[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
MEDICAL LIABILITY REFORM: CUTTING COSTS, SPURRING INVESTMENT, CREATING
JOBS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JANUARY 20, 2011
__________
Serial No. 112-1
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TOM REED, New York LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
C O N T E N T S
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JANUARY 20, 2011
Page
OPENING STATEMENTS
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Member, Committee on the Judiciary....... 8
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Member, Committee on the Judiciary.. 9
WITNESSES
Ardis D. Hoven, M.D., Chair, Board of Trustees, American Medical
Association
Oral Testimony................................................. 11
Prepared Statement............................................. 13
Joanne Doroshow, M.D., Executive Director, Center for Justice and
Democracy
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Stuart L. Weinstein, M.D., Health Coalition on Liability and
Access
Oral Testimony................................................. 50
Prepared Statement............................................. 52
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Lamar Smith, a Representative
in Congress from the State of Texas, and Chairman, Committee on
the Judiciary.................................................. 3
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Committee on the Judiciary......................... 103
Prepared Statement of the Honorable Linda T. Sanchez, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 106
Prepared Statement of the American Congress of Obstetricians and
Gynecologists (ACOG)........................................... 108
Prepared Statement of the American College of Surgeons........... 114
Study of the American Enterprise Institute (AEI)................. 117
Prepared Statement of Lawrence E. Smarr, President/CEO, Physician
Insurers Association of America................................ 125
MEDICAL LIABILITY REFORM:
CUTTING COSTS, SPURRING INVESTMENT,
CREATING JOBS
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THURSDAY, JANUARY 20, 2011
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:30 a.m., in
room 2141, Rayburn House Office Building, the Honorable Lamar
Smith (Chairman of the Committee) presiding.
Present: Representatives Smith, Sensenbrenner, Coble,
Gallegly, Goodlatte, Lungren, Chabot, Forbes, King, Franks,
Gohmert, Poe, Chaffetz, Reed, Griffin, Marino, Gowdy, Ross,
Adams, Quayle, Conyers, Nadler, Scott, Watt, Jackson Lee,
Waters, Johnson, Pierluisi, Quigley, Deutch, Sanchez, and
Wasserman Schultz.
Staff Present: (Majority) Allison Halataei, Counsel; Paul
Taylor, Counsel; and Perry Apelbaum, Minority Staff Director
and Chief Counsel.
Mr. Smith. The Judiciary Committee will come to order.
Welcome everybody. I appreciate the Members who are here,
as well as our witnesses. And it is nice to see so many people
in the audience interested in such an important subject, as
well.
One quick announcement, I think as most Members know but
not everybody else may know, is that we are expecting votes in
about 15 minutes. However, we are only having two votes, so we
will be taking a recess for about 20 minutes but then we will
return to resume the hearing.
I am going to recognize myself for an opening statement,
then turn to the Ranking Member for his opening statement, as
well.
The purpose of this hearing is to discuss the need to
reduce the waste in our health-care system caused by defensive
medicine. This practice occurs when doctors are forced by the
threat of lawsuits to conduct tests and prescribe drugs that
are not medically required.
According to a Harvard University research study, 40
percent of medical malpractice lawsuits filed in the United
States lack evidence of medical error or any actual patient
injury. But because there are so many lawsuits, doctors are
forced to conduct medical tests simply to avoid a possible
lawsuit.
Taxpayers pay for this wasteful defensive medicine, which
adds to all of our health-care costs without improving the
quality of patient care.
A survey released last year found defensive medicine is
practiced by nearly all physicians. President Obama, himself,
acknowledged the harm caused by defensive medicine, stating,
quote, ``I want to work to scale back the excessive defensive
medicine that reinforces our current system and shift to a
system where we are providing better care rather than simply
more treatment,'' end quote.
Yet the health-care legislation he signed does nothing to
prevent defensive medicine. In fact, it makes matters worse by
allowing trial lawyers to opt out of any alternatives to
health-care litigation proposed by the States and by exposing
doctors to even more lawsuits if they fall short of any of the
many new Federal guidelines the law creates. The encouragement
of lawsuit abuse will not only make medical care much more
expensive, it will also drive more doctors out of business.
The Judiciary Committee will consider alternative health-
care lawsuit reforms modeled on California's reforms, which
have been in effect for over 30 years. Those reforms have a
proven record of reducing defensive medicine, reducing health-
care costs, and increasing the supply of doctors.
There is a clear need for reform at the Federal level. Many
state Supreme Courts have nullified reasonable litigation
management provisions enacted by State legislatures. In such
States, passage of Federal legislation by Congress may be the
only means of addressing the State's current crisis in medical
professional liability and restoring patients' access to
quality health care.
Further Federal legislation is needed to stem the flow of
doctors from one State to another, as they flee States to avoid
excessive liability cost. Doctors should feel free to practice
medicine wherever they want, and patients everywhere should be
able to obtain the medical care they need.
Last year, the Congressional Budget Office determined that
a legal reform package would reduce the Federal budget deficit
by an estimated $54 billion over the next 10 years, and that
was a conservative estimate. Another CBO report estimates that
premiums for medical malpractice insurance ultimately would be
an average of 25 percent to 30 percent below what they would be
under current law.
The Government Accountability Office has found that rising
litigation awards are responsible for skyrocketing medical
professional liability premiums. Its report states that the GAO
found that ``losses on medical malpractice claims, which make
up the largest part of insurers' cost, appear to be the primary
driver of rate increases in the long run,'' end quote. The GAO
also concluded that insurer profits, ``are not increasing,
indicating that insurers are not charging and profiting from
excessively high premium rates.''
The National Commission on Fiscal Responsibility and
Reform, which was created by President Obama, also supports
health-care litigation reform in its 2010 report. ``Many
members of the Commission also believe that we should impose
statutory caps on punitive and noneconomic damages, and we
recommend that Congress consider this approach and evaluate its
impact.''
As a USA Today editorial concluded, one glaring omission
from the health-care law was the significant tort reform, which
was opposed by trial lawyers.
I look forward to hearing from our witnesses today, who
will help us assess the extent of the current health-care
litigation cost.
And I am now pleased to welcome the remarks of the Ranking
Member, Congressman John Conyers.
[The prepared statement of Mr. Smith follows:]
__________
Mr. Conyers. Thank you, Chairman Smith and Members.
This is our first hearing in the 112th session. And I would
like to just add for your consideration my recommendations that
we review, in connection with health care, the antitrust
exemption that health insurance companies enjoy, the McCarran-
Ferguson exemption, and that the Sunshine Litigation Act that
ensures and prevents secret settlements from being used to
endanger the public safety or shield those who may be guilty of
fraudulent acts, including the medical community, that, in
turn, would protect all patients and protect professionally
responsible doctors from abuse of claims of wrongdoing.
And then you remember the act that me and a former Member,
Campbell, introduced that empowers doctors to negotiate an even
playing field with health insurers.
So I would like us to kindly consider those measures that
might be more important than an oversight hearing on a subject
matter that Members of Congress have already announced that
they are going to introduce, namely H.R. 5, which I expect will
be coming down the pike one day next week. The letters are
already circulating on it.
And so I find that an oversight hearing for a bill that is
being written to be the subject will come straight to our
Committee. It isn't exactly reverse, but there is a certain
irony in the way this is coming off today, and I just wanted to
put it in the record.
Now, legislative hearings should be held prior to the
oversight hearings. But, also, I hope that we can get into the
issue of the shortage of doctors in rural areas, which is
critical and which many of us view would be increased by a cap
on medical liability, this $250,000 cap. Most of our witnesses
here today realize that that may have a perverse effect before
it is all over with.
Now, about the large number of cases filed, one out of
every eight cases filed ever results in a lawsuit. And that is
because, with the statute of limitations, attorneys have to
include in the filings many people who may not be involved and
are usually excluded from any trial liability but they get
counted as the ones that are sued. So I am looking forward to a
discussion about that.
Now, we have States that constitutionally preclude any
limitation on Medicare damages. Kentucky and Iowa limit the
damages. Dr. Hoven is from Kentucky; Dr. Weinstein is from
Iowa. And Kentucky is one of the four States that
constitutionally prohibit limits on damages. But there are
other States--Arizona, Pennsylvania, Wyoming, including the
trauma center that provided such excellent care to our
colleague, Gabby Giffords, are all, I think, under some danger
presented by some of the trends that we are expecting in H.R.
5. And I think that is something we ought to consider.
I close with just a comment about the real cost of medical
malpractice claims. They are only a fraction of the real cost.
And I end on this note. The sixth-largest cause of death in the
United States of America, medically, are malpractice cases.
And so I hope that, as this discussion rolls out this
morning, we will be considering what we do with the hundreds of
thousands of people that could be adversely affected, whose
lifetime costs--even though they are innocent and the case is
supported by the court and judgments are entered, but with a
$250,000 cap, as many of us know on all the hearings we have
had prior to now, that this would be very minimal, indeed.
And I thank you for the time.
