Farm, Nutrition, and Bioenergy Act of 2007

Floor Speech

FARM, NUTRITION, AND BIOENERGY ACT OF 2007 -- (Senate - December 12, 2007)

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Mr. KENNEDY. I yield myself 10 minutes.

Madam President, I came over to speak on an extremely important issue dealing with the public safety of employer-employee cooperation.

First, I listened with interest to our colleagues talk about the issues of malpractice and the costs to the health care system. The fact is we have had in the Judiciary Committee extensive hearings on this issue, and the root cause of the increases are not so much the problems with the doctors and the patients, it is the insurance industry in and of itself that has made poor investments. As a result of poor investments, they have raised the tariff on the various doctors and communities. This has been well documented. I wish to have material printed at the appropriate place in the Record about these issues. It is a serious issue--malpractice insurance--but it is important that we find out the real reasons for that. It does appear to me we are not getting the full story, certainly here on the floor of the Senate this afternoon.

Today's vote on the Gregg malpractice amendment is a test of the Senate's character. In the past, this body has had the courage to reject the simplistic and ineffective responses proposed by those who contend that the only way to help doctors is to further hurt seriously injured patients. Unfortunately, as we saw in previous debates on this issue, congressional Republicans are again advocating a policy which will benefit neither doctors nor patients, only insurance companies. Caps on compensatory damages and other extreme ``tort reforms'' are not only unfair to the victims of malpractice, they do not result in a reduction of malpractice insurance premiums.

We must not sacrifice the fundamental legal rights of seriously injured patients on the altar of insurance company profits. We must not surrender our most vulnerable citizens--women and newborn babies--to the avarice of these companies. The idea of denying pregnant women living in rural areas the same legal rights as pregnant women living in urban areas is truly absurd. It is a transparent gimmick designed to make this amendment appear relevant to a totally unrelated farm bill.

This bill contains most of the same unreasonable provisions which have been decisively rejected by a bipartisan majority of the Senate many times before. The only difference is that previous proposals took basic rights away from all patients, while this bill takes those rights away only from women and newborn babies who happen to live in rural communities. That change does not make the legislation more acceptable. On the contrary, it adds a new element of unfairness.

This legislation would deprive seriously injured patients of the right to recover fair compensation for their injuries by placing arbitrary caps on compensation for non-economic loss in all obstetrical and gynecological cases involving women in rural areas. These caps will hurt patients who have suffered the most severe, life-altering injuries.

They are the children who suffered serious brain injuries at birth and will never be able to lead normal lives. They are the women who lost organs, reproductive capacity, and in some cases even years of life. These are life-altering conditions. It would be terribly wrong to take their rights away. The Republicans talk about deterring frivolous cases, but caps by their nature apply only to the most serious cases which have been proven in court. These badly injured patients are the last ones we should be depriving of fair compensation.

A person with a severe injury is not made whole merely by receiving reimbursement for medical bills and lost wages. Noneconomic damages compensate victims for the very real, though not easily quantifiable, loss in quality of life that results from a serious, permanent injury. It is absurd to suggest that $250,000 is fair compensation for a child who is severely brain injured at birth and, as a result, can never participate in the normal activities of day to day living; or for a woman who lost her reproductive capacity because of an OB/GYN's malpractice.

Caps are totally arbitrary. They do not adjust the amount of the compensation ceiling with either the seriousness of the injury, or with the length of years that the victim must endure the resulting disability. Someone with a less serious injury can be fully compensated without reaching the cap. However, a patient with severe, permanent injuries is prevented by the cap from receiving full compensation for their more serious injuries. The person with a life-altering injury may only be permitted to receive a relatively small portion of the compensation to which he or she is entitled.

The proponents argue that they are somehow doing these women and their babies a favor by depriving them of the right to fair compensation when they are seriously injured. It is an Alice in Wonderland argument which they are making. Under their proposal, a woman in a rural county whose gynecologist negligently failed to diagnose her cervical cancer until it had spread and become incurable would be denied the same legal rights as a man living in the same county whose doctor negligently failed to diagnose his prostate cancer until it was too late. Is that fair? By what convoluted logic would that woman be better off? Both the woman and the man were condemned to suffer a painful and premature death as a result of their doctors' malpractice, but her compensation would be severely limited while his would not. She would be denied the right to introduce the same evidence of medical negligence which he could. She would be denied the same freedom to select the lawyer of her choice which he had. She would be denied the right to have her case tried under the same judicial rules which he could. That hardly sounds like equal protection of the law to me. Yet that is what the advocates of this legislation are proposing.

