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Instituting Tort Reform

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Location: Washington, DC


INSTITUTING TORT REFORM -- (House of Representatives - April 26, 2005)

The SPEAKER pro tempore. Under the Speaker's announced policy of January 4, 2005, the gentleman from Texas (Mr. Carter) is recognized for 60 minutes as the designee of the majority leader.

Mr. CARTER. Mr. Speaker, I am honored to rise in this Chamber and discuss here tonight what has been a part of my life for my entire adult years, and that is the legal system of the United States, the attitudes of the American people about the legal system of the United States and where we are going in justice for America.

Mr. Speaker, I have had the privilege and the honor to serve as a member of the judiciary for over 20 years of my life. I had the honor to appear before good judges and good juries for an additional about 12 years of my life. I am and have been a part of the legal system of the United States of America. I am a lawyer, I am proud to be a lawyer, and I feel I come from an honorable profession.

But it is also the duty of those of us who practice in a profession, whatever that profession may be, when you see a problem that changes the direction of fairness and justice in America, you need to step up and say it is there. You should not let it hide under a box because you might make a little more honey. You need to step up and say, folks, in a certain area, we are starting to see the system be broke, and, if it is broke, we got to fix it.

Now, we are going to hear the term "tort reform" thrown around. I have a son that coaches back in Round Rock, and he said, You know, the first time I heard tort reform, I thought they were talking about bacon, because the average people need to know what we are talking about when we talk about tort reform.

We are talking about a part of the law which basically deals with personal injuries to people. It is a system of justice we have developed in this country to try to find out a way to try to compensate people who are injured by the negligence of others. It was the purpose to solve a problem.

Mr. Speaker, a courthouse, the courtroom, a battery of lawyers, is nothing more than a massive problem-solving area for America, and tort reform solves the problem of someone being injured through the actions of another or their negligence. To look to reform the system, we need to say, what is broken?

Many people in this Congress on both sides of the aisle, and many of my colleagues that I work with daily, would start by blaming the lawyers. I am not going to start by blaming the lawyers, although they certainly have a great amount of blame.

I start with blaming the American people, because we have become soft and decided, many of us think we should have a free ride. The great, huge, gigantic verdicts that are being supported by some juries in this country are another way of winning the lottery in the eyes of many of the American people, and they are just as responsible for administering justice when they sit on a jury as a judge is or a lawyer who sits in that courtroom.

So as we look at our system, we have to say, why do we see a $100 million verdict in a medical malpractice case when it is way beyond the imagination of anyone that that is what it takes to make that defendant whole from whatever injury that plaintiff has, that is what it takes from the defendant to make the plaintiff whole in that case? It is way beyond it.

Why did they award that $100 million verdict? It is my personal opinion they awarded that verdict because we have become a country that would like to get something for nothing, and they are willing to give a fellow citizen something for nothing.

As a juror takes his oath of office to serve as a trier of fact in a case, he should realize that his job there is to do justice. If the judge refuses to reform a verdict, it is his job to do justice.

So as we start seeing these things in our system, we start saying to ourselves, those of us in the legislative branch of government start saying, well, wait a minute. We see these problems. Are there ways we can look to make it better so really justice is done, so really the purpose for the courtroom is well displayed by the verdict of the jury and the rulings of the court? And that is why this has now become a point in time where this society sues more people than the entire rest of the world put together by about 15 times. We are out of control in our lawsuits. The average jury award is now about $3.5 million, up more than 70 percent since 1995.

So let us look and see who has come up with an idea that might help us address tort reform, help us work on this.

The first area we have already once passed through this House is medical malpractice. I am happy to see that my colleague, the gentleman from Texas (Mr. Burgess), one of the practicing doctors who is now a Member of this august body, has joined me in the House.

I am honored to have him here; and if he has the time, I would love for him to join me and talk a little bit about medical malpractice.

One of the things you have got to think about is that young doctor that just graduated from school, and I will use Texas because I happen to know Texas, maybe UT or Baylor or Texas Tech or A&M medical school, SMU, someplace they are putting out good doctors. This young man wants to go back to a small town and practice medicine, and he wants to do it because he wants to make a decent living and help people stay healthy. So he may want to go into the family practice of medicine.

He may want to deliver babies as part of that family practice of medicine because he loves children; and it is one of the things he loves, bringing life into this world.

Today we have to tell that young doctor that, first off, you paid for all your medical school, probably with money he had to borrow from student loans, you are going to have to pay that back, but you are also going to have to get ready to kick in about $70,000 to $100,000. I would say your first $70,000 to $100,000 you make in the practice of medicine you are going to have to go to pay for liability insurance to make sure that you are protected.