Mr. Smith. I thank the Ranking Member for his comments.
We are now going to take a short recess so Members may
vote. When we return, I will recognize the Chairman and Ranking
Member of the Constitutional Law Subcommittee for their opening
statements. They have jurisdiction over this particular issue.
And then we will get to our witnesses.
So we stand in recess until about 20 minutes from now.
[Recess.]
Mr. Smith. The Committee will resume our hearing.
And I will now recognize the Chairman of the Constitutional
Law Subcommittee, the gentleman from Arizona, Mr. Franks, for
his opening statement. And then we will go to the Ranking
Member of the Constitutional Law Subcommittee.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, the medical liability litigation system in
the United States, I think, by all accounts, is broken and in
desperate need of reform. The current system is as ineffective
a mechanism for adjudicating medical liability claims as it can
be, which leads to increased health-care costs, unfair and
unequal awards for victims of medical malpractice, and reduced
access to health care for all Americans.
Only reforms to the system at the Federal level can address
the current national medical liability crisis. Unfortunately,
the massive health-care overhaul that President Obama signed
into law last year did not meaningfully address medical
liability reform. Thus, we are here today to examine this
continuing problem and evaluate national solutions to this,
what I believe to be a crisis.
One of the largest drivers of this crisis is the practice
of defensive medicine. Defensive medicine leads doctors to
order unnecessary tests and procedures--not, Mr. Chairman, to
ensure the health of the patient, but out of fear of
malpractice liability.
The cost of defensive medicine is, indeed, staggering.
According to a 2003 Department of Health and Human Services
report, the cost of defensive medicine is estimated to be more
than $70 billion annually. Additionally, medical liability
litigation increases the cost of health care by escalating
medical liability insurance premiums. This, in turn, of course,
leads to higher costs throughout the entire health-care system
and reduces access to medical services.
However, Mr. Chairman, despite the increased costs medical
liability litigation imposes, this litigation fails to
accomplish its ostensible purpose, the goals of tort law in the
first place, and that is fairly compensating the victims and
deterring future negligence.
The system fails to compensate victims fairly for several
reasons. First, according to the studies, the vast majority of
incidents of medical negligence do not result in a claim, and
most medical practice claims exhibit no evidence of
malpractice. So, victims of malpractice, or most of them, go
uncompensated, and most of those who are compensated are not
truly victims.
Mr. Chairman, medical malpractice awards vary greatly from
case to case, even where the claims and injuries are virtually
identical. And, finally, attorneys regularly reduce damages
awarded to victims by more than 40 percent through fees and
costs.
Moreover, there appears to be little evidence to suggest
that the current medical liability system deters negligence.
Rather, the available evidence seems to suggest that the threat
of litigation causes doctors not to reveal medical errors and
to practice defensive medicine. And this, of course, subjects
patients to unnecessary tests and treatments once again.
So we must reform the medical liability system in the
United States, Mr. Chairman. Among other benefits, reform could
do some of the following. It could lead to a significant
savings on health care; it could reduce the practice of
defensive medicine; halt the exodus of doctors from high-
litigation States and medical specialties; improve access to
health care; and save the American taxpayers billions of
dollars annually while increasing the affordability of health
insurance.
Mr. Chairman, meaningful medical liability reforms have
worked in States such as California and Texas, and it is time
for action at the Federal level to extend the benefits of
reform to all Americans.
And I thank you for the time and yield back.
Mr. Smith. Thank you, Mr. Franks.
The gentleman from New York, Mr. Nadler, the Ranking Member
of the Constitutional Law Subcommittee, is recognized for his
opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, I had not prepared an opening statement
because I didn't know that we were going to have opening
statements for Rankings and the Chairmen of the Subcommittees,
but I will make an opening statement nonetheless.
I have always believed that this problem is the wrong
problem and it is a solution in search of a problem.
If you look at the evidence over many years--and I have
looked at the evidence in 1986 consideration of reforms to this
problem in the New York State assembly when I was a member
there, so I have been involved with this off and on for 25
years--you find that the real problem is not the excessive cost
of malpractice--or that the excessive cost of malpractice
insurance is not caused by lack of the so-called tort reforms
that are being advanced here and that have been advanced over
the years--namely, making it harder to get attorneys, capping
fees, or capping recoveries--that capping these recoveries
would simply be unfair to people who are very seriously
injured.
First of all, we know that most people who suffer real
damage as a result of medical negligence never sue. So the
amount of recovery is very small compared to the amount of
cost.
Secondly, study after study has found that the real problem
is that the States--and some people might say the Federal
Government should do it, but that is a separate discussion--but
the States, in any event, whose job it is under current law,
are not disciplining doctors, that something like 90 or 95
percent of the claims dollars that are awarded come from 2 or 3
percent of the doctors. Those 2 or 3 percent of the doctors are
hurting patients, killing patients, and should not be
practicing medicine. They should be stripped out of practice.
And if they did, everybody else's malpractice premiums would go
down because the amount of costs would go way down, and the
other 97 or 98 percent of doctors would find their malpractice
premiums much reduced.
Now, what do we find from the kinds of proposals that we
consider? Number one, in May 2009, WellPoint, a major
malpractice insurer, said that liability was not driving up
health insurance premiums.
An economist at Harvard University, Amitabh Chandra, in an
article, ``Malpractice Lawsuits are 'Red Herring' in Obama
Plan,'' published by Bloomberg in June of last year, concluded
that, quote, ``Medical malpractice dollars are a red herring''
for the system's failures. ``No serious economist thinks that
saving money in med mal is the way to improve productivity in
the system. There are so many other sources of inefficiency.''
We know that preventable medical errors kill as many as
98,000 Americans each year, at a cost of $29 billion, and these
proposals would do nothing about that.
We are told that the defensive medicine is costing us huge
amounts of money and increasing the cost of the medical system
as a whole. And yet the GAO, the Government Accountability
Office, issued a statement saying, quote, ``The overall
prevalence and costs of [defensive medicine] Have not been
reliably measured,'' so we don't really know. ``Studies
designed to measure physicians' defensive medicine practices
examined physician behavior in specific clinical situations,
such as treating elderly Medicare patients with certain heart
conditions. Given their limited scope, the study results cannot
be generalized to estimate the extent and cost of defensive
medicine practices across the health-care system,'' unquote.
Multiple GAO studies have concluded that eliminating
defensive medicine would have only a minimal effect on reducing
overall health-care costs.
But the proposals that I assume we will have before us,
which are the proposals that are introduced by our colleagues
on the other side of the aisle every single year, all have in
common putting a $250,000 limit on noneconomic damages--that is
to say, on damages other than direct medical costs and lost
wages, which may be the main damages for someone whose wages
you can't measure, like a college student or a child because
you don't know what his wages are going to be or would have
been.
But $250,000 is not very much. Now, MICRA in California was
enacted in 1976, and they felt that $250,000 was a reasonable
amount then. In today's dollars--or, rather, in 1975 dollars,
that is now worth $62,000. Would they have enacted a $62,000
cap in 1975? And if we wanted to take their $250,000 and
inflate it to keep it at the same value, it would be over a
million dollars today. So if we are going to pass this kind of
legislation, which I hope we won't, at the least we should put
in an inflation factor and start at a million dollars if we
want to duplicate what MICRA did in California.
And, of course, in California, MICRA did not reduce the
premiums at all. They went up, from 1975 to 1988, by 450
percent. Only after insurance reform was enacted in 1988 by
California did the insurance premiums level off and actually go
down a bit. For the 13 years--a perfect experiment--for the 13
years during which California had the tort reform but not the
insurance reform, the premiums went up 450 percent. When the
insurance reform was enacted, premiums went down 8 percent. So
maybe we should be talking about insurance reform instead of
tort reform. But, unfortunately, that is not in front of his
Committee.
So I think we are off on the wrong track if we are
concentrating on this. And I see the red light is on. I
apologize for exceeding my time, and I yield back whatever time
I don't have left.
Mr. Smith. Thank you, Mr. Nadler.
And, without objection, other Members' opening statements
will be made a part of the record. And now I will introduce our
witnesses.
And our first witness is Dr. Ardis Hoven, chair of the
American Medical Association Board of Trustees. Prior to her
election to the board, Dr. Hoven served as a member and chair
of the AMA Council on Medical Service. She was a member of the
Utilization Review and Accreditation Commission for 6 years and
served on its executive committee. Most recently, she was
appointed to the National Advisory Council for Healthcare
Research and Quality.
We welcome you.
Our second witness is Joanne Doroshow, executive director
of the Center for Justice and Democracy. Ms. Doroshow is the
founder of the Center for Justice and Democracy and cofounder
of Americans for Insurance Reform. She is an attorney who has
worked on issues regarding health-care lawsuits since 1986,
when she directed an insurance industry and liability project
for Ralph Nader.
Welcome to you.
Our third witness is Dr. Stuart L. Weinstein, a physician
spokesman for the Health Coalition on Liability and Access. Dr.
