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Patients First Act of 2003 - Motion to Proceed

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Location: Washington, DC

PATIENTS FIRST ACT OF 2003—MOTION TO PROCEED

    Mr. McCONNELL. Mr. President, there is perhaps no more vexing challenge confronting this Congress than improving the quality and affordability of health care for all our citizens.

    Just a few weeks ago, this Senate took historic action to strengthen and modernize Medicare by providing seniors new choices and adding a prescription drug benefit. During the past year, this Senate passed legislation to provide new resources to the scientists at the National Institutes of Health and to strengthen our Nation's defenses against the threat of bioterrorism.

    While we shouldn't minimize the importance of these initiatives, the Senate has not addressed one of the most fundamental problems limiting American access to quality health care; that is, reforming our Nation's flawed medical liability system.

    Our current medical liability system encourages excessive litigation, drives up costs, and is literally scaring doctors out of the medical profession. All too often, these lawsuits result in exorbitant judgments that benefit personal injury lawyers more than they compensate injured patients. I am pleased that the Senate will soon consider legislation, the Patients First Act, authored by Senator Ensign, to address many of these shortcomings.

    As we debate this legislation over the next several days, Members will use some complex actuarial terms such as "combined loss ratios," "asset allocation," and "the McCarran-Ferguson Act" to illustrate their points. While they may be important, I believe it is more important that we recognize this is a real crisis facing real families.

    Let's look first at this photo of Tony and Leanne Dyess with their family. This picture was taken prior to July 5 of last year. On that evening, Tony was critically injured in a car accident while on his way home from work in Gulfport, MS. Immediately after the crash, Tony was rushed to Garden Park Hospital, right there in Gulfport, suffering from serious brain injuries that required immediate medical attention.

    Tragically, nearly all of the specialists capable of treating this type of head injury had left Gulfport because of the medical liability crisis and none was available to treat Tony Dyess.

    Tony had to be airlifted to University Medical Center in Jackson, MS. Six excruciating hours passed before he received the surgery he needed to relieve the swelling in his brain. As Dr. FRIST can explain to us, every minute is critical when treating patients who have experienced serious brain trauma.

    While the doctors in Jackson saved Tony's life, they were unable—unable—to prevent him from suffering permanent brain damage. As a result, Tony will require constant care and medical attention for the rest of his life.

    The Senate was fortunate to hear from Leanne Dyess when she testified before a joint HELP-Judiciary Committee hearing on the medical liability crisis earlier this year. I thank her for her willingness to share her story with the American people and ask unanimous consent that her testimony be printed in the RECORD following my remarks.

    Mr. McCONNELL. Mr. President, let's consider the case of Melinda Sallard. This is a picture of Melinda Sallard and her daughter. They live in Arizona.

    In 2002, the administrators at Copper Queen Community Hospital in Bisbee, AZ, were forced to close their maternity ward because their doctors' insurance premiums had risen by 500 percent.

    A few months later, Melinda awoke at 2 o'clock in the morning with sharp labor pains. Since her local hospital stopped delivering babies because of the medical liability crisis, Melinda and her husband were faced with a 45-mile drive to Sierra Vista in order to reach the nearest hospital with a maternity ward. As many of us who are parents know, babies do not always wait for the hospital, particularly when that hospital is almost an hour away.

    Melinda gave birth to her daughter in a car on a desert highway heading to Sierra Vista. When the newborn was not breathing, her levelheaded mother cleared the child's mouth and performed CPR. After resuscitating the infant, Melinda wrapped her in a sweater, and the new family completed the journey to Sierra Vista. Thankfully, both mother and daughter survived. However, it is unacceptable that expectant mothers should be forced to drive past a perfectly good hospital and drive 45 miles through the desert to deliver a child.

    Unfortunately, these are not isolated anecdotes but just a few examples of the impact runaway litigation is having on patients in every corner of our country. Patients across America—from the Pacific Northwest to the Southeast, from New England to the desert Southwest—are facing a medical liability crisis.