Consider another real world example of how this bill would work. A woman visits her OB/GYN to be treated for infertility. She is given a medication which causes her to experience severe complications. A man goes to his doctor with an infertility problem. His doctor also prescribes medication, and he too experiences serious complications. Both suffer permanent injuries as a result, and each sues the pharmaceutical company which manufactured the two drugs. The woman's noneconomic compensation will be arbitrarily limited to $250,000 no matter how devastating her injuries and she will be unable to recover punitive damages even if the court determines that the drug company acted ``recklessly.'' In contrast, there will be no legal limitations on the compensation which the man is able to recover, and he can receive punitive damages if the drug company in his case is found to have acted ``recklessly''. How do the sponsors justify treating two patients with similar injuries so differently based solely on their gender?

Of course, this bill does not only take rights away from women. It takes them away from newborn babies who sustain devastating prenatal or delivery injuries as well. These children face a lifetime with severe mental and physical impairments all because of an obstetrician's malpractice or a defective drug or medical device. This legislation would limit the compensation they can receive for lost quality of life to $250,000--$250,000 for an entire lifetime. What could be more unjust?

This is not a better bill because it applies only to patients injured by obstetrical and gynecological malpractice. That just makes it even more arbitrary.

The entire premise of this bill is both false and offensive. Our Republican colleagues claim that women and their babies in rural areas must sacrifice their fundamental legal rights in order to preserve access to OB/GYN care. The very idea is outrageous. It is based on the false premise that the availability of OB/GYN physicians depends on the enactment of draconian tort reforms. If that were accurate, states that have already enacted damage caps would have a higher number of OB/GYNS providing care. However, there is in fact no correlation. States without caps actually have 28.2 OB/GYNs per 100,000 women, while states with caps have 27.9 ÐOB/GYNs per 100,000 women. No difference.

And that is only one of many fallacies in this bill. If the issue is truly access to obstetric and gynecological care, why has this bill been written to shield from accountability HMOs that deny needed medical care to a woman suffering serious complications with her pregnancy, a pharmaceutical company that fails to warn of dangerous side effects caused by its new fertility drug, and a manufacturer that markets a contraceptive device which can seriously injure the user. Who are the authors of this legislation really trying to protect.

In reality, this legislation is designed to shield the entire health care industry from basic accountability for the care it provides to women and their infant children. It is a stalking horse for broader legislation which would shield them from accountability in all health care decisions involving all patients. While those across the aisle like to talk about doctors, the real beneficiaries will be insurance companies and large health care corporations. This legislation would enrich them at the expense of the most seriously injured patients; women and children whose entire lives have been devastated by medical neglect and corporate abuse.

In the last few years, the entire nation has been focused on the need for greater corporate accountability. This legislation does just the reverse. It would drastically limit the financial responsibility of the entire health care industry to compensate injured patients for the harm they have suffered. When will the Republican Party start worrying about injured patients and stop trying to shield big business from the consequences of its wrongdoing? Less accountability will never lead to better health care.

In addition to imposing caps, this legislation would place other major restrictions on seriously injured patients seeking to recover fair compensation. At every stage of the judicial process, it would change long-established judicial rules to disadvantage patients and shield defendants from the consequences of their actions.

(1) It would abolish joint and several liability for noneconomic damages. This means the most seriously injured people may never receive all of the compensation that the court has awarded to them. Under the amendment, health care providers whose misconduct contributed to the patient's injuries will be able to escape responsibility for paying full compensation to that patient. The patient's injuries would not have happened if not for the misconduct of both defendants, so each defendant should be responsible for making sure the victim is fully compensated.

(2) The bias in the legislation could not be clearer. It would preempt state laws that allow fair treatment for injured patients, but would allow state laws to be enacted which contained greater restrictions on patients' rights than the proposed Federal law. It is not about fairness or balance. It is about protecting defendants who provide negligent care.

(3) This bill places extreme restrictions on the right of injured patients to present expert testimony to help prove their cases. It establishes arbitrary requirements that would make it virtually impossible to qualify many of the most obviously accomplished medical experts as witnesses. Without the ability to present highly relevant expert testimony, the patient's right to her day in court will in many cases be a hollow one.