Weinstein is a professor of orthopedic surgery and professor of
pediatrics at the University of Iowa. He is a former chair of
Doctors for Medical Liability Reform.
And we welcome you, as well.
Just a reminder, each of the witnesses' testimonies will be
made a part of the record. We do want you to limit your
testimony to 5 minutes. And there is a light on the table that
will indicate by its yellow light when you have 1 minute left,
and then the red light will come on when the 5 minutes is up.
So we look forward to your testimony, and we will begin
with Dr. Hoven.
TESTIMONY OF ARDIS D. HOVEN, M.D., CHAIR, BOARD OF TRUSTEES,
AMERICAN MEDICAL ASSOCIATION
Dr. Hoven. Thank you, and good morning, Chairman Smith,
Ranking Member Conyers, and Members of the Committee on the
Judiciary. As stated, I am Dr. Ardis Hoven, chair of the
American Medical Association Board of Trustees and a practicing
internal medicine physician and infectious disease specialist
in Lexington, Kentucky.
On behalf of the AMA, thank you for holding this hearing
today to talk about this very important issue.
This morning, I will share with you results from AMA
studies that prove how costly and how often unfair our medical
liability system is to patients and physicians. Most
importantly, I will talk about a solution. That solution is a
package of medical liability reforms based on reforms that have
already been proven effective in States like California, Texas,
and Michigan.
Our current medical liability system has become an
increasingly irrational system, driven by time-consuming
litigation and open-ended, noneconomic damage awards that bring
instability to the liability insurance market. It is also an
extremely inefficient mechanism for compensating patients
harmed by negligence, where court costs and attorney fees often
consume a substantial amount of any compensation awarded to
patients.
Let me share with you some of the alarming statistics from
an August 2010 AMA report that shows how lawsuit-driven our
system has become.
Nearly 61 percent of physicians age 55 and older have been
sued. Before they reach the age of 40, more than 50 percent of
obstetricians/gynecologists have already been sued. And 64
percent of medical liability claims that closed in 2009 were
dropped or dismissed. These claims are clearly not cost-free.
And let's also not forget the emotional toll on physicians and
their patients involved in drawn-out lawsuits, which is hard to
quantify.
Out of fear of being sued, physicians and other health-care
providers may take extra precautionary measures, known as ``the
practice of defensive medicine.'' A 2003 Department of Health
and Human Services report estimated the cost of the practice of
defensive medicine to be between $70 billion and $126 billion
per year. Every dollar that goes toward medical liability costs
is a dollar that does not go to patients who need care, nor
toward investment in physician practices, a majority of which
are small businesses that create jobs that benefit local and
State economies.
The good news is there are proven examples of long-term
reforms that have kept physicians' liability premiums stable,
but, more importantly, have insured and protected patients'
access to health care.
Back in 1974, California was experiencing many of the
problems we are facing today. In response, California's
legislature enacted a comprehensive package of reforms called
the Medical Injury Compensation Reform Act of 1975 over 35
years ago, which is now commonly referred to as ``MICRA.''
While total medical liability premiums in the rest of the
U.S. rose 945 percent between 1976 and 2009, the increase in
California premiums was less than one-third of that at just
about 261 percent.
Recent public polls found that a majority of Americans
support reasonable limits on noneconomic damages and believe
that medical liability lawsuits are a primary reason for rising
health-care costs.
We look forward to the introduction of the HEALTH Act that
mirrors California's reforms and also protects current and
future medical liability reforms at the State level.
By supporting patients' safety initiatives alongside
enacting meaningful medical liability reform like the HEALTH
Act, Congress has the opportunity to protect access to medical
services, reduce the practice of defensive medicine, improve
the patient-physician relationship, support physician practices
and the jobs they create, and curb a wasteful use of precious
health-care dollars: the costs, both financial and emotional,
of health-care liability litigation.
On behalf of the AMA, I would like to extend our
appreciation for the leadership of the committee. And the AMA
looks forward to working with you all to pass Federal
legislation that would bring about meaningful reforms.
And thank you.
[The prepared statement of Dr. Hoven follows:]
Prepared Statement of Ardis D. Hoven
__________
Mr. Smith. Dr. Hoven, thank you.
And Ms. Doroshow?
TESTIMONY OF JOANNE DOROSHOW, M.D., EXECUTIVE DIRECTOR, CENTER
FOR JUSTICE AND DEMOCRACY
Ms. Doroshow. Thank you, Mr. Chairman, Mr. Conyers, Members
of the Committee.
The Center for Justice and Democracy, of which I am
executive director, is a national public interest organization
that is dedicated to educating the public about the importance
of the civil justice system. This is the fourth time I have
been asked to testify before a congressional Committee in the
last 9 years on this very important subject of medical
malpractice, and I am honored to do so.
I also spoke at two different informal hearings, chaired by
Mr. Conyers, which featured families, including children, from
all over the country, whose lives were devastated as a result
of medical negligence. One of those hearings lasted 4 hours, as
victim after victim told their stories and pleaded with
Congress not to cap damages and enact tort reform. They are all
paying rapt attention today from afar, and I will do my best to
represent them. But I do hope this Committee decides to hear
from them directly, because these families are always the
forgotten faces in the debate about how to reduce health-care
and insurance costs.
While I understand this is an oversight hearing and we do
not know what bills yet may be considered by the Committee,
typically the push has been for caps on noneconomic damages and
other measures that force patients who are injured by medical
negligence or the families of those killed to accept inadequate
compensation. Meanwhile, the insurance industry gets to pocket
money that should be available for the sick and injured, and
they force many to turn elsewhere, including Medicaid, further
burdening taxpayers.
And, by the way, with regard to the California situation,
rates did not come down in California for doctors until 1988,
when insurance regulatory reform was passed. It was not due to
the cap.
These measures will also reduce the financial incentive for
hospitals to operate safely, which will lead to more costly
errors. In fact, when the Congressional Budget Office looked
into it, they looked at several studies that looked at the
negative health outcomes of tort reform, and one of them found
it would lead to a 0.2 percent increase in mortality and the
overall death rate in this country. That is another 4,000
killed.
Now, while I cover many issues in my written statement, I
want to highlight a few other points.
First of all, there is an epidemic of medical malpractice
in this country. It has been over a decade since the Institute
of Medicine study finding 98,000 dying in hospitals each year,
costing $17 billion to $29 billion, and experts agree there has
been no meaningful reduction in medical errors in the United
States. In fact, in November, just last November, HHS reported
that 1 in 7 hospital patients experience a medical error; 44
percent are preventable.
Second, medical malpractice claims and lawsuits are in
steep decline, according to the National Center for State
Courts and the insurance industry's own data. Plus, to quote
from the Harvard School of Public Health study that the
Chairman mentioned, ``Portraits of a medical malpractice system
that is stricken with frivolous litigation are overblown, and
only be a tiny percentage of med mal victims ever sue.'' In
fact, this is the press release from Harvard, issuing that
study, that said, ``Study casts doubt on claims that the
medical malpractice system is plagued by frivolous lawsuits.''
Med mal premiums have been stable and dropping since 2006.
And if you read the industry's trade publications, you will
find out that insurers so overpriced policies in the early part
of the last decade that they still have too much money in
reserves and that rates will continue to fall. And this has
happened whether or not a State has enacted tort reform.
As far as Texas, health-care costs did not come down when
caps passed, at all. Applications for new licenses are only
part of the picture. When it comes to physicians engaged in
patient care--in other words, considering physicians who
retire, leave the State, or stop seeing patients--the data
shows that the per capita number has not grown. In fact, the
number grew steadily through 2003 and then leveled off. This is
not a pattern you would expect if 2003 tort reform law was
responsible.
When competing for physicians, Texas is more hampered by
the extraordinary size of its uninsured population, which
exceeds just about every other State.
In terms of defensive medicine, CBO found that was not
pervasive, 0.3 percent, from slightly less utilization of
health-care services, but even this is too high. What CBO did
not consider, for example, are the burdens on Medicaid when
there are no lawsuits or the fact that Medicare and Medicaid
have liens and subrogation interests in a judgment, so if the
lawsuit can't be brought, they can't be reimbursed. All of
these costs need to be added in.
Finally, these bills all ignore the insurance industry's
major role in the pricing of medical malpractice insurance
premiums, an industry that is exempt from antitrust laws under
the McCarran-Ferguson Act. This needs to be repealed.
We need to do more to weed out the small number of doctors
responsible for most malpractice and reduce claims, injuries
and deaths, and lawsuits.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Doroshow follows:]
Prepared Statement of Joanne Doroshow
__________
Mr. Smith. Thank you, Ms. Doroshow.
Dr. Weinstein?
TESTIMONY OF STUART L. WEINSTEIN, M.D.,
HEALTH COALITION ON LIABILITY AND ACCESS
Dr. Weinstein. Thank you, Chairman Smith and Ranking Member
Conyers, for holding this important hearing to consider fixing
our country's broken liability system.