    As many of our colleagues will recall, I offered an amendment to the generic drug legislation just last year that included some very modest medical liability reforms. During that debate, I called our colleagues' attention to this map produced by the American Medical Association. At that time, the AMA had identified 12 States, those States that are depicted on the map in red—this was a little over a year ago—as experiencing a medical liability crisis. The States shown on the map in yellow were ones at that time with significant problems which were nearing a crisis.

    As I am about to illustrate, the situation has grown worse in the past year. The AMA reports there are now 19 States experiencing a medical liability crisis, with the addition of Wyoming just today.

    Unfortunately, my own State of Kentucky is one of those States now facing a medical liability crisis. Knox County Hospital in Barbourville, KY, which is in the eastern part of our State, recently announced it would no longer deliver babies because its doctors could no longer handle the malpractice premiums. The hospital averaged about 200 deliveries per year. These mothers-to-be will now be forced to travel an additional one-half hour through Kentucky's mountain roads to the next closest hospital.

    Not surprisingly, these expectant mothers are upset. One mother-to-be told the Lexington Herald Leader: "To have to see someone new at the last moment is just horrible. You develop a close bond with your doctor, almost like family. You don't want a stranger."

    In another part of our State, Dr. Susan Coleman, up in Danville, was forced to give up delivering babies after her premiums doubled from $44,000 a year to $105,000 a year—even though she has never lost a jury verdict or paid an out-of-court settlement. More than two-thirds—84 of 120—of Kentucky's counties have either one or no obstetricians who will deliver babies.

    This crisis has hit Kentucky's teaching hospitals as well. These valuable institutions not only train our future doctors, they also tackle many of the most difficult medical procedures. Earlier this year, the University of Louisville Obstetrics Department was just days away from closure because it could not find insurance for its doctors.

    As I travel through Kentucky, I am approached frequently by doctors who plead for reforms we are proposing today. Some have already packed up their practices and moved across the river to Indiana, which has medical liability reforms. Many more doctors are thinking about following them.

    Kentucky is now one of these States facing a medical liability crisis. So, Mr. President, Kentucky now goes from yellow to red.

    Let's talk about Connecticut. This year, 28 OB/GYNs in Connecticut announced they could no longer afford to deliver babies because of rising medical liability premiums. According to the Connecticut State Medical Society, each doctor would deliver approximately 100 babies a year. This means that 2,800 Connecticut patients must now find new doctors because of the medical liability crisis.

    Dr. Sally Crawford of Norwich, CT, provides a compelling example. She retired from medicine this year at age 55 because she could no longer afford her medical liability premiums. She had never been sued, but her liability insurance premiums became so expensive, they cost her $124,000 a year.

    Dr. Jose Pecheco's insurer stopped offering medical liability insurance, so he shopped around for a new policy. When he learned that a new policy with "tail" coverage would cost him $150,000 a year, he did what Dr. Crawford did; he retired.

    Why are insurance premiums for doctors rising? They are rising because the size of jury verdicts and settlements is rising at an alarming rate. According to the Hartford Courant, the average payment made of one of the State's major insurers to resolve claims increased from $271,000 in 1995 to $536,000 in 2001. When so many experienced physicians such as these take early retirement or curtail services, it is not surprising that the AMA has now designated Connecticut a crisis State. So Connecticut goes from yellow to red. Connecticut is now a State in crisis.

    Let's take a look at North Carolina. Time magazine recently featured the story of Dr. Mary-Emma Beres, a family practitioner in Sparta, NC, who had always loved delivering babies. However, when she learned her malpractice premiums were about to triple, she was forced to give up her calling. Now Sparta is left with one obstetrician for difficult cases, and some women who need C-sections must now take a 40-minute ambulance ride to the next nearest facility.

    We have heard several examples about escalating premiums that cause some doctors to retire early, but what impact is the medical liability crisis having on doctors at the beginning of their careers? The same article in Time features the story of Martin Palmeri, a medical student at East Carolina University. He had his heart set on a career in obstetrics, but after witnessing a medical liability trial in North Carolina, he decided "the risks of the specialty were greater than the rewards." He is now considering a less risky specialty.