(4) The amendment preempts state statutes of limitation, cutting back the time allowed by many states for a patient to file suit against the health care provider who injured him. Under the legislation, the statute of limitations can expire before the injured patient even knows that it was malpractice which caused his or her injury.

(5) It mandates that providers and insurance companies be permitted to pay a judgment in installments rather than all at once. Delaying payment amounts to a significant reduction in the award. If the patient does not receive the money for years, he in reality is getting less money than the court concluded that he deserved for his injuries.

(6) It places severe limitations on when an injured patient can receive punitive damages, and how much punitive damages the victim can recover. This is far more restrictive than current law. It prohibits punitive damages for ``reckless'' and ``wanton'' misconduct, which the overwhelming majority of States allow.

(7) It imposes unprecedented limits on the amount of the contingent fee which a client and his or her attorney can agree to. This will make it more difficult for injured patients to retain the attorney of their choice in cases that involve complex legal issues. It can have the effect of denying them their day in court. Again the provision is one-sided, because it places no limit on how much the health care provider can spend defending the case.

If we were to arbitrarily restrict the rights of seriously injured patients as the sponsors of this legislation propose, what benefits would result? Certainly less accountability for health care providers will never improve the quality of health care. It will not even result in less costly care. The cost of medical malpractice premiums constitutes less than 1 percent of the Nation's health care expenditures each year. For example, in 2003, health care costs totaled $1.5 trillion, while the total cost of all medical malpractice insurance premiums was $8.2 billion. Malpractice premiums are not the cause of the high rate of medical inflation.

A study by the Institute of Medicine at the National Academy of Sciences determined that as many as 98,000 patients die in hospitals each year as a result of medical errors. That is more than die from auto accidents, breast cancer, or AIDS each year. These disturbing statistics make clear that we need more accountability in the health care system, not less. In this era of managed care and cost controls, it is ludicrous to suggest that the major problem facing American health care is ``defensive medicine.'' The problem is not ``too much health care,'' it is ``too little'' quality health care.

Republicans in Congress and other supporters of caps have argued that restricting an injured patient's right to recover fair compensation will reduce malpractice premiums. But, there is scant evidence to support their claim. In fact, there is substantial evidence to refute it.

Caps are not only unfair to patients, they are also an ineffective way to control medical malpractice premiums. Enacting malpractice caps has not lowered insurance rates in the states that have them. There are other much more direct and effective ways to address the cost of medical malpractice insurance that do not hurt patients.

The claims regarding the recent malpractice reform in Texas has also been misleading. Prior to Proposition 12, 152 counties reported having no actively practicing OB/GYN doctors and 2 years after implementation, 152 counties still remain without doctors. In fact, it has not made care available to women residing in rural counties. Even more disturbing, the quality of care has diminished in urban areas and according to the Texas Medical Association, the physician organization of the state, the practice of ``defensive medicine'' has not diminished and is likely on the rise.

If a Federal cap on noneconomic compensatory damages for rural obstetrics and gynecological patients were to pass, it would sacrifice fair compensation for injured patients in a vain attempt to reduce medical malpractice premiums. Doctors will not get the relief they are seeking. Only the insurance companies, which created market instability, will benefit.

Doctors and patients are both victims of the insurance industry. Spikes in premiums have much more to do with the rate of return on insurance company investments than with what is actually taking place in operating rooms or in courtrooms. Excess profits from the boom years should be used to keep premiums stable when investment earnings drop. However, the insurance industry will never do that voluntarily. Only by recognizing the real problem can we begin to structure an effective solution that will bring an end to unreasonably high medical malpractice premiums.

I want to quote from the analysis of Weiss Ratings, Inc., a nationally recognized financial analyst conducted an in-depth examination of the impact of capping damages in medical malpractice cases. Their conclusions sharply contradict the assumptions on which this legislation is based. Weiss found that capping damages does reduce the amount of money that malpractice insurance companies pay out to injured patients. However, those savings are not passed on to doctors in lower premiums. Weiss is not speaking from the perspective of a trial lawyer or a patient advocate, but as a hard-nosed financial analyst that has studied the facts of malpractice insurance rating. Here is their recommendation based on those facts:

First, legislators must immediately put on hold all proposals involving noneconomic damage caps until convincing evidence can be produced to demonstrate a true benefit to doctors in the form of reduced med mal costs. Right now, consumers are being asked to sacrifice not only large damage claims, but also critical leverage to help regulate the medical profession--all with the stated goal that it will end the med mal crisis for doctors. However, the data indicate that, similar state legislation has merely produced the worst of both worlds: The sacrifice by consumers plus a continuing--and even worsening--crisis for doctors. Neither party derived any benefit whatsoever from the caps.