I am Stuart Weinstein. I am the Ponseti Chair and professor
of orthopedic surgery and professor of pediatrics at the
University of Iowa. I have been a practicing pediatric
orthopedic surgeon for more than 35 years. I am the past
president of the American Academy of Orthopedic Surgeons and
the American Orthopedic Association.
I would like to begin today by asking each of you to put
yourself in someone else's shoes. Imagine you are a young,
pregnant mother living in rural America with no OB/GYN
practitioner or your local hospital has closed its door to
obstetrics. Or imagine you are a young doctor, saddled with
debt, trying to pick a specialty. Despite the great need for
OB/GYNs, neurosurgeons, trauma physicians, and general
surgeons, you choose a safer specialty because of risk of
lawsuit. And, finally, imagine you are an orthopedic surgeon,
in practice for three decades, but you are facing similar high
costs for liability insurance and the threat of potential
litigation. To reduce your liability, you decide to avoid high-
risk cases like trauma cases, or maybe you decide to retire
altogether.
Dilemmas like these play out across America every day, as
medical lawsuit abuse undermines both our health-care system
and the doctor-patient relationship. Moreover, medical lawsuit
abuse is driving up health-care costs at a time when we are
still reeling from one of the worst recessions in modern times.
I am here today to ask you to create a climate for patient-
centered care by reforming the medical liability system that
continues to put everyone's health care at risk. The current
system is clearly broken, and there is widespread agreement
amongst lawmakers, health-care policy experts, opinion leaders,
and the public that reform is needed.
Today, more than 90 percent of OB/GYNs have been sued at
least once. One-third of orthopedic surgeons, trauma surgeons,
emergency doctors, and plastic surgeons are sued in any given
year, and neurosurgeons once every 2 years, on the average.
And, as you know, most claims are without merit. This toxic
litigation environment is fundamentally changing the doctor-
patient relationship. It is driving doctors to get out of
medicine or to practice defensive medicine.
Defensive medicine is the antithesis of health-care reform
because it increases health-care costs. And it has the
potential to lessen access to care and quality of care in two
ways.
First, doctors practice assurance behavior, which includes
ordering tests, particularly imaging studies, performing
diagnostic procedures or referring patients in order to provide
an extra layer of protection against abusive lawsuits. A recent
Gallup survey found that the fear of lawsuits was the driver
behind 21 percent of all tests and treatments ordered by
doctors, which equates to 26 percent of all health-care
dollars, a staggering $650 billion.
Defensive medicine also includes avoidance behaviors, where
doctors eliminate high-risk procedures like head injury, trauma
surgery, vaginal deliveries, or procedures prone to
complications, and they avoid patients with complex problems or
patients who seem litigious.
In 2008, almost half of America's counties had no
practicing obstetricians. This shouldn't be happening in
America. And, unfortunately, the PPACA was not comprehensive
reform, as it didn't address this critical issue.
There are remedies to fix this broken system, but it is
imperative that we act now before defensive medicine practices,
and costs associated with it, becomes the standard of care,
before health-care costs go higher and unemployment along with
it, before doctor shortages change the very nature of our
health-care system.
Successful reform efforts in States, especially California
and Texas, have given us a blueprint for Federal medical
liability reform legislation. HCLA has outlined several
legislative proposals that preserve State laws already working
effectively to make the medical liability system fair for both
patients and health-care providers, but also broaden coverage
across the Nation.
I would like to close by telling you about a Maryland
gynecologist, Dr. Carol Ritter, who stopped delivering babies
in 2004 when her liability premiums hit $120,000 a year. She
couldn't deliver enough babies to pay the trial bar's tab.
Today, Dr. Ritter maintains a gynecology practice and still
delivers babies, but she does it in Haiti and Honduras and
Bosnia, where she joins relief efforts helping women in these
impoverished places get obstetrical care, including delivering
babies. She says she does it for the sheer joy of what she does
best, but she can't do it in Maryland.
I would say to you today that something is very wrong when
a caring, committed physician like Dr. Ritter can't bring an
American baby into this world for fear of frivolous lawsuits.
Ladies and gentlemen, you have the ability and, I think, the
responsibility to help right that wrong.
Thank you very much.
[The prepared statement of Dr. Weinstein follows:]
Prepared Statement of Stuart L. Weinstein
__________
Mr. Smith. Thank you, Dr. Weinstein.
And I will recognize myself for questions and, Dr. Hoven, I
would like to address my first question to you.
You heard mentioned a while ago and you know, of course,
that the Congressional Budget Office estimates that we would
save $54 billion over 10 years if we reduce the cost of
defensive medicine.
There are other studies--for instance, the Pacific Research
Institute says that defensive medicine costs $191 billion. A
Price Waterhouse Coopers study puts it at $239 billion. And
Newsweek reports that, all told, doctors order $650 billion in
unnecessary care every year.
I don't know which of those figures is correct, but they
all point to the same direction, which is defensive medicine is
expensive and costs, let's say, at a very minimum, tens of
billions of dollars, probably, every year.
My question is this: Who pays for the cost of all that
defensive medicine?
Dr. Hoven. Thank you.
We all pay for the cost of that defensive medicine. At the
end of the day, patients pay for it. We pay taxes that pay for
it. We all pay, ultimately, for the cost of that defensive
care.
Now, it is very important to realize, in the culture of
fear in which we are all practicing medicine now--and I use
that term because I think it is very real--that most physicians
want to practice medicine the best possible way they can. They
want to do the best job they can. But what they recognize is
that their clinical judgment is not allowed to carry any weight
in the court of law, so that, in fact, we do these things for
assurance to protect ourselves. And, at the end of the day,
that is where those costs do come around.
Mr. Smith. Yeah, okay. Thank you, Dr. Hoven.
Dr. Weinstein, the Congressional Budget Office estimates
that, if we were to enact medical liability reform, premiums
would drop 25 to 30 percent. Who benefits from a drop in
premiums of 25 to 30 percent? Or maybe I should say, is the
benefit limited to the physician and medical personnel or not?
Dr. Weinstein. I think, ultimately, Mr. Chairman, is that
when medical liability premiums begin to drop, the culture of
fear amongst physicians eventually will change. This is a
cultural change that will have to occur over time. And once
that cultural change occurs, then the practices of defensive
medicine, which you have heard about over and over again, will
eventually change, as well, and our health-care costs will go
down. So, ultimately, patients and the American public will
benefit.
Mr. Smith. Patients and the consumers benefit.
My last question is to both Dr. Weinstein and Dr. Hoven.
And I want to ask you all to respond to a point that Ms.
Doroshow made, where she said that, basically, it wasn't
medical liability reform that reduced premiums, it was
insurance reform. And she gave the example of California.
Who would like to respond? Either California or Texas.
Dr. Hoven?
Dr. Hoven. I will go first.
It takes 8 to 10 years to see the effects of these reforms
when they are enacted. There really is not firm, hard evidence
that, in fact, the insurance change was the result. It was the
fact that, across the country, it takes 8 to 10 years to begin
to see the evolution of change when these reforms are put in
place.
Mr. Smith. Okay.
And Dr. Weinstein?
Dr. Weinstein. Mr. Chairman, I think that all would agree
that the system in California compensates the patients in a
much more rapid fashion and also more appropriate, so that
patients who are indeed injured get the majority of the reward.
Mr. Smith. Okay.
And, Dr. Weinstein or Dr. Hoven, respond to this, if you
would. In regard to the California insurance reform--I am
looking at a newspaper article. It said that Proposition 103
that required a rollback of insurance premiums and not
California's health-care litigation reforms have controlled
medical professional liability premiums. That is the assertion.
But, according to the Orange County Register, ``A rollback
under Proposition 103 never took place because the California
Supreme Court amended Proposition 103 to say that insurers
could not be forced to implement the 20 percent rollback if it
would deprive them of a fair profit.''
So it is hard to see the correlation, therefore, between
the insurance reform and the drop in premiums. And, clearly,
the drop in premiums were a result of the medical liability
reforms.
I thank you all for your responses, and I will recognize
the Ranking Member for his questions.
Mr. Conyers. Thanks, Chairman.
And I thank the witnesses.
Where are we now in terms of the Health Care Reform Act,
which sometimes is derogatorily referred to as ObamaCare--I use
the term because I think it is going to go down historically as
one of the great advances in health care.
But didn't the Health Care Reform Act, which still, by the
way, is the law of the land and will be until the President
signs the repeal, which I wouldn't recommend anybody to hold
their breath on--we provided money for examining this very same
subject, Section 10607.
Does anybody know anything about that here?
Yes, sir?
Dr. Weinstein. Mr. Conyers, are you referring to the
demonstration projects?
Mr. Conyers. Yes, the $50 million for a 5-year period
that--demonstration grants for the development to States for
alternatives to current tort litigation. That is right.
Dr. Weinstein. If I could address that question, I would
say that the way the demonstration projects--which haven't been
funded, I don't believe, yet--but the way the demonstration
projects are outlined, I believe that the patients can then
withdraw at any time and choose another alternative.
