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Medical Care Access Protection Act of 2006--Motion to Proceed

Location: Washington, DC



Mr. SANTORUM. Mr. President, I am here today to stand in strong support of S. 22 and S. 23. I do so as a Senator from Pennsylvania representing a State that has been racked by the consequences of having a tort liability system that is simply out of balance, out of whack. That imbalance is causing real tragedies to occur on a daily basis in the Commonwealth. People are not getting access to the kind of care they deserve because, as I will lay out in great detail, physicians are leaving the State and hospitals are closing down because of the cost of awards, in particular in areas that serve high-risk patients in some of our communities where there are underserved populations, whether they are inner city or very rural. Patients are not getting access, whether it is to neurosurgery or high-risk obstetrics or orthopedic care and other types of high-risk specialties, and physicians are leaving areas in our State, both rural and urban, because of this liability crisis.

I had hoped that the Commonwealth itself and our State legislature would have responded to this problem. They have tried on a couple of occasions, and the Governor has vetoed legislation to make that happen, and so we are here today to try to solve this problem on a national level.

I believe that while Pennsylvania is severely impacted, probably as much as any State in the country, this is a problem which has national impact. It impacts the Medicare and Medicaid system which this Congress and which the Federal Government pay for. So I do believe it is appropriate for us to consider it.

I wish to make sure that folks understand what we are trying to accomplish. I have had people come to me on more than one occasion and ask questions about why we are trying to limit people's right to sue. No. 1, we are not limiting anybody's right to sue. People can sue a physician or a hospital or a drug company or anybody else in the health care arena. They can sue as many times as they want and as often as they want and for as much as they want. The only thing we are attempting to do as far as a limitation in this bill is to limit the award in one category of damages.

There is, of course, more than one category of damages allowed in most liability suits.

Certainly there are economic damages allowed for income loss, so that if you lost income as a result of the injury you incurred, you have lost the ability to earn future income or some portion of future income, that is fully recoverable. If you have medical bills in the past or going forward--for example, let's say you were left without the use of an arm or maybe you ended up in a wheelchair as a result of medical malfeasance on the part of a provider--there is no limit on the amount of medical recovery you could have. Nothing in the bills we are looking at limit recovery in those areas whatsoever. There are also punitive damages that are available. Punitive damages are damages against someone who does something malicious or willful to harm you in the conduct of providing care, and there is no limit whatsoever on any punitive damages in this legislation.

All we attempt to do is take one category of damages,

which is loosely known as pain and suffering, and try to put a cap on that; we try to quantify that. It is very hard to quantify it in the first place, but we are just trying to say that we want to put a cap on that. Why? Why would you want to put a cap on that? Because in some cases, you look at the harm that has been done to somebody and you say: Wow, I can't even think about how much pain or how much suffering or how that person's life has changed, and I would like to help. Well, the reason we need to put some sort of limitation on it is in order to strike a balance between the desire of our fellow citizens, through a jury or judge, to compensate someone for the injury they had in exchange for the costs associated to our society and to the medical system, which results in other people not getting care.

We can go to a recent conference I attended in Philadelphia where it was relayed to me that we have had I think it is nine maternity wards in the city of Philadelphia close down over the past few years--nine--one most recently in northeast Philadelphia and the last one in the most densely populated area of Philadelphia, an urban population, where the OB ward closed down. So if you live in northeast Philly, which is again the largest area population-wise in the city of Philadelphia, there are no hospitals to deliver babies. You have to come into the Center City area or the neighboring county to get obstetrical care. You have consequences. You have consequences of high-risk pregnancies where people do not get to the delivery room on time and mothers and children are harmed.

One of the reasons I have introduced S. 23, the bill we are going to have a cloture vote on later today in order to proceed, is, in fact, to say that this is of crisis proportion in my State, and even if we can't do a broader bill, let's try to do a narrower bill that deals with the issue of mothers and children to make sure there is care for those particularly vulnerable in our population.

I had an ER doctor in suburban Philadelphia tell me that just over the last couple of years, they have been able to document I think seven people who have shown up in emergency rooms in suburban Philadelphia with head traumas who were not treated because there were no neurosurgeons available on call. There just was no one to come. As a result, seven people are now dead who, had there been someone on call and available, without question would have lived. You ask the question: Who do the family members of those deceased people sue? The answer is they can't sue anybody. They get no recovery. They get nothing. Why? Because we have a system that rewards a very few--maybe justifiably. I am not arguing that their award isn't justifiable. I would probably argue for an enormous amount of money, depending on what the injury is. The question is, How do we balance that person's right to be compensated with another person's right in the future to get health care?

That is what this attempts to do: balance the rights of those who are injured with the rights of those who will be injured if we don't limit those first rights. We see that happening every day in Pennsylvania, and that is one of the reasons I feel so passionate about bringing this legislation to the floor and trying to attempt to do something here on the floor of the U.S. Senate.

What we do in trying to limit rights is actually different from what we have done in the past here. We try to limit the ability to recover--not the right to sue but the ability to recover--in some small way. It most cases, it will be a small way.