    The crisis has hit North Carolina hospitals particularly hard. According to McNeary Healthcare Services, small rural hospitals in North Carolina experienced an average increase in liability premiums of 180 percent in 2002 alone.

    The crisis is impacting patient access to emergency care in Cabarrus County. The county's Level III trauma center was facing possible closure this year when its 17-member emergency medical group was faced with an 88-percent increase in premiums for reduced coverage. It is no wonder that North Carolina is facing a medical liability crisis, and North Carolina now moves from a yellow State to a red State, a State in crisis.

    Like Kentucky and North Carolina, the AMA has recently added Arkansas to its list of States facing a medical liability crisis. In Ashdown, AK, the emergency room at the Little River Memorial Hospital was in danger of closing when it could not find an insurance carrier. It was only able to stay open after obtaining new insurance coverage at a 300-percent increase in premiums. According to a recent survey by the Arkansas Medical Society, 90 percent of doctors have practiced expensive and often unnecessary defensive medicine; 80 percent of doctors are less willing to perform high-risk procedures; 71 percent of physicians surveyed in Arkansas stated they were considering early retirement; and one-third of Arkansas physicians are considering moving their practices.

    Doctors in Arkansas who want to care for the State's frailest patients are in a particularly difficult bind. There are currently no insurers writing new policies for doctors who treat nursing home patients, and those doctors who have coverage report a whopping 1,000-percent increase. Let me say that again: There are currently no insurers, none, in Arkansas writing new policies for doctors who treat nursing home patients, and those doctors who have coverage report a whopping 1,000-percent increase.

    Why? Jury awards and settlements are rising faster than insurers can raise their premiums to meet these increased costs. From 1992 to 2000, the amount that doctors and insurers paid out in jury verdicts and settlements tripled, but then it doubled again in 2001. In that year, for every $1 an Arkansas medical liability insurer received in premiums, it had to pay out $1.61 in jury awards and settlements. Arkansas, as you can imagine, is now confronting a medical liability crisis. So Arkansas moves from a yellow State, which indicates a State with problems, to red, indicating a State in crisis.

    Next we turn north to Missouri. This April, St. Joseph Health Center in Kansas City was forced to close its trauma center when its neurosurgeons decided to leave. Last April, Overland Park Regional Medical Center in suburban Kansas City closed the only trauma center ever in suburban Johnson County, KS. This means residents of southern Kansas City and the millions of motorists who pass through on I-35 or I-70 have limited access to a trauma center in an emergency. Now critically injured patients in Kansas City must be transported to either the University of Kansas Medical Center or the Medical Center of Independence, but even that may not be for long. Because of exorbitant medical liability premiums, the two neurosurgeons who service the Independence Medical Center are packing up their practice and moving on November 1.

    But this crisis isn't limited to just Missouri's major cities. In May, Dr. Julie Wood was forced to close her rural family practice in Macon because she could no longer afford her $71,000 malpractice premium while treating Medicare and Medicaid patients. Macon's other two family doctors recently stopped delivering babies in order to reduce their insurance premiums, making the nearest point of care for expectant mothers nearly an hour away.

    All of that explains why Missouri unfortunately is now facing a medical liability crisis and moves from a State with problems to a State in crisis.

    Let's look across the Mississippi River to Missouri's neighbor, the great State of Illinois.

    Time magazine recently ran a cover story entitled "The Doctor is Out," highlighting the plight of Dr. Alexander Sosenko of Joliet, IL, and his patients.

    Dr. Sosenko's insurance carrier recently dropped him and his cardiology partners, even though the practice had never lost or settled a single malpractice case. The one offer of insurance the practice received would have raised their annual premiums from $14,000 per doctor to nearly $100,000 per doctor.

    Dr. Sosenko and his colleagues are trying to determine their next step, but he is clearly worried about his practice's 6,000 patients. He told Time: "We doctors can move, but our patients can't."

