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

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

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Mr. JEFFERSON. Mr. Speaker, H.R. 5--the so-called HEALTH Act of 2005--is anything but healthy.

If there was even the remotest possibility that H.R. 5 could help get efficient, accessible, low-cost, timely health care to the American people, it would probably get 435 votes in this House.

However, H.R. 5 does absolutely nothing to achieve the admirable goals embodied in its misleading name. It does absolutely nothing to address the specific problem it is purported to fix: skyrocketing medical malpractice insurance premiums.

Let me be perfectly clear. I am in complete agreement with this bill's supposed and stated purpose: to help get efficient, accessible, low-cost, timely health care to all Americans. I agree that one of the obstacles to low-cost, accessible health care is outrageous medical malpractice liability insurance premiums charged to physicians and other health care providers throughout our Nation. I also agree that some litigation strategies contribute to the escalating costs of our Nation's health care by encouraging providers to order tests, procedures and treatments that may not be medically necessary. I agree with the supporters of H.R. 5 that high malpractice insurance premiums charged by carriers have led some physicians to abandon high-risk specialties and patients.

I ask you though to look at the legislation before us. H.R. 5 contains about 4,000 words. In those 4,000 words, the word ``premium'' appears only once; the word ``insurance'' appears only 5 times; and the word ``cost'' appears 14 times, the vast majority in the definitions and not the operative clauses of the bill.

I ask you to consider whether H.R. 5 is really about skyrocketing medical malpractice insurance premiums as its proponents claim. I have looked very carefully at this bill, and, after much reflection, have reached the only reasonable conclusion: It is not.

I stand here today because someone needs to stand up for American physicians. Someone needs to stand up for the American health care system.

The proponents of H.R. 5 tell us medical malpractice insurance premiums are skyrocketing out of control. There is no dispute that malpractice insurance premiums are increasing at an alarming rate. We agree on that.

There is no question that medical malpractice premiums are escalating across the country, particularly for physicians in high-risk specialties and certain geographic centers. In some cases, premiums have increased so dramatically that physicians have relocated their practices, reduced their services, or retired early. While there is little doubt that something must be done to alleviate this crisis, H.R. 5 is no solution.

Our friends on the other side of the aisle believe that if you limit the amount that insurance carriers have to pay for legitimate claims, then insurance rates will fall.

But I ask you to consider the fact that the American Insurance Association--the American Insurance Association--has repeatedly and specifically denied that tort reform will result in premium savings. Sherman Joyce, the president of the American Tort Reform Association, has stated, ``We wouldn't tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.''

So, by the insurance industry's own admission, H.R. 5 will not stem the tide of rising medical malpractice insurance rates. Nevertheless, our friends on the other side would have us believe that limiting the exposure of insurance carriers is a panacea. It is not.

H.R. 5 is a hoax. It is a sham, and our friends on the other side know it. It is a fraud on the American medical establishment by insurance carriers who want to limit their exposure but will not commit to reducing premiums.

Please read the bill. H.R. 5 has absolutely no provision requiring the reduction of medical malpractice premiums, despite the fact that our friends believe that it is these high premiums that are crippling the health care system. Nevertheless, there is not a single word in this bill that directly calls for reductions in premiums: zero, zilch, nada, nothing, and they know it. It is a scam. H.R. 5 is absolutely nothing more than a boon, a windfall for the insurance industry.

Our friends on the other side tell us that damage caps will solve the premium crisis. Mr. Speaker, I ask that you consider the fact that in States that have enacted caps, the medical malpractice insurance premiums are higher than in States that have no caps. The carriers do not want us to know that.

In fact, in California--the State the other side holds up as a shining example of the benefits of legislation like H.R. 5--the average premium is $27,570, fully 8 percent higher than the average of all States that have no caps on noneconomic damages.

Recently, the American Medical Association issued a list of States that it concluded were in crisis due to exploding medical malpractice insurance rates. Five of those States have caps on noneconomic damages like the one proposed in H.R. 5. Yet, Mr. Speaker, they are still in crisis.

One of those States is Florida, where, despite having caps of just the kind proposed by H.R. 5, obstetricians and gynecologists pay the highest premiums in the Nation for medical malpractice insurance, some in excess of $200,000 per year. Florida has caps, and Florida has a crisis. So, Mr. Speaker, damage caps alone are not the solution to the problem.

If you look further at the California example, it becomes clear that damage caps alone are not an effective premium-reduction measure. In the 12 years after California passed MICRA, medical malpractice premiums rose 190 percent. Only after California passed Proposition 103--actual insurance reform--did medical malpractice premiums stabilize. Since California passed insurance reform--not medical malpractice reform--its medical malpractice premiums have been more stable than in most States.

Mr. Speaker, the lesson to be learned from California is that measures like H.R. 5 do not reduce medical malpractice insurance premiums. The facts simply do not bear it out.

Nevertheless, Mr. Speaker, our friends on the other side insist that one-size-fits-all approach of H.R. 5 is the last and best cure for the crisis of escalating malpractice insurance rates.

Some of our colleagues are, like me, very deeply concerned about rising malpractice insurance rates. Some of our colleagues have expressed an inclination to vote for this bill in order to get the ball rolling, in order to take a first step toward solving the premium crisis. But I want to be very clear: If H.R. 5 is our first step, as the saying goes, it's a doozy. It is a step on the backs of doctors, hospitals and patients to help out greedy insurance carriers. It is certainly a step in the wrong direction. H.R. 5--as the best evidence proves--is an ill-conceived, ill-advised bill that will not--let me repeat--will not solve the problem. This bill helps insurance companies--period.