That may be a low number. I am sure that the gentleman from Texas (Mr. Burgess) could tell us numbers that far exceed that in some specialties where people have to go out and get that insurance. That means when you open the door, you could be $100,000 in the hole for the first year of practice, and the first time something does not go the way somebody would like it, there you are facing a lawsuit.

Now, seven out of 10 medical malpractice lawsuits filed in the United States have been proven to be frivolous; and many of these lawsuits, unfortunately, because of the nature and the fear of the large verdicts in our system, get settled even though they are frivolous, which causes what? The cost of the insurance to go up, not only for the individual, but for the body and for the specialty.

There are places in this country right now where you are not going to find a neurosurgeon on staff because the cost of being a neurosurgeon is just prohibitive. People in the Valley of the Rio Grande of Texas, one of the poorest regions in the entire Nation, it is difficult to find a doctor who will deliver a baby. There are stories upon stories of women arriving at their doctor's office to learn that the cost of their medical malpractice insurance has put them out of the baby-delivering business. That woman is about to have a baby. She is faced with driving 80 or 90 miles to San Antonio just to find a doctor to make sure that baby is going to be delivered by a doctor, if she can get one.

Mr. Speaker, this is a crisis, and it is a crisis that calls upon us who are in the legislative body to start coming up with solutions. I think that the vision that we have for following the California plan, which has shown that setting certain limits on awards, will assist us, and driving down the cost is important. So that is one area.

We talked a lot about this over the last year, and I wanted to touch on it, because that is where we start and that is where we are starting. There is a book, I believe it is Mr. Grisham wrote this book, called "The King of Torts." It is a novel, but it certainly is based upon some historical facts in this country about these class-action lawsuits.

This session of Congress we did something about class-action lawsuits, this House did and the Senate did; and I am very hopeful we have got class-action lawsuits put where they ought to be. Because what was happening is these lawyers were putting together these large classes of people.
Mr. Speaker, I told you, I highly respect the legal profession. I am not here to blast lawyers. But just because I respect the profession does not mean there are not people that in my opinion that I do not hold in high esteem. Some of these are those who would gather a class from thousands to hundreds of thousands of people in a class, and their victory is they get a certificate for a 20 percent discount and the lawyer gets $100 million.

Mr. Speaker, that is not the right system; and I think, quite frankly, the lawyers that do that ought to be ashamed of themselves, because the system is designed to make whole those who are injured. Yet they forum-shop the Nation looking for these areas where clearly there were some courts who favored these types of actions.

Now, we have put together a system which we feel is very good to put it in the right place, because these things cross State lines. They span the entire Nation and territories of the United States.

Yet, they could go forum shopping in one individual jurisdiction to get better results.

So, in order to stop this forum shopping, we have put together the Class Action Fairness Act which was signed into public law February 18 of this year. It will help unclog overclogged courts, it ends the harassment of local business by forum shopping, and it protects the consumers with the Consumers Action Bill of Rights that requires judges to carefully review the settlements and limits of the attorneys fees when the value of the settlement received by a class member is minor in comparison with the net loss of the settlement claim and the resulting attorneys fees therefrom. It bans settlements that award some class members a larger recovery than others. It allows the Federal courts to maximize the benefit of class action settlements by requiring that unclaimed settlement funds be donated to charitable organizations.

Now, this is a good start, and we are going to have, hopefully, before this session of Congress is over, before the 109th Congress goes to bed, we are going to have more good starts.

Mr. Speaker, I would say that my goal, and I think the goal of all of my colleagues on both sides of the aisle, is to make sure that our legal system, the system that we are so proud of, the fact that we stand in this Chamber day in and day out and talk about the rule of law, because we are proud that we are a nation ruled by the rule of law, that what we are trying to do is make the rule of law work better. The rule of law is not a Las Vegas slot machine. The rule of law is getting justice to every individual that breathes air in this great Nation of the United States of America, and justice means fairness to all.

Mr. Speaker, we are seeing in our court system today a trend that, quite frankly, frightens me. It frightens me because people do not go to court to address grievances; they go to court to punish somebody. They go to court to hurt somebody or to make somebody bow down to their will. Mr. Speaker, that is the climate we have, and we have to start working on it.

I would like at this time to yield to the gentleman from north Texas (Mr. Burgess), my colleague who is very knowledgeable on the subject of what this is doing to our doctors and our medical profession and our cost of medicine. I am honored that the gentleman is here to join me in this conversation.