    Dr. Sosenko's cardiology practice is not the only one in Joliet coping with a medical liability crisis. The town is quickly losing all of its neurosurgeons.

    In February, two Joliet neurosurgeons gave up performing brain surgery, leaving the city's two hospitals without full-time coverage for head trauma cases. The situation may soon get worse for Joliet's patients. The town's last remaining neurosurgeon must now pay $468,000 a year for insurance and is considering leaving the State. If seriously injured patients need the trauma services of a neurosurgeon, then they will have to travel another 45 minutes to the next nearest trauma center.

    These problems are not confined to Joliet. The Chicago Tribune reports that for specialties such as neurosurgery and obstetrics, medical liability rates have increased by more than 100 percent and could climb even higher later this year. So it is no wonder the AMA has now observed that Illinois is experiencing a medical liability crisis.

    Mr. President, I am sorry to say that this week the AMA added a 19th State to its list of States facing a medical liability crisis. Dr. Willard Woods of Wheatland, WY, was forced to give up delivering babies earlier this year. Throughout his career, he delivered 2,500 babies, which is most of the young people within Wheatland and the surrounding communities.

    Dr. Woods described his situation in the Washington Post. He said:

    I love delivering babies. I really love delivering the babies of women I delivered a couple of decades ago. And I know this community needs an obstetrician. But you can't practice without insurance. And I can't get coverage for deliveries anymore.

    Since Dr. Woods stopped delivering babies, mothers with complicated pregnancies must now make the 3-hour round trip to Cheyenne. Sadly, Wyoming, too, is now facing a medical liability crisis.

    So why are premiums rising so quickly that good physicians such as Dr. Coleman, Dr. Crawford, and Dr. Woods are forced to give up their practices? The primary reason is rapidly increasing jury awards.

    As this chart clearly shows, the Jury Verdict Research Service reports that the median award made by a jury has more than doubled between 1996 and 2000. As you can see, between 1996 and 2000 the median jury awards have gone up dramatically, actually more than doubling. In fact, the median liability award jumped 43 percent in just 1 year—from $700,000 in 1999 to $1 million in 2000.

    This chart depicts growth in liability claim payments. Not surprisingly, the increase in jury awards has led to similar increases in the dollar value of settlements reached out of court.

    As this chart shows, the average claim—including both jury awards and out-of-court settlements—has risen sharply in the past 6 years, rising from $176,000 in 1995 to approximately $325,000 in 2001.

    The crisis will continue to grow worse until Congress acts. If we miss yet another opportunity to pass meaningful liability reforms, I have no doubt that more of these yellow States will turn red next year as they find themselves facing a medical liability crisis.

    Thankfully, President Bush has outlined several commonsense legal reforms that Congress can adopt to address this crisis. The President's proposal is based on the Medical Injury Compensation Reform Act, commonly called MICRA, which California adopted back in 1975.

    As this chart shows, California MICRA reforms have kept medical liability premiums affordable for California's physicians. Since the reforms were adopted back in 1975, California's total premiums have risen 182 percent, while the rest of the Nation's have risen 573 percent—three times the California increase.

    In short, while medical liability premiums across the country have taken off over the last 25 years, California's have remained relatively stable.

    So what do the California MICRA reforms mean for the average doctor and his patients? Quite a bit, as this chart shows.

    This chart lists the going market rate for an insurance policy with the largest insurer in each of the following cities. It should be noted that Colorado has passed meaningful liability reforms that are very similar to California's reforms. These take a look at Los Angeles, Denver, New York, Las Vegas, Chicago, and Miami. Doctors in Los Angeles and Denver, where States have enacted reforms, pay less than those in States that have not enacted comprehensive reforms.

    For example, an obstetrician in Los Angeles, with the State's MICRA reforms, can expect to pay $54,000, while his colleague in Miami is looking at a bill of more than $200,000. As you can see, Florida is certainly a medical liability crisis State.

    Similarly, a surgeon in Los Angeles or Denver can expect to pay about one-half as much as a colleague in Las Vegas or Chicago. These same surgeons would face an enormous liability bill—about $175,000—if they moved their practices to Miami.