What this does is it provides certainty in the insurance market. Right now, you have a category of damages called pain and suffering. I think if you asked 100 people how much suffering--if you took a case and said: How much should this person be awarded for this much suffering, would you get 100 different answers. It is hard to insure against those 100 different answers about what a judge or a jury is going to do. So by putting a limit here, you are then able to quantify for insurance purposes and allow insurance companies to offer reasonable insurance packages for physicians and hospitals, and you put physicians in--this is also important--you put physicians in a position where they are not simply practicing defensive medicine, which drives up the cost of health care precipitously.

The cap we are talking about here is a $250,000 cap on a physician, a $250,000 cap additionally on the health care provider, on the institution where the care is provided. If there is more than one institution, it is a total cap of $500,000, so two or more institutions could combine, for a total of $500,000. So it is a $750,000 total cap, which is three times what we voted on here last session of Congress.

So this is a much higher cap. I have said in the past, both on the floor and around my State, that I thought the $250,000 cap was a bit low, and I feel more comfortable with this cap, and it allows flexibility for the States to do something different. This just takes care of situations where there aren't any caps in place by the State.

So I think we have a situation where we have a bill that puts in a reasonable limitation on damages. Even though I certainly can make the argument that there may be cases where this would be a difficult limit, it is a balance between limiting somebody's recovery and making sure that by doing so, you have access to care for other people who will be harmed if we don't limit that recovery.

I want to talk about the situation specifically in Pennsylvania. This is a tragic situation that we have seen evolve over the past several years where the liability costs have just gone through the roof. We have a situation where, if you look between 1999 and 2005, the 20 most populous States saw a 15-percent to 35-percent increase in the number of Medicare physicians. In Pennsylvania we saw a 10-percent decline in the number of physicians available to treat Medicare patients.

The number of doctors in training who stayed in Pennsylvania? In Pennsylvania we are very blessed with a lot of great medical schools. We train a lot of physicians and train a lot of health care workers generally in Philadelphia and Pittsburgh and in between. Twelve years ago, in 1994, we had a rate of about 50 percent of all the physicians we trained in Pennsylvania stayed in Pennsylvania. Two years ago it was 7.8 percent. We went from 13th in the country, during this time, of the percentage of physicians under the age of 35--we were 13th in the country in the percentage of physicians under the age of 35. Today we are 45th in the country in the percentage of physicians under the age of 35. We have older and older doctors; fewer and fewer are staying. This is a crisis. It is horrible now. It is only going to get worse if we do not do something about it.

Why? If you look at it, the payouts have skyrocketed from $180 million in 1991 to $450 million 2 years ago. The average liability payout per physician--the average is $6,000 nationwide. It is $16,000 in Pennsylvania, almost three times as much. This is a serious problem in our State.

We are looking to Washington, DC, to help. They are saying just in a couple of years we could have a shortfall of nearly 10,000 physicians in the Commonwealth of Pennsylvania. So this is a pressing problem, one I hope we can get to.

Just allow us to bring up the bill, allow us to debate. Here we are, the greatest deliberative body in the world. We have a huge problem in my State, and I suggest we have others stand up and talk about the problem in their States. If you don't like the solution we have put forward, then let's have a debate. Let's have some amendments. Let's talk about how we can change the bill around to move it forward. But not allowing us to bring it up is not a reasonable alternative.

We have heard from folks in our State. This is a petition. We have gotten a whole bunch. I just wanted to reproduce one of the hundreds of petitions we have received, particularly focused on what is going on with our obstetrical care. These are citizens, in this case, from West Reading, PA, who said:

Every day OBGYNs are closing doors because of America's medical liability crisis. Is yours next? We the undersigned are in favor of keeping women's health care availability and strongly urge Congress to enact meaningful legislative relief.

That is what we are trying to accomplish today. It is amazing, the effect of this on--I always say physicians, but it is health care professionals, not just physicians. ``One-third of residents''--

This is from the Department of Health Policy and Management in the Harvard School of Public Health. They did some surveys and talked to physicians out in our State. It says:

One-third of residents in their final or next to last year of residency planned to leave Pennsylvania because of the lack of availability of affordable malpractice coverage. ..... Those who are about to leave Pennsylvania named malpractice cost as the primary reason three times more often than any other factor.

I met with a woman graduating from the University of Pennsylvania in thoracic surgery. She had a decision to make: to come to Washington DC, or stay in Philadelphia. She is from Philadelphia; her family is there. She wants to stay. The cost of malpractice insurance in Washington is $4,000 for her specialty. In Philadelphia, $40,000, 10 times the amount, plus the complexity of not being able to practice the medicine she wants to practice.

Seventy-one percent of residency program directors reported a decrease in retention of residents in the state since the onset of the professional liability crisis. For some programs the decreases were very large.

An environment of mounting liability costs in Pennsylvania appears to have dissuaded substantial numbers of residents in high risk specialties from locating their clinical practices in the state.

This is a serious problem. I am going to talk about it some more. We probably are not going to be successful today, but I will be back on the floor, not just today but in the future to continue to talk about this critical crisis that we have in our commonwealth. It is not just about making sure that we have reasonable malpractice rates. It is about access to care. It is about people who are going to be hurt and are going to die because we have not put this medical liability system in balance. We need to do so and it would be a great start if the Senate would allow us to proceed to that debate today.


