Patients First Act of 2003 - Motion to Proceed (3)

PATIENTS FIRST ACT OF 2003—MOTION TO PROCEED

    Mr. DURBIN. Will the Senator yield?

    Mr. McCONNELL. I will not yield at the moment.

    With regard to an earlier reference to the FDA, if a product is found to be appropriate by the FDA, the companies should not have punitive damages assessed when they follow the FDA approval process. Punitive damages are for illegal conduct, and if the Federal Government blesses that conduct, it can't be illegal. However, there is no cap on economic or noneconomic damages against the drug companies in that situation.

    The other part of the FDA section prevents doctors from being sued on product liability cases just because they prescribed a drug that the FDA has approved.

    That is the answer to the question the Senator asked earlier.

    Mr. DURBIN. Will the Senator yield?

    Mr. McCONNELL. I yield the floor.

    Mr. DURBIN. Let me go on to say that in this case the question I was going to ask the Senator from Kentucky is this: This poor lady was a victim in my home State of Illinois which does not allow punitive damages in medical malpractice cases. My question for him, which I will save for a time when he has a chance to answer—whether or not, under those circumstances, this victim of medical malpractice has been allowed to recover punitive damages under his bill.

    The reason I ask that question is I think that the section relative to State flexibility and protection of State rights is not altogether clear. If he is saying that this lady who was a victim of this explosion in her face, which led to multiple surgeries over a projected 10-year period of time, might have recovered punitive damages under S. 11, then in my home State you cannot turn to punitive damages. Your recourse, in her case, is for noneconomic losses, which are limited.

    I might also add the Senator should note his punitive damage section includes a phrase which is a very restrictive phrase. In my home State, when punitive damages were allowed they were allowed for reckless misconduct or willful and wanton misconduct, which is a higher level of negligence.

    Under the specific language of S. 11, in order to recover for punitive damages, you must show a malicious intent to injure. So to have cases of gross negligence is not enough. There must be "malicious intent to injure."

    Another question which I am going to ask the Senator from Kentucky to consider, and perhaps respond to at another time, is whether or not a situation where a doctor is either on drugs, addicted to drugs, or intoxicated, is a case of malicious intent as opposed to gross negligence or willful and wanton misconduct. Because if the doctor is clearly addicted or intoxicated and as a consequence someone is severely injured, the question in my mind is, Is that plaintiff, that victim, then strictly limited to $250,000? Is that a question of negligence or is that a malicious intentional act?

    The reason I raise that is because though we come to the floor and have these phrases go back and forth in debate, in a courtroom it makes all the difference in the world, as in this case or similar cases where States allow punitive damages.

    From my point of view, I think this bill is certainly deserving of a committee hearing where many of these questions could be asked and answered before taken up on the floor. We should have an amendment process. At the end of that process, we should decide whether or not this is the only way to deal with the malpractice insurance premium crisis, which we are facing in this country.

    I will also add at this point, the Senator made reference earlier to some of the challenges facing my home State of Illinois as part of the crisis which he has referred to in his opening remarks. I might also note it was just a couple of weeks ago in his home State of Kentucky that a report that became very controversial was put together by the Program Review and Investigations Committee on the cost of medical malpractice insurance and its effect on health care. It turned out when this report was filed there were those who tried to suppress it so it would not be made public because it addressed the question of why malpractice insurance premiums were high in the State of Kentucky. They raised, I think, some important points that deserve being part of our debate, since the Senator from Kentucky has been kind enough to bring in my home State of Illinois.

    This report talked about the impact of medical malpractice costs and access in Kentucky, and I quote:

    The total number of physicians in Kentucky has increased in every year for which data was available—1981 through 2000—suggesting that the cost of medical malpractice has not reduced the overall availability of physicians for the State.

    It goes on to say:

    The difference of premiums in states with joint and several liability [another provision in S. 11] and other states was generally not statistically significant.

    Then it went on to say:

    Premiums in states with caps on non-economic damages were not statistically different than in other states.

    This is a report from the State of Kentucky written as it considered capping its own noneconomic losses. They concluded:

    Premiums in States with caps on non-economic damages were not significantly different than in other states.