And I am a full-time educator/clinician scientist, and I
would say, when you design a research study which allows
patients to cross over or change, you don't get good
information at the end of the day. That is not the good
scientific method, if you will, if you want to find out what
works best. So I would argue that the way that is designed has
a flaw to it.
And, also, there have been demonstration projects across
the States for a number of years.
Dr. Hoven. If I could comment?
Ms. Doroshow. Could I----
Mr. Conyers. Sure, you can.
Ms. Doroshow. Actually, in conjunction with that provision
in the health-care bill, HHS has actually awarded, now, a
number of grants to many States, up to $3 million, to develop
alternative procedures and other kinds of patient-safety-
oriented litigation reforms.
So those grant proposals were already given; there was
money. And these demonstration projects are in the process of
being explored right now at the State level. I live in one
State where that is true, New York.
Mr. Conyers. Well, are we here--can I get a response from
all of our witnesses about the whole concept of providing
health care for the 47 million or more people that can't afford
it? Are any of you here silently or vocally in support of a
universal health-care plan?
Dr. Hoven. If I may speak to that, sir?
Mr. Conyers. Sure.
Dr. Hoven. The American Medical Association recognizes that
the PPACA is not a perfect bill, but it is a first step in
getting us to where we need to be in this country--medical
liability reform, alternative mechanisms for dispute resolution
that are to be funded through that legislation are under way as
we speak.
We in no way support a mechanism that does not recognize
that every person in this country needs affordable care and
access to quality health care.
Mr. Conyers. Well, the bill that was just repealed
yesterday provided for millions of more people getting health
care because we raised the ceiling on Medicaid and we allowed
the inclusion of children in the parents' health-care plan
until age 26, a 7-year increase. Did that help any?
Dr. Hoven. We will wait and see.
Mr. Conyers. We will wait and see? You mean you will wait
to see if there are any parents that want to keep their kids
included for 7 more years? I haven't found one yet that doesn't
want that provision in the bill.
Dr. Hoven. Let me go back to my earlier comments. Access to
care for everyone is what we want and need in this country.
Mr. Conyers. Well, I know it. Yeah, that is a great
statement. That is what I want, too. And that is why I was
asking you about some of the provisions of the bill that was
just dunked last night by the 112th Congress.
But I thank you, Mr. Chairman.
Mr. Smith. Okay, thank you, Mr. Conyers.
The gentleman from New York, Mr. Reed, is recognized for
his questions.
Mr. Reed. Well, thank you, Mr. Chairman.
I thank the witnesses for appearing today.
I will ask Dr. Weinstein, when I looked at the National
Commission on Fiscal Responsibility and Reform, the President's
commission to explore ways to reduce the deficit, it was
recommended in there that health-care litigation reform as a
policy could save money and go to limit the deficit. The
deficit is a huge issue and a priority for many new Members of
Congress, of which I am one.
Do you agree that lawsuit reform could and would reduce the
deficit?
Dr. Weinstein. Yes, sir, I do. I think that has been shown.
I think the CBO report that Senator Hatch had requested
information on showed it would reduce it by $54 billion over 10
years. And depending on what study you look at, I think there
has been widespread discussion in the media, by Members of
Congress, and also by various groups who have looked at this
issue. Senator Kerry and Senator Hatch on ``This Week'' on ABC,
I think, both felt that this would be a significant step
forward, addressing the medical liability issue.
So I think that, to us, there is no question that this
would, indeed, reduce health-care spending.
Mr. Reed. Dr. Hoven, would you agree?
Dr. Hoven. I most certainly would agree. I think, clearly,
that is not chump change we are talking about. And we clearly
need to move ahead. And, you know, that is a conservative
estimate, and it may even be greater than that.
Mr. Reed. And, Ms. Doroshow, would you agree or disagree
with that?
Ms. Doroshow. I absolutely disagree with that.
I think that what CBO did unfortunately avoided a number of
very important issues that will end up increasing the deficit,
burdening Medicaid and Medicare, in particular--three things,
in particular.
One is, when you enact these kinds of severe tort reforms,
there are many people with legitimate cases that cannot find
attorneys anymore and cannot bring cases. This is well-
documented as having happened in California. In fact, you had a
witness before this Committee in 1994 testifying to that
effect. And it is certainly happening in Texas. So you have
many people that are going to end up going on Medicaid that
otherwise would have been compensated through an insurance
company.
Second, as I mentioned, there are liens and subrogation
rights that Medicare and Medicaid have when there is a judgment
or a verdict in a lawsuit. In other words, they can get
reimbursed. If there is no lawsuit, that reimbursement is gone.
So they lose money in that regard.
Third, these kinds of measures are going to make hospitals
more unsafe. There are going to be many, many more errors. Even
the CBO, in its letter to Senator Hatch, talked about one study
that would increase the mortality rate in this country by 0.2
percent. And that doesn't even include the injuries. So you are
going to have more people hurt, more expense taking care of
those people.
And, frankly, when you enact any kind of cap on noneconomic
damages, in particular, those have a disproportionate impact on
senior citizens, children, low-income earners. And, certainly,
senior citizens, what has happened in Texas with the cap, those
cases really are not being brought anymore. So senior citizens
who are on Medicare, who should have a right to seek
accountability from a hospital that caused negligence, no
longer are bringing those lawsuits, and so Medicare is paying.
There are lots of costs that are going to end up increasing
the deficit.
Mr. Reed. Well, but my understanding is that we are not
looking to discourage legitimate lawsuits. We are allowing
economic damages to be fully compensated. And the subrogation
rights that you refer to are derived from the economic damage
calculation, because those are lost wages--or medical bills,
past and future, that the subrogation rights are derived from.
So what we are talking is focusing on the frivolous
lawsuits that are there. So I guess I don't follow your logic
saying that that is a reason why----
Ms. Doroshow. No, I think that is actually not what history
shows. History shows, when you cap noneconomic damages, there
are certain classes of cases that are no longer brought.
That is what has happened in California, and that is what
this individual testified. An insurance defense lawyer
testified before this very Committee in 1994: Entire categories
of cases can no longer be brought, those that involve primarily
noneconomic damages.
For example, one of the people we brought to Washington a
couple of times, a woman named Linda McDougal, she was the
victim of negligence----
Mr. Reed. Thank you, Ms. Doroshow. I think my time has
expired.
Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Reed, for your questions.
Ms. Doroshow, if you want to finish the sentence, you may
do so.
Ms. Doroshow. Well, she had an unnecessary double
mastectomy because the lab misdiagnosed cancer when she didn't
have it. And she came down to testify a few times. But her
damages were entirely noneconomic in nature.
Mr. Smith. All right.
Ms. Doroshow. So a cap only affected cases--her case.
Mr. Smith. Okay. Thank you very much.
The gentleman from Virginia, Mr. Scott, is recognized for
his questions.
Mr. Scott. Thank you, Mr. Chairman.
One of the problems we have in this discussion is a lot of
the problems are articulated and then solutions are offered and
very little effort is made to see how the solutions actually
solve the problems.
Ms. Hoven, did I understand your testimony that physicians
are routinely charging for services that are not medically
necessary to the tune of $70 billion to $126 billion?
Dr. Hoven. I am talking about defensive medicine.
Mr. Scott. I asked you, are those services that are not
medically necessary?
Dr. Hoven. They are services that are medically indicated
and medically necessary if you look at guidelines and criteria.
However, what does not happen is--my clinical judgment whether
to employ that test is disregarded.
Mr. Scott. Are you suggesting that the services are not
medically necessary? If liability were not a factor, would the
services be provided or not?
Dr. Hoven. It depends on the case. It depends on the
situation. It depends on the environment of care.
Mr. Scott. And you are suggesting that in $70 billion to
$126 billion worth of cases, services were rendered that were
not medically necessary, were not needed?
Dr. Hoven. That is not what I said, Congressman.
Mr. Scott. Well, what are you saying?
Dr. Hoven. I am saying that health care delivered in the
examining room, in the operating room, is driven by what is
based on clinical judgment and based on assurance testing,
which is documentation and proving that, in fact, that is what
is wrong with a patient.
When we talk about cost control in this country, we are
talking about the fact that--and this goes to the whole issue
of cost containment, which is, if, in fact, you would recognize
my medical judgment and allow me to decide when it is important
to do a test or not, then our patients would be better served.
Mr. Scott. By not providing the services?
Dr. Hoven. If, in my judgment, they don't need it.
Mr. Scott. And you are not able to--and you charge for
services that, in your judgment, are not needed to the tune of
$70 billion to $126 billion?
Dr. Hoven. I do not do that. However, let me----
Mr. Scott. Well, I mean, your testimony was that physicians
are charging $70 billion to $126 billion more than necessary
and then blame it on liability. Now, is that your testimony?
Dr. Hoven. Yes, that is my testimony.
Mr. Scott. That it is not necessary, that you are providing
services that are not necessary. Either they are necessary or
they are not.
