic damages include lost wages or home services, medical costs, the cost of pain-reducing drugs, therapy and lifetime rehabilitation care.

In fact, in just the last few years, juries in California have awarded the following damages to medical malpractice victims: An $84 million award to a 5-year-old boy, a $59 million award to a 3-year-old girl, a $50 million award to a 10-year-old boy, a $12 million award to a 30-year-old homemaker, and a $27 million award to a 25-year-old woman. Other examples include damages of Ð$7, $22, $25, $30, and $49 million, all in just the last few years. Awards of these same sizes would be available under the HEALTH Act. Researchers at the Harvard School of Public Health stated that "we found no evidence that women or the elderly were disparately impacted by the cap" on noneconomic damages in California under MICRA.

The HEALTH Act will work. According to the Congressional Budget Office, "Under the HEALTH Act, premiums from medical malpractice insurance ultimately would be an average of 25 percent to 30 percent below what they would be under current law."

The American people support the HEALTH Act. The Gallup poll found that 72 percent of those surveyed favor a limit on the amount patients can be awarded for noneconomic damages. The HEALTH Act also respects the judgments of State legislatures because it does not preempt any State law that limits damages, be they higher or lower than the limits provided for in the HEALTH Act.

Finally, this legislation is supported by some 200 organizations, including the American Medical Association, the American Academy of Pediatrics, the American College of Emergency Physicians, the American College of Nurse Practitioners, the American College of Obstetricians and Gynecologists, and the Council of Women's and Infant's Specialty Hospitals.

Mr. Speaker, for the sake of those who need health care, for the sake of health care providers who simply want to practice their professions, please join me and these selfless organizations in supporting the HEALTH Act.

Mr. Speaker, I reserve the balance of my time.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, opponents of reform claim that the current crisis is driven by a small number of so-called bad doctors. But as Yale Medicine Professor Dr. Robert Auerbach has explained, "The American Trial Lawyers Association has perpetrated myths on the American public, including the myth that a very small proportion of all physicians are responsible for the majority of claims. This is a sort of statistical magic, because, unfortunately, a small proportion of the physicians in high-risk specialties, such as obstetrics and gynecology and neurosurgery, are responsible for a disproportionate number of the claims."

Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Burton), former chairman of the Committee on Government Reform.

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Mr. BURTON of Indiana. Mr. Speaker, I thank the gentleman for yielding me this time.

First of all, I am for medical malpractice reform. I think it is extremely important we address this issue. However, I have a real problem with this bill. In section 7, item ©, under punitive damages, it in effect will protect the pharmaceutical industry against class action lawsuits by parents who have had their children damaged by mercury in vaccines that causes neurological problems, such as autism.

We had hearings on this for about 6 years, and we had scientists from all over the world, and the mercury in vaccines is a contributing factor to autism and other neurological disorders in children. It is in adult vaccines as well.

Now, I will not go into specifics of the language in here, but according to attorneys I have talked to in the last couple of days, it protects the pharmaceutical companies against class action lawsuits. I would not have a problem with that if there was another avenue for these parents to go to get money.

We created the Vaccine Injury Compensation Fund to take care of that. It was supposed to be nonadversarial. Unfortunately, parents have gotten nothing out of the Vaccine Injury Compensation Fund, even though there is $3 billion there. So there is only one avenue they have, and this legislation, the way I read it, blocks that.

The gentleman from Florida (Mr. Weldon) has worked with me on this, and I think he shares some of the same concerns that I have, and he is welcome to say a word or two if he wants to, but what I want to ask of the manager of the bill, would the gentleman work with me to try to clean this up so that that problem does not exist anymore; so they at least have an avenue to deal with this?

Mr. SMITH of Texas. Mr. Speaker, will the gentleman yield?

Mr. BURTON of Indiana. I yield to the gentleman from Texas.

Mr. SMITH of Texas. Mr. Speaker, the gentleman and I have spoken about this before. I happen to think that the problem lies with current law and not with this particular piece of legislation. But in any case, I share the gentleman's concerns and will work with him to address those concerns as this bill progresses to conference committee.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself 20 seconds.

Mr. Speaker, regarding Vioxx, some have alleged the company knowingly misrepresented or withheld information from the FDA. If so, they would be denied the protections in the bill because the bill specifically in section 7 says and excludes any instances in which a person, before or after premarket approval, clearance, or licensure of such medical product, knowingly misrepresented to or withheld from the FDA information that is required to be submitted.

If we look at the language of the bill, we can see that what the gentleman said is not relevant.

Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania (Mr. Dent).

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Mr. SMITH of Texas. Mr. Speaker, I yield myself 20 seconds.