    It said:

    Premiums for internists and general surgeons were higher in States that capped the amount of punitive damages that may be awarded than in other states.

    .    .    . There was no evidence that limiting the amount that attorneys may charge for fees resulted in lower premiums.

    That is from the State of Kentucky, this controversial report, which many people did not want released to the public.

    I think it raises questions as to whether or not the premise of S. 11 is a sound premise. Certainly in the State of Kentucky, people who looked at it came to the opposite conclusion.

    Let me say a word about attorneys' fees. There has been a lot said here about attorneys and contingency fees. The contingency fee is the way a poor person comes to court. Unless you are independently wealthy and can finance a lawsuit and pay a lawyer by the hour, your only recourse is to say to the lawyer, You recover your fee if I recover a settlement or a verdict. That is what a contingency fee is.

    In this bill, S. 11, the authors go to great lengths to limit the amount of fees that can be recovered by attorneys filing medical malpractice cases.

    I will tell you in my experience as a down-State Illinois attorney—I don't speak for any other part of the State or for current practitioners—it was not uncommon to say to someone coming in: I am going to charge you a 25 percent fee if we can settle this before court; a third if we have to go through a trial; and up to 40 percent if there is an appeal. You will also have to pay costs, but I will try to hold onto those in the hopes that ultimately you recover and we can take that out of the ultimate settlement.

    Many people would say, What is my recourse? I can't pay for this lawsuit. I know it is expensive to hire experts, it is expensive to have attorneys prepare the case—for this lady who was a victim of malpractice and many others.

    In this particular law that is before us today, we try to put, at least it is suggested that we put, limits on the amount attorneys can be paid. We take away from the individuals the right to make that decision with their own attorney.

    Undoubtedly there have been abuses on attorneys' fees. I am sure that is the case, as there have been abuses on medical fees and abuses on fees charged by hospitals. But to say we are going to have a one-size-fits-all, one single approach nationwide as to the amount you can recover is in fact to work a disservice as to whether or not attorneys will be able to take these cases.

    I spoke to an attorney today who took an extremely complicated case in Chicago who said before he finally reached a settlement his firm had incurred $250,000 in costs alone and there was no way that a 70-year-old plaintiff could pay them. So this attorney and his firm decided they would put the money on the table, believing the case was meritorious, hoping ultimately they could recover it if there were settlement or verdict. And there was in this case.

    But in this approach here, there is an attempt to try to limit the amount attorneys can receive. I think people like the woman I showed here, this lady here, who is a victim and certainly one deserving of any compensation coming back—but she may never have her day in court, may never have an attorney, may never get a chance to submit her case to a jury of her peers if some attorney doesn't offer a contingency fee arrangement. I have serious concerns about where this will take us in terms of limiting these contingency fee contracts. That, to me, is a concern which should be I think debated and debated openly here.

    I also want to raise a question—I hope if the Senator from Kentucky does not want to address the issue at this point; he will at a later point—as to his qualifications of experts in medical malpractice cases. I want to understand the limitations he is putting on the experts who come before the court.

    In each trial I have been involved in, it was a decision to be made by the judge initially, and ultimately by the jury, as to the credibility of an expert witness. The difficulty which a plaintiff has in a medical malpractice lawsuit, in any city—whether it's in Illinois or Kentucky or New Hampshire—is most doctors are not anxious to testify against their colleagues. So if you are a person who has been injured in a malpractice case, you have to look hard, far, and wide to find an expert who will come to the courtroom and say the doctor did something wrong.

    In this particular legislation there is a limitation on the types of doctors who can testify in medical malpractice cases. I hope tomorrow when we return to this bill the Senator from Kentucky will consider addressing that particular issue as well—what kind of limitations he puts in place. Usually it is a case for the judge to decide initially and the jury to weigh. If they take a look at the doctor who is brought in and say, This doctor doesn't even have a specialty that relates to this lawsuit, or has no experience or really no testimony, then they discount this and perhaps even reject it and maybe even use it against the party who called this doctor. But to establish standards of evidence in this law—I think at least during the course of debating this motion to proceed, we should have an opportunity to discuss the matter.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Kentucky.