Dr. Hoven. We are practicing in a culture of fear. And that
culture of fear lends itself to protecting oneself. I have been
sued, Congressman. Let me tell you----
Mr. Scott. Wait a minute. I just asked you a simple
question. You gave $70 billion to $126 billion. I just want to
know what that represents.
Dr. Hoven. That is costs for tests and procedures which, if
you look at guidelines, would be medically necessary, but my
medical judgment is discounted.
Mr. Scott. That, based on your medical judgment, should not
have been provided.
Dr. Hoven. Not necessarily.
Mr. Scott. Okay, well, I am not going to--Ms. Doroshow, if
physicians are charging for services that are not necessary,
how is that different from medical fraud?
Ms. Doroshow. That is a good question, because in order to
get reimbursed--to file a claim with Medicare and to be
reimbursed, physicians have to file a form and certify that the
test and procedure, the services that they provided are
medically necessary for the health of the patient. So it does
raise a question whether or not some claims may be false.
Mr. Scott. If someone were to do a survey to say, why did
you provide the services that were not necessary, what would be
the convenient answer? If they ask you, why did you provide the
services that were not necessary, what would be a nice,
convenient----
Ms. Doroshow. To say that they----
Mr. Scott. Because they were afraid of lawsuits, so they
can charge for services that weren't even needed.
Ms. Hoven, did you indicate that you supported a fair
determination for medical malpractice issues, so that those who
had bona fide cases could actually recover?
Dr. Hoven. Most definitely, Congressman.
Mr. Scott. Now you are aware that the Institute of Medicine
estimates about 100,000 deaths due to medical mistakes and only
about 5,000 to 10,000 wrongful death cases are paid every year?
Dr. Hoven. Well, if you look at the statistics, which you
are obviously very familiar with, we are talking about apples
and oranges here in many situations. We are talking about
errors and adverse events as opposed to true malpractice and
negligence. So I think you have to be careful about the
terminology.
Mr. Scott. So what would be the barrier to 90 to 95 percent
of the cases that were caused my medical errors from
recovering?
Dr. Hoven. They should be able to recover.
What the Health Act would do would allow them to recover so
that they would be appropriately rewarded for what happened to
them in their loss. The Health Act talks about that in terms of
all of the economic elements that are involved, including their
health care.
Mr. Scott. Mr. Chairman, my time has expired.
Mr. Smith. Thank you, Mr. Scott.
The gentleman from Pennsylvania, Mr. Marino, is recognized
for his questions.
Mr. Marino. Mr. Chairman, I yield my time.
Thank you.
Mr. Smith. We will go to the gentlewoman from Florida for
her questions, Mrs. Adams.
Mrs. Adams. Thank you, Mr. Chair.
Ms. Doroshow, I was looking at this Institute of Medicine
study. And you cited it in your opening statement and in your
packet. And it says that as many as 98,000 patients die
annually due to medical errors. And what we found was that it
has shown to be exaggerated and unreliable, isn't that true,
because based on, shortly after its release in 2000, the study
came under heavy criticism for imprecise methodology that
greatly overstated the rate of death from medical errors?
For example, the study data treated deaths from drug abuse
as medication errors. And Dr. Troyen Brennan, the lead Harvard
researcher who compiled much of the data upon which the report
was based later revisited his methodology and determined that
the actual figure could be less than 10 percent of the IOM's
estimate. Is that true?
Ms. Doroshow. Well, what is true is that many other studies
since then have found far more than 98,000 deaths; many other
institutions that have looked into it. And, just in November,
HHS took a look at this issue again, and they found that one in
seven patients in hospitals are victims of an adverse event,
and 44 percent of them are preventable.
Also, there was a study just also released in November of
North Carolina hospitals--North Carolina is supposed to be a
leader in patient safety--basically, finding that since the
Institute of Medicine report, patient safety has not improved
at all. And it really kind of shocked the authors of this
research study, and they found that the errors that are causing
deaths and injuries are continuing at an epidemic rate.
So I would say that the 98,000 figure at this point is low
and has been probably upped by every patient and government
study that has looked into it since.
Mrs. Adams. So your testimony is that every adverse event
is a medical malpractice?
Ms. Doroshow. I am looking at the studies and how they
define it. In, for example, the HHS study, they found one in
seven Medicare patients are the victim of an adverse event, and
44 percent are preventable.
Mrs. Adams. Again, are you saying, in your eyes, is an
adverse event medical malpractice?
Ms. Doroshow. A preventable adverse event is.
Mrs. Adams. The other thing I wanted to know, I know who
Dr. Hoven is representing and I know who Dr. Weinstein is
representing. But I couldn't find in your documentation where
the Center for Democracy and Justice gets its funding. Could
you provide the Committee with a list of your fellow and
associate members so we have an accurate understanding of the
point of view which you are presenting?
And, also, you mentioned the demo projects and that they
are going to get grant funding. Are you or anybody that is
associated with the Center for Justice and Democracy able to
apply for those grants?
Ms. Doroshow. Apply for which grants?
Mrs. Adams. The ones for the research that you were
speaking about earlier.
Ms. Doroshow. Well, we are tiny. We have about five people
on our staff. We are not a high-budget operation. So we don't
really have the staff to do research projects like that. We
hope other people would do that.
Mrs. Adams. Again, I would like to know, like your fellow
and associate members, are they going to be applying for those
grants?
Ms. Doroshow. Our associate members? I would have no
information about any of that. I don't know. Those grants were
already--that process has already taken place. HHS has already
granted the money. In New York, for example, it granted $3
million to the Office of Court Administration in conjunction
with the Department of Health that is looking at a specific
proposal that was presented to them. So, actually, I know a lot
about that proposal. I know about a few of the others. But that
has already happened.
Mrs. Adams. Are you aware--and this goes to all three of
you, and I think Dr. Weinstein and Dr. Hoven have said this,
and I just want to make sure that you are aware also--that
there are certain professions in the medical field that have
stopped practicing because they can't see enough patients in
order to cover their insurance costs, just the cost alone; not
because they have done anything wrong, but they cannot see
enough patients to cover their malpractice insurance costs.
Ms. Doroshow. Well, I hope that also you are aware that
since 2006, we have been in a soft insurance market. That is
why you don't hear any longer about doctors picketing on State
legislatures and capitals and trauma centers, et cetera, that
we did in the early part of the 2000's, when we were in a hard
insurance market, when rates were going up 100, 200 percent for
doctors. This is a cyclical industry. This has happened three
times in the last 30 years when rates have shot up like this.
To believe that the legal system has anything to do with
it, you would have to believe that juries engineered large
awards in 1975; and then stopped for 10 years; and then did it
again in 1986 to 1988; and then stopped for 17 years; and then
started up again in 2001. Of course, that has never been true.
The claims have always been steady and stable.
So what is driving insurance rate hikes is the insurance
and accounting practices of the insurance industry. The
solutions to that problem lie with the insurance industry. They
should not be solved on the backs of injured patients.
Mrs. Adams. I see my time has expired. I look forward to
further discussion.
Mr. Smith. Thank you, Mrs. Adams.
The gentlewoman from Texas, Ms. Jackson Lee, is recognized
for her questions.
Ms. Jackson Lee. Than you, Mr. Chairman.
Let me thank all of the witnesses for their presence here
today. And I want you to know that each of your presentations
are particularly respected and admired.
I want to start with the representative, Dr. Hoven, from
the American Medical Association. Coming from Houston, I think
many of you are aware, probably so for me, that we have one of
the greatest medical centers in the world, the Texas Medical
Center. I am very proud of a recent $150 million private
donation just recently received by the Texas--by MD Anderson.
And so I have a great familiarity with a lot of physicians and
applaud their work and thank them for some of the lifesaving
research that they have been engaged in.
But building on the present national law, which is, of
course, the Patient Protection and the Affordable Care Act, Dr.
Hoven, one of your peers or one of your colleagues who happened
to serve in this body, Senator Frist, indicated that that law
was the fundamental platform upon which we could now base our
desire to go forward, to have additional provisions.
So I just want to get a clear understanding. It is my
understanding the American Medical Association supported the
bill. Is that correct?
Dr. Hoven. The American Medical Association supported parts
of the bill. We believe that access to care, covering the
uninsured, decreasing costs and improving quality, are very,
very important first steps.
Ms. Jackson Lee. So you are telling me doctors would not
support eliminating the preexisting conditions and allowing
children to stay on their insurance until age 26?
Dr. Hoven. We do support that.
Ms. Jackson Lee. All right. So I think a great part of the
bill, you did, and you probably would--I am not sure; maybe
because you are before a large group that you don't want to say
that the AMA supported it, but it is my understanding they did.
I see someone shaking their head behind bill. So you support
the bill. Did the AMA support the bill?
Dr. Hoven. The AMA did support the bill. We have recognized
it is an imperfect bill.