Recent articles in newspapers across the country show in clear and compelling ways that this crisis is as complex as it is serious. ``Malpractice litigation is only part of the cause of the huge increases in insurance premiums. The insurance industry's pricing and accounting practices ..... play [at least] as big a role.''

The insurance company patrons of our friends on the other side want to hide behind what they consider out-of-control jury awards. Again, Mr. Speaker, the facts simply do not support this claim.

Over the past few years, many physicians have been hit with medical liability premium increases of 25 to 400 percent. Yet, according to The Journal of Health Affairs, during the past decade, malpractice payouts have grown approximately 6.2 percent per year. That's almost exactly the rate of medical inflation: an average of 6.7 percent between 1990 and 2004.

Moreover, contrary to the claims of proponents of H.R. 5, juries are not overly sympathetic to plaintiffs, as evidenced by the rate at which physicians prevail in medical malpractice suits. Dr. Barry Manuel, chairman and CEO of ProMutual Group, one of the Nation's leading malpractice insurance carriers, reported in 2001 that ``we continue to close 60 percent of all claims without payment, and of those cases we are forced to defend in court, we prevail in 90 percent.'' In addition, many of the leading scholars studying the problem have concluded that despite conventional wisdom, juries in fact often favor physicians.

Neil Vidmar, a professor at Duke University School of Law and a leading scholar in the field, states unequivocally that ``the assertion that jurors decide cases out of sympathy for injured plaintiffs rather than the legal merits of the case ..... have been made about malpractice juries in the United States since at least the nineteenth century. Yet, research shows no support for these claims.''

So, Mr. Speaker, one begins to wonder what has caused such extraordinary increases on medical malpractice insurance premiums during the past few years.

Well, investment losses, like those of average Americans, and a weak economy have made a greater dent in the bottom lines of insurance companies than malpractice payouts.

The difference between insurance companies and average Americans is that most of us can't give ourselves a raise to cover our losses. A medical malpractice insurance company can--and does. It alone controls the premium rates it charges our country's doctors. I think you can guess what malpractice carriers have done in response to the general economic climate in the past few years.

The truth is that medical malpractice insurance carriers are asking doctors, hospitals and patients to pay for underperforming investments. It is as simple as that. They know it. We have asked the insurance carriers to commit to reducing premiums in this bill. They will not do it. They will not even talk about it. That is because they have absolutely no intention of reducing medical malpractice insurance premiums.

The bottom line is that H.R. 5 is a jackpot for insurance carriers, and it is the doctors, hospitals and patients that are going to pay for it.

Mr. Speaker, I want to talk for just a minute about the cap on noneconomic damages. If H.R. 5 becomes law, we will be speaking with a loud and clear voice that the injuries victims of medical malpractice suffer are valued in direct relation to how much money those victims have. The unfortunate consequence of this legislation is that--regardless of the severity of your injury, regardless of how long you suffer, regardless of its effect on even the most basic functions of your life, the things we take for granted every day, regardless of whether you can ever play with your children again, regardless of whether you can ever hug your grandchildren again, regardless even whether you or your child or your wife or mother die due to medical malpractice--no one's injury is ever worth more than $250,000.

Our friends on the other side of the aisle like to equate ``noneconomic damages'' with ``pain and suffering.'' But ``pain and suffering'' is a misleading label. What is capped is recovery for disability and disfigurement, among other things, not just ``pain and suffering.'' H.R. 5 lumps together everything that is not ``economic'' and calls it ``noneconomic''--subject to a $250,000 cap that the bill does not even adjust for inflation.

Our friends on the other side of the aisle go to great lengths to emphasize that H.R. 5 in no way limits economic damages as long as they are objectively quantifiable monetary damages. In other words, if a surgeon loses his hand and is unable to perform surgery again, the injury he will suffer is greater than that suffered by a carpenter who loses his hand due to medical malpractice and is never again able to do his job. Why? Well, under H.R. 5 the answer is simple: The surgeon makes more money, so his economic damages are greater. Not to worry, they tell us, both of them can get up to $250,000 in addition to soothe their wounds.

The same is true in the case of an injury suffered by a working mother when compared to a mother working inside the home. Do our friends on the other side of the aisle believe that those women's husbands or children will understand the difference?

At many jobs, the loss of a leg, for example, may not prevent a worker from earning a living. But it will make it difficult to enjoy ``noneconomic'' pursuits like playing soccer with your kids, or basketball and volleyball with friends, or a multitude of other things that make life enjoyable.

Mr. Speaker, H.R. 5 instructs that the value of life is capped at economic losses plus $250,000. That seems inconsistent with the administration's recent characterization of the value of life as ``immeasurable.'' Remarkably, our friends on the other side of the aisle have taken out their calculators, and they have measured the immeasurable. Perhaps they should call the White House, and let them know.

While the proponents of H.R. 5 appear already to have figured it all out, I want to ask them: How much is hugging your grandchildren worth? How much is kissing your husband or wife worth? How much is the ability to walk or to drive or to play a round of golf worth? How much is your ability to feed, bathe and clothe yourself worth? How much is seeing your children grow up worth? How much is your life worth?

I honestly don't know, and I don't think we should be answering those questions for every American either.

Whether it's losing a limb, or an eye, or just the freedom to be able to go where you want and do what you want, how many of us would trade a lifetime of disability or disfigurement, not to mention pain, for $250,000?

The very real consequence of this legislation is that it punishes the most economically vulnerable members of our society to the benefit of greedy insurance companies. It discriminates against children, against women, against older Americans, against ethnic minorities, against the poor. And for what, Mr. Speaker? History shows us the only winners emerging from H.R. 5 are the medical malpractice insurance carriers--not the doctors, hospitals and patients our friends on the other side of the aisle purportedly seek to help.

I urge you to vote against this ill-conceived and mean-spirited legislation.

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