BREAK IN TRANSCRIPT

Mr. CARTER. Mr. Speaker, I would like to have a little conversation with the gentleman. The gentleman is right. It is very important to make the point that those people that should be at the courthouse addressing genuine harm are still getting to the courthouse and having that harm addressed. It is not cutting off the need of people to recover in the courthouse; it is cutting off these frivolous attacks to try to reach the pot of gold at the end of the rainbow by limiting the pot of gold, and we clearly can see what happened: Get them all in before the deadline so that we can win the lottery. After that, we are just going to get paid for our work.

Mr. BURGESS. Apparently so.

Mr. CARTER. It is a whole lot more fun to dream about winning the lottery. I mean, obviously, the whole country dreams almost every third night in this country about winning the lottery someplace; not very many of them that win it, but they are out there dreaming it. But the real crime of winning the lottery when we are talking about lawsuits is the fear of that big judgment that causes people to settle lawsuits that should not be settled to prevent the danger of that unlimited liability that is out there before caps were placed in the law. The gentleman knows there is nothing that irritates doctors more, and I have talked to doctors about this; they say, they made me settle the lawsuit but, by golly, I did not do anything wrong.

Mr. BURGESS. The gentleman is absolutely correct. If the gentleman will yield, the cost of continuing the lawsuit in both dollar terms and emotional terms is sometimes just simply too high, and the better part of valor is to settle. Fortunately, I lived in a county where juries were a little more favorable to physicians, but we all know of other counties within the State of Texas where that was not the case. There is no question that cases were settled simply because it was easier than continuing the pain and agony of continuing the lawsuit.

Mr. CARTER. And I too lived in such a county and presided over such a court. Our Williamson County jurors, they, when you start talking about $1 million, there is not that much money in the world as far as they are concerned, so they were very tight with their money and, therefore, you saw very few people; if you could file that lawsuit someplace else, they were not filing it in Williamson County, because they were seeking that pot of gold.

Mr. BURGESS. But again, the biggest problem is access. If we drive our good physicians out of practice, if we prevent our best and brightest from entering the practice of medicine, and there is evidence that that is happening, I fail to see how we are furthering the cause of patient safety by keeping the best and brightest out of medicine. I fail to see how we are furthering the cause of patient safety by preventing smaller towns from having access to perhaps an anesthesiologist or perhaps a cardiologist simply because they cannot afford the liability premiums to have them there.

Now, the gentleman knows I have been around a while. I have had four children. When my first couple of children were born, a lot of the procedures that you OB-GYNs do on a regular basis. And I am glad to see we are joined by another one of our doctors here in Congress, the gentleman from Georgia (Mr. Gingrey). So we will just have this conversation be three-way.

When my first two kids were born, I do not even know the terminology, but when they scanned the baby on your tummy, that was brand new. The piercing to check the fluid was brand new. They did not do that as a regular course. They did not run those tests as a regular course with my first two children. With my last two children they did, and it was a blessing for our family because we had a crisis pregnancy at one time.

But my point now is that a doctor, because of the potential of the liability, is afraid not to do those procedures. Is there some truth to that? Does the gentleman agree that there is some truth to that?

Mr. GINGREY. If the gentleman will yield, I do. And the gentleman from Texas (Mr. Carter), the good judge, is kind to yield to me. I actually came to the well for another purpose, but since you asked me my opinion on this, I will be glad to opine.

By the way, that piercing of the abdomen to get the fluid, that is called amniocentesis.

Mr. CARTER. That is it. That is why I went to law school and not medical school.

Mr. GINGREY. Now, do not ask me to spell that for you.

But, Mr. Speaker, absolutely. What the gentleman from Texas, both the gentlemen from Texas, I should say, are absolutely right. The gentleman from Texas (Mr. Burgess) earlier was talking about the number of physicians, that before this good legislation was passed by the great State of Texas, it was 600 or so. And it is really, as I have said this many times, it is not just that the physician loses his or her livelihood that they have worked most of their adult life to establish. But it is a jobs situation, because every time a medical office closes because of the burdensome expense of malpractice insurance, you are talking about putting maybe 15, 25, possibly as many as 50 employees of that medical practice, Mr. Speaker. That is how many were employed in my practice as an OB-GYN in Georgia.

And I really commend Texas in regard to their legislation. I think it was a model, Mr. Speaker, for my State of Georgia in the general assembly, and the State of Georgia this year did pass reform legislation very similar to the Texas bill. And I think that they have now got a couple of years' experience, so hopefully that same thing will occur in the State of Georgia.

