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Mr. CONYERS. Madam Chair, we're striking the findings. By striking statements of constitutional authority for the bill, the amendment recognizes that many Members of the House question Congress' constitutional authority to pass H.R. 5. So for that reason, my colleagues, the findings are all important. Supporters of states' rights ought to take the next step and eliminate the section of the bill that preempts State law. Indeed, many supporters of the underlying bill have spent years arguing that decisions about health care are fundamentally prerogatives of the State.
So I have only 18 conservative or Republican scholars and leaders that agree with me, including the Heritage Foundation; the Virginia attorney general, Mr. Cuccinelli; the constitutional law professor at Georgetown Law Center; the distinguished Senator from Oklahoma, Mr. Coburn; some of our colleagues, including Judge Ted Poe of Texas, our colleague from Nebraska, Lee Terry, former judge Louie Gohmert, in particular, Ron Paul; the founder of the Tea Party Nation, Judson Phillips.
It goes on and on, where we are all in agreement that the findings are, indeed, critical and ought to be left in the bill. To take the findings out is incredible because we say that the Federal Government shouldn't be involved, that it's a State matter, and tort law, itself, is a State matter.
So for those reasons, Madam Chair, I am pleased to represent a bipartisan group of Members and scholars that very strenuously object to the findings being removed in this Woodall amendment.
Here's what conservative scholars and leaders have to say about this hypocrisy:
Heritage Foundation: Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.
Ken Cuccinelli, Virginia Attorney General: Senate Bill 197 takes an approach that implies ``Washington knows best'' while trampling states'' authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same 1 power to regulate commerce that lies at the heart of all the lawsuits (including Virginia's) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?
And if [S. 197, a medical malpractice bill] it were ever signed into law--by a Republican or Democratic president--would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010.
Randy Barnett, Constitution law professor at Georgetown Law Center and senior fellow at the Cato Institute: This bill [H.R. 5] alters state medical malpractice rules by, for example, placing caps on noneconomic damages. But tort law--the body of rules by which persons seek damages for injuries to their person and property--have always been regulated by states, not the federal government. Tort law is at the heart of what is called the `police power' of states. What constitutional authority did the supporters of the bill rely upon to justify interfering with state authority in this way?
Constitutional law professors have long cynically ridiculed a `fair-weather federalism' that is abandoned whenever it is inconvenient to someone's policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers `reserved to the states' as affirmed by the Tenth Amendment, they will prove my colleagues right.
Senator Tom Coburn (R OK): What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be. Then we are going to have the federal government telling us what our tort laws are going to be in healthcare, and what about our tort laws in everything else? Where does it stop?
One of the things our founders believed was that our 13 separate states could actually have some unique identity under this constitution and maybe do things differently, and I think we ought to allow that process to continue as long as we are protecting human and civil rights.
Congressman Lee Terry (R NE): If you're a true believer in the 10th Amendment, then why are we not allowing the states to continue to create their own laws and decide what's in their best interest for their residents?
Congressman Ted Poe (R TX): The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide--not the federal government. ..... If the people of a particular state don't want liability caps, that's their prerogative under the 10th Amendment. ..... but I have concerns with the current bill as written.
Congressman Louie Gohmert (R TX): The right of the states for self-determination is enshrined in the 10th Amendment ..... I am reticent to support Congress imposing its will on the states by dictating new state law in their own state courts.
Congressman Ron Paul (R TX): The federal government shouldn't be involved. It's a state matter; tort law is a state matter.
Congressman John Duncan (R TN): I have faith in the people--I have faith in the jury system. It's one of the most important elements of our freedom, and it was so recognized in the Constitution, was felt to be so important, it was specifically put into the Constitution in the Seventh Amendment. And I'll tell you, it's a very dangerous thing to take away rights like that from the people.
Senator Mike Lee (R UT) on tort reform: Congress needs to be very careful when it enters into a uniquely state law area like tort. So tort reform needs to be undertaken very carefully insofar as it done at the federal leve1.
Judson Phillips, founder of Tea Party Nation: Some conservatives complain opposing unconstitutional tort reform rewards the trial lawyers. The trial lawyers may benefit from stopping unconstitutional tort reform, but we fight to protect the Constitution. In this case, the trial lawyers are with us supporting the 10th Amendment.
Robert Natelson, senior fellow at the Independence Institute: To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. ..... During the debate over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states.
John Baker, Catholic University law professor: House Republicans hope to nationalize medical malpractice law, which is traditionally a matter of state tort law, by passing H.R. 5, a bill that would wipe out all state medical malpractice laws and complete the nationalization of healthcare. Passage of H.R. 5 would undercut arguments that Obamacare is unconstitutional.