    Mr. McCONNELL. Mr. President, the Senator from Illinois mentioned the Legislative Research Service's study in Kentucky, which has been quite controversial and discredited by some. I think a more interesting study was released today by HHS here in Washington which revealed that the States' that enacted limits on noneconomic damages and medical losses have been about 12 percent more for physicians per capita than States without such a cap.

    As was pointed out earlier by a number of speakers on this side of the issue, California and Colorado tend to prove the point. This legislation is modeled after the California legislation. They enjoy lower malpractice insurance premiums in California. Widely believed by everyone is that the reason for that is a sensible system of caps on noneconomic damages.

    With regard to the limitation of lawyer's fees, I would remind everyone that is for the benefit of the victim because every penny the lawyer doesn't get, the victim does. The notion that somehow there would not be lawyers available to pursue worthy litigation if there were some kind of reasonable cap on lawyer's fees, it seems to me, is not substantiated by the facts. Under the Federal Tort Claims Act, there has been a 25-percent cap for many years. I never heard of any crisis created by the absence of lawyers willing to bring litigation under the Federal Tort Claims Act. Certainly there should be a reasonable limitation on fees. We want to make it possible for lawyers to be adequately compensated. But to protect the victim from his own lawyer, it seems to me that some reasonable limitation is appropriate. This bill includes what we believe to be a reasonable limitation.

    The Senator from Illinois also suggested the bill only allows punitive damages in case of malicious intent. It is not just malicious intent; the bill also allows punitive damages when the doctor deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer. Interpreted, that means that would apply to the situation of the drunk doctor Senator Durbin refers to, or a doctor who was on drugs or somehow incapacitated through this kind of behavior. This would clearly mean that punitive damages would be allowed in this case.

    We are making a careful list of all the questions which the Senator from Illinois asked. All of them are good questions. They deserve a response and further argument for getting past the motion to proceed and getting onto the bill. So if there are improvements that the Senator from Illinois and others think should be made to the bill, offer those amendments, debate them, vote on them. It could well be that by the time we get to the end of this bill it would be in such a form that the Senator from Illinois might applaud and want to clear the Senate. Who knows.

    But at the moment, what we are left with is a cloture motion which the leader will later file on the motion to proceed in order to even get into a position to do anything beyond having an interesting back and forth conversation between the Senator from Illinois and myself and get beyond that and actually begin to offer amendments to the bill and have debate on them and see where the votes may lie.

    I think that pretty well covers my observations for today. We look forward to continuing the discussion tomorrow.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Illinois.

    Mr. DURBIN. Mr. President, I thank the Senator from Kentucky for his invitation to improve the bill. I believe it would be a better exercise done in a committee setting with experts and witnesses and Senators having the opportunity to debate it openly and amend it and to include not just changes to the rights of malpractice victims to recover, but also the insurance industry and the medical profession. I think all of those would make for a very constructive and important and timely undertaking which, unfortunately, we are not doing here.

    This is a vote to bring this bill to the floor immediately, and to literally debate it and pass it in a span of 3 or 4 weeks that we have left before the August recess.

    I might also add that California is often referred to in this debate. It is true that in 1975 California passed a malpractice law which put caps on the amount that individuals could recover from malpractice lawsuits. They have not changed that $250,000 cap in the interim. The actual value has been calculated. Because there has been some 28 years since California put that in place, inflation has really taken its toll on $250,000. Its value today is about $38,877.

    Mr. McCONNELL. Mr. President, will the Senator yield for a question on that point?

    Mr. DURBIN. I am happy to yield.

    Mr. McCONNELL. If we indexed that amount under this bill, would the Senator then support the bill?

    Mr. DURBIN. I would be open to the Senator bringing that in as an option, as long as we are dealing with honest figures and fair compensation. But I would also say that in most States which have caps, there are exceptions. For instance, in the State of Mississippi, there were exceptions where judges could see extraordinary cases like the one I mentioned earlier and say that should not be subject to the caps. My problem with California is it is a blanket cap.

    Mr. McCONNELL. I agree with the Senator from Illinois that some kind of inflation adjustment is an appropriate suggestion.