So I really appreciate the gentleman yielding and giving me an opportunity to weigh in on this.

Mr. CARTER. Mr. Speaker, reclaiming my time. And I once again thank my colleague from Texas (Mr. Burgess) for being here with me tonight. I rose when I first started talking to tell you that there is, in my opinion, an attitude crisis for the justice system in America. We have talked about medical malpractice, and we have gone forward on the crusade. And I think we are getting some results. And the gentleman from Texas (Mr. Burgess) has very clearly described how we are seeing those results in the State of Texas today. Hopefully, with the work this Congress will do, we will be able to find that same success in the area of dealing with medical issues in the courthouse, to put more fairness back in the system; and that our class action reform, I think, is putting fairness back in the system.

But it is a bigger picture than that, Mr. Speaker. There are a lot of issues we really need to talk about as we talk about lawsuit reform in America. One of the real tragedies that you see in the courthouse today is people using our courts, not to redress grievances, but as a battering ram of costs to destroy competition with those that they are in business in competition against, or using it to try to change, make somebody do something they do not want to do by costing them enough medical costs, I mean, lawyer costs they cannot afford to go to court.

So you just continue to file lawsuit after lawsuit after lawsuit, many of which could be frivolous; but you must defend yourself. And you must be insured to defend yourself. It is getting epidemic. And if you do not think it is epidemic, let us think about the world we are in today, the world of politics in America. Do you think our Founding Fathers ever anticipated that at the end of an election cycle parties would have 50 lawyers on retainer ready to go to court on both sides with both parties?

Do you think that that is the system that we thought that we wanted to have in this country, America? And yet we seem to be there today. I am not taking the sides of whether you like or do not like how elections come out. But when did it become everybody goes to court? When did this have to happen?

I mean, our Founding Fathers trusted the American people to elect their representatives. Did they design a system where judges rule the country? I do not think so. If they had had that system, they would have kept the King, and old George would still be around here. No, the purpose of the American justice system is justice. It is fairness, it is a place to seek recourse when there is no other place for recourse and to get a fair judgment.

Now it has become a weapon of politics. It has become a weapon of business; it has become a weapon to make school boards change policies. It has become a weapon to make city counsels shut down parks or take down symbols. We have gotten to a point where we are letting the courthouse drive everything.

Mr. Speaker, we love our rights in this country. We love to be a Nation that stands up for its rights. My problem is, with rights come responsibilities. And there are times in this life when you are responsible and you have to stand up and recognize I am responsible here. I do not need to sue somebody. If I do not like the way my neighbor cuts his yard, why in the world do I have to drag him into court and make him spend $100,000 on lawyers to make him cross-cut his yard instead of parallel cut it? And yet there are people who do that.

I tried a lawsuit between whose cat and whose dog was doing their business in whose yard. And those people spent $60,000 a piece on lawyers. Mr. Speaker, that is unreasonable. That is ridiculous.

But we have reached a point in America today where we have become so lawsuit crazy and we think we can get something for nothing, they are willing to force somebody to do something that they do not want to do by forcing them to spend their money on lawyers.

It is not the lawyers' fault. They are just getting paid for their hourly wage. It is our attitude in this country. And as we start to show people how we can redirect and make things better, the gentleman from Georgia hit right on it. Not only as these judgments come down in the courtroom does it affect the individuals in the courtroom. The periphery around those individuals, it affects jobs, it affects businesses, it affects the availability of services, the availability of goods, our ability to compete worldwide, to be part of this great ever-growing world community. It affects everything that affects every American citizen by the fact that we are driving up legal costs and using our courts as a weapon.

Mr. Speaker, we have got to do something to change this attitude. I am very blessed right now in Congress to have a multiple of my colleagues from Texas now Members of Congress, the gentleman from Texas (Mr. Gohmert), who is here with us today. The gentleman from Texas (Mr. Poe) is also a new Member of Congress, and I am very honored to have both of these fine judges with me.

We have talked. We talk about what happens in our courtroom, what happens in our courthouse. And we see that there is an attitude in America that has got to be changed. And we do this by, I think, by doing what we are doing right now. Let us start taking the real problem areas, let us start analyzing them. Let us start coming up with a commonsense approach of how we are going to make sure that we are not in the business of making people rich. We are in the business of making people whole. We are in the business of making people right for the injury that occurred. And common sense will hopefully cause us to start to see that what our American court system is about is justice. And if it is not about justice, then it is going about things all wrong.

Mr. Speaker, every day now in the newspaper we see somebody using the courts or somebody using accusations without convictions to harm and punish people in this country, and in this body. Mr. Speaker, that is wrong. That is not what our Founding Fathers intended.