Unlike the harsh and ineffective proposals in Senator GREGG's amendment, these are real solutions which will help physicians without further harming seriously injured patients. Doctors, especially those in high risk specialties, whose malpractice premiums have increased dramatically over the past few years do deserve premium relief. That relief will only come as the result of tougher regulation of the insurance industry. When insurance companies lose money on their investments, they should not be able to recover those losses from the doctors they insure. Unfortunately, that is what is happening now.

This amendment is not a serious attempt to address a significant problem being faced by physicians in some states. It is the product of party caucus rather than the bipartisan deliberation of a Senate committee. It was designed to score political points, not to achieve the bipartisan consensus which is needed to enact major legislation. For that reason, it does not deserve to be taken seriously by the Senate. It should be soundly rejected.

Public safety workers are on the front lines of our efforts to keep communities in America safe. They are on call 24 hours a day, 7 days a week doing back-breaking, difficult work. They never blink, they never falter. They do their duty and they do it well.

When the devastating fires raged in southern California, they battled the blazes. When the I-35 bridge collapsed in Minneapolis, they were the first on the scene. When the massive tragedy hit New York City on 9/11, their heroic work inspired the Nation and restored our spirit.

Just last week in Everett, MA, a tanker truck hauling 10,000 tons of fuel suddenly exploded on the highway. Forty cars caught fire.

It took more than 3 hours to put out the flames. But because the police, firefighters, and emergency medical technicians responded so quickly, no one was killed in the accident. Words cannot begin to express our gratitude.

These heroic men and women have earned our thanks and respect, and
they have also earned the right to be treated with dignity. That is why it is a privilege to join with Senators Harkin and Gregg on this bipartisan public safety cooperation amendment to the farm bill, to guarantee that all firefighters, police officers, emergency medical personnel, and other first responders have a voice at the table in the life-and-death discussions and decisions about their work. It will ensure that they are treated fairly. It will help them keep our communities safe. It is no wonder that this amendment has received such strong, bipartisan support. It passed the House of Representatives with 314 votes.

The amendment guarantees that every first responder will have the same basic right that most other workers in the public sector already enjoy--the right to collective bargaining. Many first responders already have this fundamental right.

Every New York City firefighter, emergency medical technician, and police officer who responded to the disaster at the World Trade Center on 9/11 was a union member under a collective bargaining agreement. So were the 7,000 firefighters who responded to the crisis in California. They were able to respond more efficiently and effectively to the crisis because they had a voice on the job. Many other first responders, however, are not so fortunate. Twenty-nine States and the District of Columbia guarantee all public safety workers the right to collective bargaining. But 21 States--this chart reflects it--still deny some or most or even all such workers this fundamental right. Their first responders don't have a voice in policies that affect their safety and livelihoods. That is both illogical and unfair.

We see all too often how dangerous these jobs can be. In 2005, 80,000 firefighters were injured in the line of duty; 76,000 law enforcement officers were assaulted or injured; and almost 300 of these public safety employees paid the ultimate price. First responders face chronic long-term health problems as well. The brave men and women who responded at Ground Zero now suffer from crippling health problems, such as asthma, chronic bronchitis, back pain, carpal tunnel syndrome, depression, and post-traumatic stress disorder.

These men and women are profiles in courage. They walk into the fires, wade into floods, and put their lives on the line to protect our homes and families. They know what they need to have to be safe on the job. They deserve the right to have a say in the decisions that affect their lives.

The amendment grants these basic rights in a reasonable way that respects existing State laws. States that already grant collective bargaining to public safety workers are not affected by the bill. States that don't offer this protection can establish their own collective bargaining systems or ask the Federal Labor Relations Authority for help. That amendment sets a standard. Each State has full authority to decide how it will provide these basic rights.

These rights for first responders are not just important for the workers, they are key to the safety of our communities and our Nation. In the post-9/11 era, first responders have an indispensable role in homeland security. It is vital to our national interest that the essential services they provide are carried out as effectively as possible.