    Mr. DURBIN. I hope the Senator also agrees with me that we ought to allow some exceptions to the cap. I don't want to put words in his mouth. But that is what I think. I think those exceptions should be allowed.

    I would also say it is important to remember if there has been any containment of malpractice premiums in California, they also followed Proposition 103 which is insurance reform. It is not just the limitation on malpractice law that California has, but they passed insurance reform. After that reform, we saw some changes in the amount that was charged to physicians.

    The last point I want to make is this: There has been talk that if we don't do something about malpractice insurance, some doctors are forced to leave the State in which they are practicing. I don't doubt that is a fact. I have spoken to doctors in Illinois in specialties in certain areas who are seriously considering leaving. I hope they don't have to. I hope we can do something here to avoid it.

    But the fact is, in California there are indicators of significant physician dissatisfaction with medical malpractice, and they have the caps. There appears to be widespread problems recruiting physicians. Only a third of California physicians would still choose to practice in California, if they had to do it over today.

    To suggest that this is all about malpractice premiums and whether you have a cap on how much victims of malpractice can recover, the California experience does not necessarily prove that.

    Let me also say I would take exception—and we can debate this, I am sure—to my colleague's interpretations of the punitive damage section. It is true there are two elements here for punitive damages. They are both possibilities.

    One is that the person who is being charged with malpractice has acted with "malicious intent to injure the claimant."

    So that is an intentional act.

    Then it goes on to say, "or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer."

    I would say to my colleague from Kentucky and those who drafted this bill that is unusual wording, and wording I am not familiar with. I would have to study that. But I think to talk about the deliberate act rises to intentional conduct again. The example I used was not a deliberate act but the act of a doctor who was under the influence of alcohol or drugs who may have imbibed or taken drugs, and then in that state of mind did a careless thing which resulted in medical malpractice. Whether that is included in the phrase "deliberately failed to avoid unnecessary injury," I think is arguable. It should be clarified.

    I also want to say in fairness to my friend from Kentucky, since Kentucky and Illinois have been part of this debate, that a report of Wednesday, August 9, 2000, in the Courier Journal noted that 329 physicians had been disciplined in Kentucky for alcohol or drug abuse, incompetence, and other offenses from 1990-1999 according to a report issued on questionable doctors.

    I might also say, Kentucky was ranked as one of the 10 best States in 1999 in responding to this problem. I only raise that because, as painful as it is to concede by anyone, including those on the Senate floor, and certainly those in the medical profession, there are, in fact, cases where individuals have been involved in alcohol and drug abuse and then involved in malpractice.

    What I am hoping we can do, if we seriously want to deal with the malpractice issue, is to go beyond limiting the amount that victims can recover and bringing this conversation to how we police the ranks, so doctors who are not doing the right thing are not going to continue to commit malpractice. That isn't fair to the patients, and it certainly isn't fair to other members of their profession who end up paying higher premiums as a result of it. I think that should be part of any legitimate discussion that deals with this malpractice crisis.

    Mr. President, I know my colleague from Kentucky has yielded the floor for the evening, and I am prepared now, for my side, to close the debate on this matter and perhaps return to it tomorrow. At this point, until the Senate business is clear, I suggest the absence of a quorum.

    The PRESIDING OFFICER. The clerk will call the roll.

    The legislative clerk proceeded to call the roll.

    Mr. DASCHLE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

    The PRESIDING OFFICER. Without objection, it is so ordered.

    Mr. DASCHLE. Mr. President, I did not come to the floor to talk specifically about this debate but I commend the distinguished Senator from Illinois for his excellent presentation today and for the work he has already committed to with our colleague, Senator Graham, and others in an effort to try to resolve this matter and provide some meaningful direction and leadership.

    I am disappointed we find ourselves in the position we are in, both procedurally as well as substantively—procedurally because this bill, obviously, has not had the benefit of committee consideration. The majority leader, as is his right, brought it directly to the floor.