Mr. Speaker, I just want to reply very quickly to the point that was made, and that is that this bill does not violate any States' rights. Section 7(a), it very clearly says that if any State has any cap of any amount, be it higher or lower than the caps in the bill, then that State's cap will prevail.

So this recognizes States' rights. It is friendly to States' rights.

Mr. Speaker, I yield 2 minutes to the gentleman from Ohio (Mr. Chabot), a member of the Committee on the Judiciary and also chairman of the Subcommittee on Constitutional Law.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself 1 ½ minutes.

Mr. Speaker, what was just said was actually contradicted by the Government Accountability Office. The GAO found that rising litigation awards are responsible for skyrocketing medical professional liability premiums. The report stated that "GAO found that losses on medical malpractice claims, which make up the largest part of the insurers' costs, appear to be the primary driver of rate increases."

The GAO found that insurers are not to blame for skyrocketing medical professional liability premiums. The GAO report states that insurer "profits are not increasing, indicating that insurers are not charging and profiting from excessively high premium rates."

Mr. Speaker, I also want to say that the opponents of this legislation are forgetting, I hope not ignoring, a study by the Harvard Medical Practice. What this study found is that over half, over half of the filed medical professional liability claims they studied were brought by plaintiffs who suffered either no injuries at all or, if they did, such injuries were not caused by their health care providers, but rather by the underlying disease itself.

Mr. Speaker, I yield 4 minutes to the gentleman from Georgia (Mr. Gingrey).

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Mr. SMITH of Texas. Mr. Speaker, I yield myself 3 minutes.

Mr. Speaker, I thought my colleagues might be interested in some quotes. One quote is from a former Democratic Senator, and the other quote is from a liberal Washington Post columnist. I would like to read those now.

Former Democratic Senator George McGovern has written that "legal fear drives doctors to prescribe medicines and order tests, even invasive procedures that they feel are necessary. Reputable studies estimate that this defensive medicine squanders $50 billion a year, enough to provide medical care to millions of uninsured Americans."

Mr. Speaker, this is from a prominent liberal commentator, Michael Kinsley. He wrote in the Washington Post, "Limits on malpractice lawsuits are a good idea that Democrats are wrong and possibly foolish to oppose. Republicans are right about malpractice reform."

Mr. Speaker, also we have a number of polls showing that the American people support the HEALTH Act. Between two-thirds and three-quarters of the American people support exactly what we are trying to do. Just this week a poll conducted by Harris Interactive showed that 74 percent of those surveyed support reasonable limits on the award of noneconomic damages and limiting payments to personal injury attorneys.

A poll by the Harvard School of Public Health found the following: "More than 6 in 10, 63 percent, say they would favor legislation that would limit the amount of money that can be awarded as damages for pain and suffering to someone suing a doctor for malpractice."

The same poll found that 69 percent of the people surveyed say a law limiting pain and suffering awards would help either a lot or some in reducing the overall cost of health care.

Finally, the results of a recent Gallup poll show that the American public strongly supports the HEALTH Act. The survey asked whether those surveyed would favor or oppose a limit on the amount patients can be awarded for their emotional pain and suffering. Mr. Speaker, 72 percent were in favor. That means three-quarters of the American people favor this HEALTH Act.

Mr. Speaker, I reserve the balance of my time.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes.

Mr. Speaker, let me share with my colleagues the result of three studies, and let me emphasize that these studies are not about hypothetical situations. They are not theoretical studies. They are studies of the actual experiences of States that have enacted reforms similar to the ones we have in this bill that we are talking about today.

According to the U.S. Department of Health and Human Services, States with reasonable legal reforms including caps on noneconomic damages enjoy access to more physicians per capita: "We found that States with caps on noneconomic damages experienced about 12 percent more physicians per capita than the States without such a cap. Moreover, we found that States with relatively high caps were less likely to experience an increase in physician supply than States with lower caps."

Mr. Speaker, also, research shows that California reforms, which the HEALTH Act is based on, have not resulted in unfair awards to deserving victims. A recent comprehensive study of California's MICRA reforms by the Rand Institute concluded that under MICRA, "awards generally remained quite large despite the imposition of the cap, and California's reforms have not resulted in any disparate impact on women or the elderly."

Mr. Speaker, in another study, researchers at the Harvard School of Public Health stated that "we found no evidence that women or the elderly were disparately impacted by the cap by noneconomic damages in California under MICRA."

Mr. Speaker, I reserve the balance of my time.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself 3 minutes.

Mr. Speaker, I just want to remind my colleague who just spoke that our separation of powers provides that all aspects of the government are limited to some extent. If juries or judges give outrageous awards, like any other exercise of government power, they should be subject to reasonable checks and balances.