Our Founding Fathers told us that people are innocent until proven guilty. They told us we have a series of courts that are to provide justice and a resolution of disputes, not a battering ram to pound your opponent into submission. And this is the kind of thing that, as we look at the future of the American justice system, we have to do this.

Now, when I get the chance to come up here and talk about lawsuit reform, there is one more thing we ought to talk about. And I may change the subject just so I can get my good friend, the gentleman from Texas (Mr. Gohmert), to step up to the podium. I am going to yield to him right now, and then I am going to come back and talk to you a little bit about what is going on over in the Senate and checks and balances on the judiciary. But first, I thank the gentleman from Texas for coming up here this late hour and joining me. I am proud to have him here, as I said before.

BREAK IN TRANSCRIPT

Mr. CARTER. Madam Speaker, I thank the gentleman. I want to say a statement the gentleman made, I want to emphasize how important it is to me and I think it is important to every Member of this House. That is, men of good will always look for solutions.

We do not always have the right ideas, but if you do not lay proposed solutions on the table for a free debate among men of good will and women of good will in this august Chamber, we will not come up with a solution.

I believe the American people are ready, willing, and able to listen to a debate from the United States Congress about the things that we are talking about here today; and that is what is wrong, how do we change our attitude towards the law, towards our rights and towards our responsibilities? What little things can we do to adjust, to help guide us down the path that I think our forefathers clearly intended for us when we designed the system, which, for all its fault, as the gentleman pointed out, is still the best system ever devised by man?

I am not ashamed of it, and I am not ashamed of lawyers, and I am not ashamed of our system. But I think we must be men of good will and women of good will who seek solutions.

Finally, I am going to just briefly pause. This will be the subject of a whole other talk, but we have got the issue that the press has decided to address as "the nuclear option" which is going on over in the Senate by dealing with the Senate rules and how we are going to get an up-or-down vote on judges.

We love to address, and rightfully so, the Constitution of the United States as we discuss things on this floor. And we love to talk about the checks and balances in our government. And in a judiciary appointed for life as we designed in our system, you have to look into the Constitution and see where the checks and balances are. And I think clearly our framers designed the number one check and balance on the judiciary to be the fact that there will be a new process at least every 8 years now, but certainly 4 to 8 years, who will appoint different types of people to serve in our judiciary which will give a good cross-section of a blend of attitudes, views of the law to our judicial system, to give a system that spreads fairness for all citizens.

To use procedural rules to prevent that appointment power which calls for the advice and consent of Senate, to prevent that using procedural rules, I think it is not a nuclear option, as we are discussing, it is a constitutional option.

If we are not going to allow that check and balance to operate, then where will the checks and balances be? So this will be a subject of another discussion another time. But at this time, I just want to remind the American people as the rhetoric in the papers and on the TV and the radio, remember it is the best justice system in the world. But it is the best because we had some people who sweated blood, sweat, and tears in Philadelphia to come up with a plan that set balance to our system. And the number one balance to a judicial system appointed for life is the opportunity for the executive branch, through the President, to nominate new blood to our judiciary through every Presidential term.

Some of that new blood will be just exactly what they think it will be with their views, and some of it will not. And we are always surprised to hear from our commentators: Well, it is true, but that judge was appointed by Reagan.

That's right, that is how the system works. You put the new blood out there, that blood develops into a justice system, that spreads it out for everybody. And some of them, some people go the way everybody expects them to be and some people do not.

When Eisenhower appointed Earl Warren, nobody anticipated the activist court that would come from the Warren court. And yet historically it is one of the most activist courts in America. So that system works. Why be afraid of it?

I would urge everyone to look at this issue and let the Senate think just for a second, get the politics out of this for a minute and say, What did our Founding Fathers see here? That we had a system that works if we just let it work.

Let us have a vote, up or down, on every nomination that the President has proposed; and when their President gets in there, if he ever does, we should do the same thing for them. That is what our Founding Fathers proposed.

Madam Speaker, I have enjoyed being with you this evening and I am very honored that my colleagues were able to see me ranting and raving and come over here and help me out. Of course, you know one thing you can count on from Texans and Georgians is when there is a call to arms they always show up. So I am proud to see my colleagues from Texas come out and join me in this discussion, and I am very proud to have my colleague from Georgia join me. I thank them all for being here with me tonight.

Madam Speaker, I thank you for your patience in listening to me tonight and for joining us and coming up with those solutions that men and women of good will can submit to this body and hopefully make America better.

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