    We have a model we used last year to resolve issues of controversy of this nature, in particular the terrorism insurance bill. That bill was brought to the floor after a significant degree of consultation and cooperation and, ultimately, negotiation. As a result of that negotiation, even though the whole question of jury awards and issues involving tort reform were brought up—because there were some who argued that was the only way to resolve this issue involving terrorism and the problems of insurance related to terrorism—we passed the legislation on a bipartisan basis.

    If you ask anybody today in the industry, they will tell you that insurance premiums have gone down dramatically. The terrorism insurance bill has worked. I would only hope that we could use a model such as that with this issue as well. We can find legitimate, bipartisan, constructive, substantive ways to deal with this issue.

    There is no question this is a problem. There is no question that unless we address the problem successfully, it will become even more of a problem, exacerbated by the month. So clearly we have to address it. The question is how to address it.

    If you look at independent analysis done over and over by studies—the most recent, the Weiss study, issued about 3 weeks ago—those studies have shown conclusively, and I would say almost unanimously, that there is no connection between caps and reduced insurance premiums, none.

    So we know we have to find a way to deal with the very legitimate problem being faced today by physicians across the country. The question is how.

    I give great credit to the Senator from Illinois and the Senator from South Carolina and others who have tried to find a way to address this issue in a meaningful, effective, and, ultimately, bipartisan manner. I hope we can continue to work.

    There is a problem on the other side as well. We want to relieve the problem, financially, that doctors are facing but let us not forget that we had reported by Health and Human Services that there were approximately 100,000 deaths due to malpractice last year. Mr. President, 100,000 people died due to mistakes made in the operating room, in the hospital, in the clinic. I will talk more about this at a later date but there are cases in South Dakota that are troubling.

    So while we ought to be concerned with one side of this ledger, let us not forget the real problem that exists, as the Senator from Illinois has said so powerfully this afternoon, on the other side of the ledger. Let's find that balance. I hope we can do that.

    But the reason I oppose the motion to proceed is because we have not really allowed the same opportunity that worked with terrorism insurance to work here. If Senator Durbin and Senator Graham can work together to find some solution, you would think there could be other ways with which we could use that terrorism model and truly find a constructive, bipartisan solution to this issue.

    Jamming this in the Senate, overriding the committee, and filing cloture on the motion to proceed is not the way to achieve some bipartisan consensus on a very legitimate issue. So we will vote in opposition to the motion to proceed, not because we do not want to address the issue but because there is a better model if we are ultimately going to find a solution. That is what it is we are trying to do. Let's use the model we established last year. I would hope we could do that.

    But we are spinning our wheels. We have 4 weeks in July, 4 weeks in September, maybe a week or two in October—roughly 10 weeks to deal with all the appropriations bills, all of the other issues that have come before the Senate so far, a prescription drug bill, the child tax credit legislation that is still languishing here, and an education bill that falls far short of even what the President said he would commit with regard to resources.

    We have a homeland security situation now, we are told by a report by Senators Rudman and Hart, that falls $98 billion short of where we need to be. One of the most stunning comments in that most recent report is that there isn't a first responder in the country that will survive today a chemical, biological, or nuclear attack to respond in the first place. That is right out of the report. So if we are serious about dealing with the Nation's issues, I hope we will not look at the ideological agenda. I hope we will look at the real agenda.

    I understand the President is going to be spending some time traveling the country over the course of the next several days talking about jobs. I hope he does. When we look at all the administrations, from the very first time we started looking at whether jobs were created or lost in any administration, you cannot find one—you cannot find one—where in the first term of an administration that administration was actually responsible for the loss of jobs, not the gain of jobs. We gained them in the Eisenhower administration, the Kennedy administration, the Johnson administration, all through the 1980s and 1990s. This will be the first administration since Herbert Hoover that has actually seen a net loss of jobs—so far 3 million of those jobs in the first 2½ years.

    So my point in raising these other issues is simply to say we have a lot of work to do. The more we spend time on ideological agendas and issues for which there has not been adequate committee consideration, much less an effort made by people on both sides of the aisle to address them in a substantive way rather than in a political way, we are going to lose time and lose an opportunity to address these issues.