As study after study shows, cooperation between public safety employers and employees improves the quality of services and reduces fatalities. That is why strong, cooperative partnerships between first responders and the communities they serve are essential to public safety. As Dennis Compton, the fire chief of the city of Phoenix, has said:

When labor and management leaders work together to build mutual trust, mutual respect, and a strong commitment to service, it helps focus [a] fire department on what is truly important ..... providing excellent service to the customers.

Our families, communities, and farms, deserve the best public safety services we can possibly provide. It starts with the strong foundation that collective bargaining makes possible.

We cannot call these brave men and women heroes in a time of crisis but turn our backs on them today. We need to act now to make these basic rights available to all of America's first responders. It is a matter of fundamental fairness, an urgent matter of public safety.

The best way to give our heroes the respect they deserve is by supporting this amendment. I urge them to do so.

How much time do I have remaining?

The PRESIDING OFFICER. Nine minutes.

Mr. KENNEDY. Madam President, let me go through some charts.

This chart is on California wildfires, farmland, crops, and livestock. This is Riverside County. I think all Americans remember these extraordinary fires that dominated the national news and newspapers and were so devastating to scores of families out West not many weeks ago. Riverside County lost $15 million in crop and farm products. The fire scorched over 900 acres of farmland. There was between $10 million and $15 million in damages to the avocado farms in Ventura County.

These men and women who fight these fires understand how to be effective and how to preserve both life and the farms in those communities. That is what this is all about--that they have a voice in the development of the policies, about how they are going to proceed. Nobody who watched and listened to those extraordinarily brave firefighters doubted the extraordinary competency and commitment these individuals have. They serve, and serve our country very well.

This is an indicator that firefighter fatalities are on the rise. All of us have seen the growth of fires. This is a rather awesome chart. Firefighter fatalities are on the rise. The red line indicates this. So we are asking more and more of them each year. This chart says that every year firefighters put their lives on the line to ensure our safety. In 2005, 80,000 firefighters suffered injuries and 115 died in the line of duty. This year, approximately 100 firefighters will pay the ultimate price while on duty.

Again, the point we are underlining here is that

firefighters must have a voice in the development of policies, whether it is in the agriculture area or other areas. We need to give the first responders a voice in the development of safety measures and how to use equipment and use it effectively. You will have a more efficient kind of effort in terms of controlling fires, and it increases the safety and productivity of the firefighters.

These law enforcement officers are at risk on the job. In 2005--this legislation would apply to first responders here--76,000 law enforcement officers were assaulted or injured on the job and 157 died in the line of duty. Injuries and assaults have increased by 21 percent in the last 10 years. These jobs are becoming more hazardous. We have a responsibility to do everything we can to work with these first responders to help them do the job they can do and should do.

This chart shows that 9/11 firefighters enjoyed collective bargaining rights. I don't think any American who witnessed that extraordinary tragedy ofÐ 9/11 and witnessed those extraordinary men and women, those firefighters who lost their lives in the line of duty on September 11--they were union members with collective bargaining rights. They were prepared to do their jobs, and they did it like no others. They inspired a nation with their courage. Many are faced, as I mentioned, with many of the lung diseases, carpal tunnel syndrome, and bad backs. They need to be able to have those particular health care needs met and attended to.

Finally, the Cooperation Act protects the rights of dedicated public safety workers. This is a chart that tells what this legislation does and what it doesn't do.

First, it establishes the right to form a union and bargain over working conditions. It gives workers a voice in the working conditions, which is so important in terms of both the efficiency and effectiveness of their work. They would have the right to sign legally enforceable contracts and resolve stalled disputes through mediation or arbitration. There is a specific prohibition in terms of striking, but they can solve this through mediation. That is how disputes will be solved. It doesn't take away the authority of the State and local jurisdictions. It doesn't require any specific method to certify unions. It doesn't interfere with State right-to-work laws. It doesn't infringe on the rights of volunteer firefighters.

This is legislation which has been carefully considered and reviewed. There are, at last count, more than 60 Members of our body, Republicans and Democrats, who have indicated support for the legislation. As we have seen and mentioned earlier, when we saw these devastating fires that went across the country and ravaged the farmland of this Nation and we saw the extraordinary work of so many first responders, it reminded us of our responsibility to make sure these extraordinary men and women who exhibited such extraordinary courage will be treated fairly and equitably. By doing so, they will be able to do their job and protect America's families and the farmland in our country more effectively.

Madam President, I withhold the remainder of our time.

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