Ms. Jackson Lee. You are absolutely right. And I will
assure you, those of us who are lawyers as well agree with you,
because it is very difficult to write a perfect bill. But as
Dr. Frist said, this is a bill that is the law of the land. In
fact, he even said he would have voted for it. So I want to
clear the record that this is a bill that really does answer a
lot of questions, but we can always do better.
Let me indicate to Ms. Doroshow, if I have it correctly, in
the process of hearings, we have witnesses that represent the
majority view. The majority is represented by Republicans,
chaired by Mr. Smith. And we have a right to have a witness
that maybe has a different perspective.
So to inquire of your funding, whether you are getting
grants, every hearing we will find that we will have witnesses
that agree with the predominant view of the majority, but we
will also have in this democracy the right to have a different
view.
I suppose you have a different view from the Health Act
that is before us, is that correct? There is a bill--you have a
slightly different view, is that my understanding, between this
question dealing with tort reform or medical malpractice?
Ms. Doroshow. I certainly have a different view from the
other witnesses, yes.
Ms. Jackson Lee. That is the point I am making. So let me
inquire.
And as I do that, I think the point that I wanted to engage
with Dr. Hoven was to say that I want to find every way that we
can work with physicians. I want their doors to be open. I want
them to be in community health clinics. I want them to have
their own private practice. I want them to be OB/GYNs. In fact,
Dr. Natalie Carroll Dailey, an OB/GYN, former president of the
National Medical Association, I count her as a very dear friend
but also someone who counsels me.
So let me be very clear. Answer these two questions, to Ms.
Doroshow: What is the reality of how many frivolous lawsuits we
have? You have a notation of the Harvard School of Public
Health. Give me that, quickly.
The second thing is, insurance companies. Isn't that the
crux of the problem? Are the patients the ones that are
charging doctors $120,000for insurance, or is it the insurance
companies, who have documented that they will not lower costs
even if there is a low count of medical malpractice lawsuits in
that doctor's area, in that doctor's office, and in that State?
Isn't that true?
Ms. Doroshow. Absolutely.
Ms. Jackson Lee. Would you just comment very quickly. And
let me, as I say that, say to you, my mother had a pacemaker
for 20 years. She had a procedure to give her a new one. The
next day she was dead.
I would like you to be able to answer my questions, if the
Chairman would indulge your answer, please.
Ms. Doroshow. Well, in terms of the Harvard study, this is
important because this is the study that gets, I think,
misrepresented often and figures about 40 percent of the cases
are frivolous.
Actually, the Harvard study found the exact opposite. In
fact, I will read the quote from the author of that study, the
lead author, David Studdert: Some critics have suggested that
the malpractice system is inundated with groundless lawsuits
and that whether a plaintiff recovers a money is like a random
lottery, virtually unrelated to whether the claim has merit.
These findings, the Harvard School of Public Health findings,
cast doubt on that view by showing that most malpractice claims
involve medical error and serious injury and that claims with
merit are far more likely to be paid than claims without merit.
And there is a lot of extensive research done on that
study. And the headline of the Harvard press release was:
``Study Casts Doubt on Claims that Medical Malpractice System
is Plagued by Frivolous Lawsuits.'' So that clearly is not a
problem.
Mr. Smith. The gentlewoman's time has expired.
Than you, Ms. Doroshow.
We will recognize the gentleman from Virginia, Mr. Forbes,
for his questions.
Mr. Forbes. Thank you, Mr. Chairman.
And I want to thank all of our witnesses. I truly believe
all three of you are here to do what you think is in the best
interest of our patients and of the United States.
I feel the same way about the Members that we have up here.
But we all have specific constituencies.
As much as I love the Chairman, I know that there are times
that--he is from Texas, and he has a Texas constituency; the
gentleman from Arkansas has an Arkansas constituency; and the
gentlewoman from Florida has a Florida constituency. And that
is why we tell everybody, the gentleman from Florida, the
gentleman from Arkansas.
I think it is important that we know when you are
testifying who you are constituencies are. And two of our
witnesses have set that forward. And Congresswoman Adams asked
what I think is a fair question to Ms. Doroshow, and that is if
she would just be willing to give us your sources of public
funding and your membership, would you make those public so we
know who those constituencies are?
Ms. Doroshow. Well, we are a 501(c)3 tax-exempt
organization, and we do not release the names and information
about our donors. I will say that we get different kinds of
funding. We get foundation grants, for example. In fact, I
started the organization in 1998, and it was just myself sort
of sitting there writing letters to the editor with a little
bit of money from a friend of mine, and I got a large grant
from the Stern Family Fund.
Mr. Forbes. Ms. Doroshow, I just only have 5 minutes. So
the answer is that you won't let us know who your membership is
and your sources of funding.
Ms. Doroshow. Absolutely not.
Mr. Forbes. Okay. Then we will take that into account. And
let me just say that sometimes this is not as complex as we try
to make it.
The reality is that everybody at home who watches these
hearings and who looks at these issues, they know when you are
talking about not changing tort reform who the true
beneficiaries of that are. They are the trial lawyers. And the
trial lawyers are the ones that put the dollars behind it. The
trial lawyers are the ones that will sit here and tell us, if
we don't do this, we are going to be impacted, and we are could
be losing our jobs.
On the other hand, we know who some of the major
beneficiaries are if we do tort reform, and that is some of our
doctors. And they tell us, hey, if we don't do this, we could
be losing our jobs.
One of the interesting things I can tell you and tell this
Committee, I have never in my entire career had a single
constituent walk into me and say, I am worried because I can't
find a trial lawyer out there. But I have them over and over
coming to me now, truly worried that they cannot find doctors
to represent them. And, secondly, when I hear people talk about
the 2 or 3 percent of bad doctors, that sometimes falls on
hollow ground because the same people that will point and say,
oh, yeah, we can't do malpractice reform because it is 2 or 3
percent of bad doctors fight us every time we try to get rid of
the 2 or 3 percent of bad doctors, the same way they try to do
when we try to get rid of the 2 or 3 percent of bad teachers.
So my question to you is this, all three of you. I am a
firm believer in modeling and simulation. We use it in the
Armed Services Committee to try to model for us our most
difficult weapon systems, our military strategies. We are so
confident in it, although we know it has some flaws, that we
put the entire defense of the United States sometime on
modeling and simulation that we can do.
Do we have any efforts at modeling and simulation that
would help show us what the health care world would be like if
we did tort reform and if we got rid of some of the litigation
and whether it would benefit us or not? And if we don't, what
can we do to help you move forward in that?
Dr. Weinstein?
Dr. Weinstein. If I could address that question, I think
you have a model out there existing already, and that is the
most recent Texas reform. You also have California, which has a
longer history.
And the Texas reform obviously showed lowering premiums but
increasing numbers of critical care specialists, particularly
in underserved counties. That included also pediatricians,
emergency physicians, et cetera.
If I might, could I come back to the issue of the frivolous
lawsuits? Is that possible.
Mr. Forbes. Absolutely.
Dr. Weinstein. Congresswoman Adams asked about this. And I
think the issues are that the data would be that 64 percent of
suits are either withdrawn, dropped, or dismissed because they
lack merit. Less than 1 percent are actually decided for the
plaintiff.
And when you come to the New York study, which is called
the Harvard study, that looked at New York data, you are
talking about extrapolation of 280 cases of error. And in that
study, errors could be someone falling in the hallway walking,
and that was lumped together with someone who had a significant
surgical error. And the study has been flawed, as was pointed
out.
Mr. Forbes. Dr. Weinstein, my time is up. I don't mean to
cut you off, but I just wanted to say the point that you made
about California and Texas is so accurate. We hear over and
over we are going to do these demonstration projects, but you
have two monstrous demonstration projects. And if we are going
to ignore those, we are certainly going to ignore the other
demonstration projects.
Dr. Hoven, I don't have time for you to give me your
answer, but if you could submit it to us in writing.
Or, Ms. Doroshow, we would love to have it on the modeling
simulation part.
Mr. Smith. Thank you, Mr. Forbes.
The gentleman from North Carolina, Mr. Watt, is recognized
for his questions.
Mr. Watt. Thank you, Mr. Chairman.
Let me first apologize to the witnesses. I had to leave to
go to a meeting and didn't hear anything other than a small
part of the first witness's testimony. But I assure you I will
read it.
I didn't come back to ask questions about what you said
because I didn't hear what you said.
I came back, really, to make sure that any perspective that
I have on this issue gets into the record, because this is
where I differ with a lot of my colleagues who have thought
that this is an appropriate issue for us to deal with in the
U.S. House Judiciary Committee.
I am kind of a States' rights old-school guy on this and
have always believed that tort law was a matter of State law. I
concede that we have the authority to write tort standards for
Medicare recipients and for the range of people that we do. But
general tort law, from my perspective, has always been a matter
of State law.
I happen to live in Charlotte, North Carolina, and that is
right on the South Carolina line, but I have never seen a
hospital that straddles the line. They don't operate--I have
never seen a medical procedure take place in interstate
commerce. I concede they use stuff that comes through
interstate commerce. Everything we do comes through interstate
commerce. But I just think that this is an issue that my
conservative colleagues, the States' righters, have lost their
way on.