    Mr. President, I know the majority leader came to the Senate floor earlier to talk about how unprecedented it is to consider the possibility of a filibuster on a judge. I go back to our record and I will say we have broken all records with regard to the speedy confirmation of judges. The New York Times again addressed it over the weekend.

    Out of 134 judges considered so far under this administration, 132 have been confirmed; 132 confirmed and 2 have not so far. But for the record I want to make sure people understand. Michael Gerhardt is one of the most respected analysts and experts with regard to the constitutionality of advice and consent. I want to read one segment of a speech he gave a few weeks ago. He talks about the historical practices of the constitutional right of advice and consent, especially as it applies to the rules of the Senate.

    Obviously, we talk about rule XXII, and we are very cognizant of the importance of Senate rules in this regard. Senate historical practice, according to Mr. Gerhardt, goes back to the first recorded filibuster of a judge in 1881, to block President Hayes's nomination of Stanley Matthews to the Supreme Court. Numerous nominees before him were denied votes by delay—in other words, they didn't come to the floor—which has been a common practice for the 215 years the Senate has been meeting. But on the very first occasion of a recorded filibuster, in 1881, President Hayes's nomination was defeated; that being of Stanley Matthews.

    From 1949 to the year 2002, 35 nominations were filibustered, 3 fatally, including Abe Fortas's nomination as Chief Justice. Seventeen of those thirty-five filibusters were of judicial nominations. From 1968 to 2002, Republicans filibustered against 19 Presidential nominations. So these historical practices weigh heavily in support, of course, of the constitutionality in addition to the language itself.

    That really doesn't tell the whole story: Thirty-five nominations, seventeen filibustered against judicial nominations by Republicans since 1968. But the other story is the 65 nominations filibustered by 1 person in the committee, not on the floor. Sixty-five nominations failed to come out of the Judiciary Committee because of a hold respected by the majority leader at the time or by a committee chairman. Ten had hearings. Fifty-five did not. Sixty-five nominations died before they could even be considered by the Senate on the Senate floor.

    You have 35 nominations which came to the floor, 17 of which were judicial, all of which were filibustered, the 17 by Republicans, but 65 didn't even have the opportunity to come to the Senate floor for even a vote on cloture.

    I want to make sure the record, as the majority leader discussed the issue earlier today, is complete with regard to judicial nominations as well.

    Again, I go back to my hope that we can look back on those occasions when we actually succeeded at addressing a real problem and how it was we did so. We succeeded with terrorism insurance because people such as Dick Durbin and Mitch McConnell and others sat down and negotiated and ultimately came to a resolution that solved a problem, solved it almost, I would say today, by acclamation. Nobody would differ with that assertion that we have solved, at least for now, the issue on terrorism insurance, even though it had many of the same questions involving it that we are dealing with today regarding malpractice.

    We have a lot of work to do. I hope we can address education and jobs and prescription drugs and the child tax credit and homeland security, not to mention energy and a lot of other issues that have to be addressed in the month before we leave. We can spend our time more productively. I hope that realization will be one that will be accepted by our Republican colleagues sooner rather than later.

    I yield the floor.

    The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from Kentucky.

    Mr. McCONNELL. Mr. President, let me make a few observations about the record of the Senate this year. This year, the Senate had to complete 11 of last year's appropriations bills. There were only 13 that were supposed to pass the basic work of the Government. This Senate had to come back and approve last year's work that was never done, 11 of the 13 appropriation bills. Last year, for the first time since the Budget Act was enacted in the early 1970s, there was no budget. The Senate never passed a budget. This year, the Senate enacted a budget.

    It is important to note that this year's Senate has also enacted the President's growth package which included the third largest tax cut in American history. And just before the recently completed recess, the Senate completed a bill modernizing and preserving Medicare and adding a prescription drug benefit for our seniors, an issue that had languished over the last three or four Congresses with no action.

    This has been an extraordinarily productive first part of the first session of the 108th Congress, one of which we all have a right to be proud. We are moving forward to complete the agenda for the American people.

    The measure we are considering today, or hoping to consider in the course of the week, the medical liability crisis, is a major part of trying to do what we need to do to make life better for the American people.

    I suggest the absence of a quorum.