Mr. SANTORUM. Mr. President, I want to continue on with some of the comments I was making earlier about the critical situation in Pennsylvania with respect to this liability crisis and a couple of examples of how out of control the system has become. I was at St. Luke's Hospital up in the Lehigh Valley, and I was saddened by the changes that have happened with some of the losses of physicians that have occurred in there. It is one of the growing areas of our State, and this is an area that has been hit with very high rates of malpractice and obviously, as I will discuss here, losing physicians.

I want to talk about a couple of things. One is a case that St. Luke's was involved in that tells you how absurd, and particularly in this case, the jury awards are in Philadelphia, which has been the big problem area in Pennsylvania--some of the jury awards that have come out of Philadelphia.

We had a case in September and October of the year 2000 which involved a baby girl born 3 months premature to a 17-year-old mother whose medical records indicated a crack cocaine addiction. The mother began experiencing complications, including a partial placental abruption and premature labor. The mother was admitted to another hospital for these complications and then transferred to St. Luke's. The mother was placed on strict bed rest and given medication to stop the onset of labor and to prevent progression of the placental abruption. Despite warnings from her doctor about the risks to her baby of premature birth and possible neurological damage, possibly death, the mother, against medical advice, left the hospital. She turned up 3 days later with complete placental abruption and premature delivery could not be avoided at that point. Emergency surgery was performed. The baby was delivered weighing 4.1 pounds. The baby had a common condition with premature babies which is an opening in the heart that usually closes shortly after birth. The baby was treated for 29 days in the neonatal intensive care unit at St. Luke's, was given medication to attempt to close the opening in the heart. The baby had an adverse reaction to the medication. Surgery was required to close the opening. The surgeon was unsuccessful. There were no documented complications in the surgery, no allegations that St. Luke's did anything wrong or improper in her care.

The baby was transferred to another hospital for further surgery. During treatment at the second hospital, the baby had complications, was transferred back to ICU at St. Luke's. Again, no documented complications during the second stay at St. Luke's up until the child's release. The mother during this time gave up parental rights. The baby was adopted down the road by parents who elected not to seek legal action. But--and this is somewhat unknown--somehow or another, an attorney in Philadelphia was appointed the guardian ad litem to the child because of the child's nexus to a second hospital located in Philadelphia County. So the lawyer sued on behalf of the baby without the consent or knowledge of either the actual parent or the adopted parent.

The verdict in the case was $100 million against the hospital--a $100 million verdict in this case. So you wonder: Well, gee, why are we trying to put caps on awards? A $100 million verdict in this case. That verdict would have shut down this hospital, which is a major medical center in the Lehigh Valley. Subsequent to the verdict, they negotiated a settlement for substantially less money. But the bottom line is, you have a situation where things get out of control because bad things happen to people. People are injured. In this case this little baby, because of a whole lot of factors I have detailed, is going to have a tough life. But is it the fault of St. Luke's Hospital? Is it the fault of the physicians who were attending? The answer from all indications is no. But you have someone who feels bad that this child is going to need some help, so you give verdicts of $100 million.

The consequence at St. Luke's was that since 2000, 32 private physicians have left St. Luke's as a direct result of the malpractice insurance crisis. Twelve OB-GYNs, 5 neurosurgeons, 2 pulmonary specialists, 3 orthopods, 3 general surgeons, 2 internists, and 1 pain management specialist. There has been a 44-percent decline in the number of private practice OB-GYN physicians on their medical staff.

One of the reasons I have introduced S. 23 is because it is not just a problem at St. Luke's, it is a problem in Philadelphia, a problem in Pittsburgh. We are down to I think three maternity wards in the city of Pittsburgh. This is a problem across our State. Unfortunately, the heavy hand of politics is played not just here in Washington but also in our State Capitol.

There was a study done that showed that the trial attorneys in America in the 2003-2004 election cycle contributed $182 million to political campaigns--$182 million. That sounds like a lot of money. It is a lot of money. But it is actually a pretty good investment on the part of the trial attorneys. Because for that $182 million, they were able to collect $18 billion in fees--$18 billion in fees. That is a 10,000-percent rate of return. Not a bad investment. So they are investing in the political climate here. They are investing to make sure there is no balance in the system. They are investing because they want to keep things out of whack. They want to keep those 40- and 50-percent awards, the percentages of contingency fees to these big awards, so they can keep the gravy train coming.

That is something our health care system cannot afford. We cannot afford to allow this kind of litigation to be practiced in the health care arena. It is destroying our ability to keep physicians in Pennsylvania. It is destroying our ability to have responsible medicine practiced--not defensive medicine but appropriate medicine and responsible medicine that treats patients the way they should be treated, not the way they need to be treated to avoid possible litigation.

That is not responsible medicine. That is not the medicine physicians want to practice. But, increasingly, in my State, that is the medicine they are practicing, and unless we do something tonight, in a few minutes, they are going to have to continue to practice that way.

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