Mr. Speaker, I also want to remind my colleagues that unnecessary and frivolous litigation is threatening the viability of the life-saving drug industry. To encourage the development of life-saving drugs, the HEALTH Act contains a safe harbor from punitive damages from a defendant whose drugs or medical product comply with rigorous rules or regulations. The provision is manifestly fair.

Why should a drug manufacturer be found guilty of malicious conduct when all they did was sell a product approved as safe under the comprehensive regulations of the FDA? Claims for unlimited economic damages and reasonable noneconomic damages could still go forward under the HEALTH Act. The safe harbor does not apply if relevant information was misrepresented or withheld from the FDA.

Eight States have, in fact, provided an FDA regulatory compliance defense against damages just like this bill. Those States are Arizona, Colorado, Illinois, New Jersey, North Dakota, Ohio, Oregon, and Utah. Opposing this bill jeopardizes those State laws. And the Members who are from those States might want to remember that.

Mr. Speaker, the evidence is overwhelming. Without legal reform, patients will continue to go without needed doctors: women will continue to deliver babies on the side of the road because the nearest OB/GYN is hundreds of miles away; parents will continue to be forced to watch as their child with brain injury suffers because lawsuits forced the nearest neurosurgeon to stop practicing.

Mr. Speaker, we need to pass this legislation.

Mr. Speaker, I reserve the balance of my time.

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Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, first let me say to my colleagues who are not usually concerned about States rights that if they will look at section 11 of the bill, they will find the bill respects the right of any State to set a cap of any amount, be it higher or lower, than the caps in the bill itself.

Mr. Speaker, the HEALTH Act is the only proven legislative solution to the current medical liability insurance crisis. According to the Congressional Budget Office, under this bill, "Premiums for medical malpractice insurance ultimately would be an average of 25 percent to 30 percent below what they would be under current law."

H.R. 5 allows unlimited awards of economic damages. These include past and future medical expenses, lost or past and future earnings, the cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities. Deserving victims can be awarded tens of millions of dollars in damages, as we have already seen in the States that have similar reforms to those contained in this bill.

Mr. Speaker, the Harvard Medical Practice Study found that over half of the filed medical professional liability claims they studied were brought by plaintiffs who suffered either no injuries at all or, if they did, such injuries were not caused by the health care providers, but rather by the underlying disease.

H.R. 5 is modeled on California's legal reforms. Those reforms have resulted in California's medical liability premiums increasing at a rate that is only one-third the rate of those of other States.

Mr. Speaker, we need to act, and we need to act now. The nonpartisan Annals of Medicine predicts that the current doctor shortage could get worse, and we could lose 20 percent of needed doctors in the coming years. Let us protect patients everywhere. Let us pass the HEALTH Act.

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Mr. SMITH of Texas. Mr. Speaker, I rise to claim the time in opposition to the motion to recommit.

The SPEAKER pro tempore (Mr. Shaw). Is the gentleman opposed to the motion?

Mr. SMITH of Texas. Yes, Mr. Speaker.

The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) is recognized for 5 minutes.

Mr. SMITH of Texas. Mr. Speaker, the motion to recommit must be defeated because it contains zero legal protections for doctors beyond current law, and in some cases it actually makes the current crisis even worse.

The Democratic alternative would require that before a health care lawsuit is filed, the claimant file an affidavit declaring that a qualified specialist has been consulted and has issued a written report that says the filing is meritorious.

Mr. Speaker, the definition is so broad it is meaningless. The Democratic alternative also imposes another wasteful layer of bureaucracy on the health care system, mandatory mediation, which simply has no binding effect.

The motion to recommit even makes the situation of OB/GYNs worse than it is today by allowing someone as old as 21 to file a lawsuit claiming the doctor who delivered them caused their injury 21 years before. The motion to recommit would subject OB/GYNs to even more nuisance suits and drive even more of them out of business.

So the Conyers-Dingell substitute contains zero legal reforms and would make the current litigation crisis even worse; yet legal reforms are needed to solve the current crisis in medical liability insurance and increase access to health care.

H.R. 5 is the only proven legislative solution. According to the Congressional Budget Office under the HEALTH Act, "premiums for medical malpractice insurance ultimately would be an average of 25 to 30 percent below what they would be under current law."

Mr. Speaker, for the sake of health care providers and the people who need them, let us keep doctors practicing their profession and defeat this motion to recommit.

Mr. Speaker, I yield the balance of my time to the gentleman from Wisconsin (Mr. Green), who is an expert on this subject.

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Mr. SMITH of Texas. Mr. Speaker, I urge my colleagues to vote "no" on the motion to recommit and "yes" on the HEALTH Act.

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