    Senator Ensign has shown a great deal of leadership on this issue dating back to his days in the House of Representatives. He has incorporated the best parts of the President's proposal and MICRA, the California law, into the legislation before the Senate, S. 11, the Patients First Act of 2003.

    While I would allow the author of this legislation to explain it in detail, I will briefly describe some of the important reforms included in the Patients First Act.

    First and foremost, the Patients First Act allows patients to recover 100 percent of their economic damages. This can include hospital bills, lost wages, therapy, and rehabilitation costs and a wide variety of additional expenses a victim might incur. So all of the economic losses would be recovered.

    In addition to recovering every dime of economic damages, patients can receive additional sums up to $250,000 to compensate for "pain and suffering." The $250,000 is a substantial amount of money, identical to California's MICRA limit. But it still places at least some limit on unquantifiable noneconomic damages in order to prevent doctors from being driven out of business.

    Let's look at punitive damages. In those rare instances where a medical professional acts in a malicious or particularly egregious manner, the Patients First Act also allows victims to recover punitive damages the greater of $250,000 or twice the economic damages. This is in addition to recovering full economic damages and up to $250,000 in noneconomic damages.

    The legislation establishes a standard of "fair share" liability. What this simply means is doctors and hospitals will not be held liable for harm they did not cause. Simple justice. Doctors and hospitals won't be held liable for harm they didn't cause which is possible today and would not be possible after the passage of this act.

    The Patients First Act also protects the injured by ensuring that a majority of any jury award or settlement goes to the patient who is actually hurt and not their personal injury lawyer.

    Finally, this legislation preserves State flexibility on damages by including what is commonly referred to as a flexicap. Recognizing that different States have adopted different approaches to address this crisis, the Patients First Act allows States to establish their own limits on damages. Under the flexicap provision, in any State that has adopted limits on economic, noneconomic, or punitive damages, those State limits, not the Federal limits, will apply.

    The flexicap also applies prospectively. If any State legislature believes the monetary limits established in this bill are too generous or not generous enough, it can simply enact a statute to change the limits within that State.

    Mr. LOTT. Mr. President, will the distinguished Senator from Kentucky yield for a couple questions on these issues?

    Mr. McCONNELL. I will be happy to yield.

    Mr. LOTT. Mr. President, I know the Senator from Kentucky is presenting his prepared statement, and it really has been quite interesting, and I share his concern. My State is one of those first States to be in red. We have a crisis in health care delivery. We are losing doctors to retirement, leaving the State, or leaving part of their practice, like OB/GYNs getting out of the OB part of their practice. The Senator made a particular point. I think the bill is a good solution, and it is based, as Senator McConnell said, on the California plan that has been successful that does have some limits on punitive damages.

    The Senator from Kentucky just made a point about the abilities of the States to act differently if they so choose. Will the Senator explain that? I did not understand that was in the bill. I am very interested because one of the complaints I have heard is that we are imposing our will on the States and the State legislatures cannot act, if they want to or if they will, although not many of them have. Will the Senator from Kentucky expand on that point?

    Mr. McCONNELL. Mr. President, I say to my friend from Mississippi, the argument typically made for this type of legislation is that we are interfering with the rights of the States. What we have done in this measure is to give the States an opportunity to act, to, in effect, supercede what we have done to make it less generous or more generous, depending on what they may conclude. A State is given an option to address this crisis in a way that is different from the way we addressed it within certain guidelines. By doing that, we do make an effort to respect the State's right to act.

    Mr. LOTT. Mr. President, if the Senator will yield further, I say to the Senator, just coming back from my State, I had occasion to meet with doctors, hospital administrators, and civilians who are having problems, like some of those the Senator pointed out earlier. I also met with some of the attorneys who raise the point that the States should be allowed to act.

    My own State legislature tried to deal with this issue and made a little progress, but it is still very weak. Our crisis is getting worse, and we are losing particularly those critical services that we need in our trauma systems, for instance.