Carrie Severino, chief counsel and policy director at the Judicial Crisis Network: Among other things, S. 197 sets a statute of limitations for claims, caps damages and creates standards for expert witnesses ..... but they are not within the constitutional powers granted to the federal government for the very same reasons Obamacare is not.
The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill's findings state that health care and health insurance are industries that `affect interstate commerce,' and conclude that Congress therefore has Commerce Clause power to regulate them--even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws.
I yield back the balance of my time.
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Mr. CONYERS. I thank the gentleman for his courtesy. But why, as a new Member--and we welcome you to this body--why would we strike all the findings from H.R. 5?
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Mr. CONYERS. Madam Chair, I demand a recorded vote.
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Mr. CONYERS. Just to get the facts into this debate, I rise in strong support of the Bonamici amendment. I include for the Record the Congressional Budget Office letter to Chairman Dreier on March 19 in which the CBO estimates that enacting the provision will increase the deficits, if you use IPAB, by $3.1 billion.
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Mr. CONYERS. To my colleague, Mr. Dent, hold up. You're giving complete immunity to hospitals, physicians, and providers for any emergency activity. Do you want to do away with all liability whatsoever because it's in an emergency room? Of course, you don't. But this amendment requires the Federal Government to pay for the medical errors committed and denies our government any ability to address or reprimand those who commit medical errors. You don't want to do that. You don't want to go that far.
The Federal Government would be responsible for all occurrences of negligence in an emergency room. Please. Ninety-eight thousand patients die every year due to preventable medical errors.
I reserve the balance of my time.
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Mr. CONYERS. But what we're doing in the amendment is to provide immunity to all hospitals and physicians and require the Federal Government to pay for medical errors committed by them.
Look, we have 98,000 patients dying every year due to preventable medical errors. I'm not slamming the docs and the hospitals. I'm saying that we don't want to provide complete immunity.
This Dent amendment, Madam Chairman, does just that: it provides complete immunity.
So I'm asking my colleagues to please slow down and realize that irreparable harm due to negligence in the emergency room--and we've got pages and pages of examples--would be not subject to adjudication because of this amendment. It's a very dangerous amendment. It goes way too far. It's overbroad. And I urge my colleagues to carefully examine the consequences of this provision.
I reserve the balance of my time.
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Mr. CONYERS. Madam Chairman, this amendment would actually lower the incentive to practice safe medicine, and I say this on careful examination.
I'm surprised that my colleague, the leader on the other side, himself a distinguished doctor, would be silent on this provision because it shields hospitals, employed physicians, even physicians who are already covered by private insurance; and physicians working in an emergency room setting will never be held accountable when they wrongfully injure their patient. That is my only reservation and objection to what is otherwise an honorably intended revision of this measure.
When hospitals and emergency room departments are not held accountable for medical errors and for negligence, then they have no incentive to offer quality care or hire competent physicians. Please, I beg you to carefully examine the dangers implicit in the Dent-Sessions amendment.
I yield back the balance of my time.
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Mr. CONYERS. It is my position that within the good that this does is a poison pill. The good is that consumers would also benefit from a repeal of McCarran-Ferguson. We salute you. But the poison pill is that this measure would ban class actions on a claim for violation of antitrust law, which is the cleverest way of ending antitrust law. Unless you have a class action--well, my doctor-Congressman is not a lawyer, but without class actions, you can't bring a claim because nobody's going to file a suit on a $30 issue, 1 million people suing for $30 each. So it's a poison pill.
I'd like to yield such time as he may consume to the gentleman from Oregon (Mr. DeFazio), who had an amendment that had huge bipartisan support.
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Mr. CONYERS. Madam Chairman, the problem here is we don't have a problem. The 1997 law, which is called the Volunteer Protection Act, which I don't recall being mentioned, already provides immunity to all volunteers, not just doctors, to everybody, all volunteers, and has worked very effectively to ensure that nonprofit or government entities remain responsible for background checks.
I remind my colleagues of the Tenth Amendment to the Constitution, which is violated in H.R. 5, which preserves our system of federalism that allows States to legislate their own State tort laws and the qualifications of health care professions. What could be more simple than that?
This is one of the least debated provisions of our great Constitution. And so amendments that limit liability of health care professionals by our Congress and provide a virtual blanket immunity to any individual for any harm while acting in a volunteer capacity during a disaster violates the Tenth Amendment to the Constitution.
Madam Chairman, I reserve the balance of my time.
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