    The point I wish to make or ask the Senator to further expand on is, they say: What is the Federal role in this situation? Why is it necessary for the Federal Government to become involved? My response has been, clearly, there is a Federal application for medical liability that may not exist in other areas because of the impact it is having on Medicare. The additional threat of these lawsuits, the defensive medicine, the additional costs of medical liability insurance are causing all kinds of additional costs to be added to our Medicare system. I have heard billions of dollars, and I am going to find out in the next day or so what is the approximate amount that is being added each year to the cost of Medicare.

    We are trying to improve Medicare and trying to add prescription drugs, but there are other costs that are being heaped on to the system that are very destructive.

    I think the answer is, more than in any other area where we tried to get some legal reform, there is a Federal application in medical liability because of the impact it is having on the Medicare system.

    Does the Senator from Kentucky care to respond?

    Mr. McCONNELL. Mr. President, I say to my friend from Mississippi, I do not know the exact figure—maybe my staff does—but clearly it has had an impact on the cost to the Federal Government. In addition, these doctors are moving back and forth across State lines seeking a place where they can practice their profession without basically giving away their services.

    Kentucky happens to be next to Indiana which adopted standards similar to California some two decades ago. I have met a number of doctors in Louisville and Henderson who are contemplating simply moving across the river to even afford to continue to practice their profession.

    At least in two ways it impacts at the Federal level, with interstate movement of doctors seeking a place to go where they can practice their profession, and the direct costs to the Federal Government under Medicare.

    Mr. LOTT. A similar situation exists in my State. We are right next to Louisiana and not a State one would think would have the type of reforms they have in place. It is very easy to move from Mississippi to Louisiana. They serve different patients in a different State and medical liability costs are probably half of what they are right across the border.

    What worries me more is we have doctors leaving tremendously underserved areas such as the Delta. One doctor in particular I know moved up to South Dakota and started practicing medicine. Others are retiring when they would not have retired if they believed they could make a decent living.

    Even worse than that, doctors are getting out of certain practices. It has become a serious problem for health care delivery in my State. We have to act in this area, and soon, because the bleeding is growing in terms of losing doctors in these critical areas.

    Mr. McCONNELL. Mr. President, I say to my friend from Mississippi, he is absolutely right. Not only does it affect decisionmaking at the end of one's career but at the beginning. The younger doctors taking a look at which speciality to choose are shying away from obstetrics because they believe they cannot afford to go into that specialty, thus creating a shortage at that end as well as on the other end where doctors who have been in the field a number of years are no longer able to afford it. This is truly a national problem that cries out for a national solution.

    One modest estimate from CBO, in response to Senator Lott's earlier question—this is from my staff—this bill would probably save the Federal Government at least $11 billion. Our suspicion is it is higher than that.

    In conclusion, as this map shows, most of America is either nearing or facing a medical liability crisis. There are not many white States on this map. The white States are the ones that are currently OK. There are six of them. The rest are either in yellow, States showing problem signs, or red, States now in crisis, to which we have added a reasonable number just since this debate last year.

    During the last 8 years, the House of Representatives has recognized this brewing storm and has passed meaningful medical liability reforms on multiple occasions. Unfortunately, during this same period, the Senate has served as a graveyard for meaningful legal reforms.

    However, I believe the tide has begun to turn. The American people are beginning to understand this is not a battle about doctors, personal injuries, lawyers, and insurance companies; it is about ensuring their access, the patients of America, to needed medical care. Expectant mothers are worried that their obstetricians will have to discontinue practice before their baby is born. Parents are concerned that their local trauma center might not have a neurosurgeon on staff to treat a child injured in a car accident. Seniors worry that the double whammy of rising malpractice premiums and reduced Medicare payments will drive their doctors out of business.

    I believe the Patients First Act encompasses the key reforms needed to address this crisis. This legislation allows patients to be fairly compensated—fairly compensated—while placing badly needed limits on often out-of-control damage awards. I believe it is time for the Senate to address this crisis, and I urge my colleagues to support the Patients First Act.

    Mr. President, I yield the floor.

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