Were I a member of the North Carolina State legislature,
perhaps I would listen very intently to whether we need to, in
North Carolina, do tort reform. And they have at the State
legislature level in North Carolina. I happen to think that
they are as intelligent and bright in the State legislature of
North Carolina as we happen to be here in the Congress of the
United States. We don't have any monopoly on knowledge on this
issue. It is a State issue. It has historically been a State
issue. And I think my conservative colleagues have lost their
way trying to make this a Federal issue.
So I want that in the record. They say I used to be the
chair of the States' Rights Caucus on this Committee. Maybe
this is one of those times that I got that reputation as being
the chair of the States' Rights Caucus. But we can debate
whether, State-by-State, States ought to be doing this. We
could even debate whether we ought to be applying some
different standards for Medicare recipients or Medicaid
recipients. But I just think, as a general proposition, having
a debate about doing general tort law reform in the Congress of
the United States offends that Constitution that we read the
first day of this session on the floor. So that is my
perspective.
I appreciate you all being here as witnesses. But I didn't
want to miss the opportunity to put that perspective in the
record in public, not that I haven't done it before. If you go
back to the 111th Congress, the 110th Congress, the 109th
Congress, and you go all the way back to when I started,
whatever Congress that was, I think I have given my perspective
on this over and over and over again because we have been
talking about this for the 18 years that I have been here. And
my position on it hadn't changed.
We don't do malpractice interstate. If a doctor is
operating on somebody that lives in another State, they can get
into Federal court and apply whatever State law it is that
applied in that jurisdiction.
So that is my story, and I am sticking to it.
Mr. Lungren. Would the gentleman yield for a moment?
Mr. Watt. I don't have any time left.
Mr. Smith. The gentleman's time has expired.
Let me say to the gentleman, we appreciate his consistency
over the years in being for States' rights and appreciate his
being an original founder of the States' Rights Caucus on the
Judiciary Committee.
I will now go to the gentleman from Arkansas, Mr. Griffin,
for his questions.
Mr. Griffin. Thank you, Mr. Chairman.
Dr. Weinstein, I am particularly interested in the Gallup
Poll that came out in February of 2010. Over the last year or
so, I have talked to a lot of doctors in my district who are
advocates for some sort of medical liability reform. During the
last year, this poll came out, and I was struck by the numbers.
And I saw that you referenced this Gallup Poll in your
statement.
The first question I have for you, is the data in this
Gallup Poll, the one that came out in February, is it
consistent with other data that you have seen, particularly the
point that physicians attributed 26 percent of overall health
care costs to the practice of defensive medicine; and then,
secondly, that 73 percent of the physicians agreed they had
practiced some form of defensive medicine in the past 12
months?
So my first question is whether that data in the Gallup
Poll is consistent with data that you have seen elsewhere.
Dr. Weinstein. Mr. Griffin, I think the data on the cost of
defensive medicine vary considerably, from low estimates of $56
billion over 10 years to--this was the largest estimate--$650
billion. And you can go back to studies like Kessler and
McClellan and others who have looked at it, and the costs of
defensive medicine are astronomic. Physicians practice
defensive medicine. It is not going away.
A very well-done study, not by doctors but by lawyers, this
Harvard group, shows that 90-plus percent of physicians in the
State of Pennsylvania practice defensive medicine. Whey they
surveyed residents, doctors in training across all the
residencies in Pennsylvania, they found that 81 percent felt
they couldn't be honest with patients. They viewed every
patient as a potential lawsuit. And the most depressing
statistic of all was 28 percent of residents across the
spectrum in Pennsylvania regretted their choice of becoming a
doctor because of the liability crisis.
Mr. Griffin. With regard to the Pennsylvania data that you
are discussing, have you turned that data over to the
Committee?
Dr. Weinstein. Yes, sir, that is in the written testimony,
the reference to that.
Mr. Griffin. What procedures--could you give us some
specifics on the procedures that are usually subject to the
practice of defensive medicine?
Dr. Weinstein. Sure. Defensive medicine breaks down to two
areas. One is assurance behavior. You need to assure yourself
you haven't missed something. As has been pointed out by Dr.
Hoven, in medical school, you are trained to take a history, do
a physical examination, and try and put this puzzle together.
Occasionally, you will need one test, a lab test or an imaging
study, and then you will take it in an orderly progression.
But the climate of fear that exists from the medical
standpoint is such that you need to keep taking that
progression, that orderly progression, to the very end from the
beginning because, should you miss something, your life and
your ability to practice medicine and your craft is over. So
that is the assurance behavior.
Avoidance behavior is most medical students come out of
medical school with--in our school, it is over $100,000 in
debt. So when they choose a career, they come out of our
orthopedic surgery residency able to take care of anybody who
is brought in off the highway who has had a traumatic injury
and put them together again, but the majority of them don't
want to do that. They don't want to cover the emergency room
because that is a high-risk environment. So you avoid things
that are high risk. You avoid OB. If you are a neurosurgeon,
you don't take care of children head injuries. A doctor doesn't
do vaginal deliveries or any deliveries at all. So that is how
the avoidance behavior affects the American public.
Mr. Griffin. So, getting down to the specific medical
procedures that are usually subject to that, you mentioned head
injuries; you mentioned OB/GYN. Can you get even more specific
in terms of the actual procedures?
Dr. Weinstein. Well, I think just head injuries in
children. There are very few neurosurgeons willing to take care
of a head injury in a child. At one time in this town, 40
percent of OB/GYNs weren't doing deliveries. This was a few
years ago. One in seven OB/GYNs no longer just deliver babies.
OB/GYNS now get, on average, get out of obstetrics at age 48,
which would be a mid-career point. You are just reaching your
peak. You have got another 20 years of practice. But now OB/
GYNs stop practicing obstetrics at age 48 because of the
liability risk.
Mr. Griffin. If you have a number of tests that are being
conducted using equipment and using resources and, in some
instances, they are not necessary, they are more to assure or
to avoid, can you comment on that crowding out tests that need
to be conducted that are necessary?
Dr. Weinstein. I think that when you crowd a system with--I
won't say that they are unnecessary tests. The gentleman
earlier was sort of implying that these tests are illegal that
you are doing; you are defrauding Medicare. I think that is not
the truth. But, basically, as I mentioned, when you progress to
solve a puzzle in taking care of a patient, you follow an
orderly progression. If this doesn't work, then we will do this
study. We will do a CT scan or a myelogram or an MRI. But we
can't afford to do that any more.
So what happens is you use valuable resources, imaging
resources in particular, to do defensive medicine to take that
step number 10 and bring it down to step number 2, and you
deprive someone who actually needs that resource from the use
of it.
Mr. Griffin. So, if a young child who has a head injury
comes into the emergency room, an ideal situation, you are
saying a doctor would look at that child and say, well, I am
going to start at step one. And if I think I need to go to step
2 on my way to 10, then I will do that progressively. But in
the current environment, they see the child and they
automatically say, we have got to do 1 through 10.
Dr. Weinstein. Well, I think if there is a pediatric
neurosurgeon or a neurosurgeon willing to take care of that
injury at that hospital, because I think three-quarters of our
emergency rooms are at risk because of the availability or lack
of availability of on-call specialists, that doctor will
proceed with the entire battery from step one.
Mr. Griffin. And not progressively.
Dr. Weinstein. Not necessarily in an orderly, progressive
fashion, which you learned in medical school.
Mr. Griffin. Sure.
Mr. Smith. Thank you. Mr. Griffin. I appreciate the
questions.
The gentleman from Georgia, Mr. Johnson, who had the
advantage of going to law school in Texas--is recognized for
his questions.
Mr. Johnson. Thank you, Mr. Chairman.
Dr. Weinstein, it is a fact, is it not, that doctors are
human beings?
Dr. Weinstein. Yes, sir, they are.
Mr. Johnson. And it is also a fact that human beings are
not perfect. Isn't it true?
Dr. Weinstein. Absolutely.
Mr. Johnson. So doctors, just like human beings, make
mistakes.
Would you disagree with that, Dr. Hoven?
Dr. Hoven. Errors occur.
Mr. Johnson. Errors occur. Mistakes can be made. Isn't that
true?
Dr. Hoven. They can.
Mr. Johnson. By doctors. Correct?
Dr. Hoven. That is true.
Mr. Johnson. And so now when a doctor makes a mistake, it
can cause a death or it can cause a diminished quality of life
in the victim. Would anybody disagree with that?
Hearing no objection or hearing nothing, I will assume that
you agree with me on that.
That diminished life of a victim of what I will refer to as
medical negligence, it has a value that a jury puts on it, and
we call that noneconomic loss what, Lawyer Doroshow? What do we
call that noneconomic loss, recovery for----
Ms. Doroshow. Permanent disability, blindness,
disfigurement, mutilation.
Mr. Johnson. Pain and suffering for whatever may arise as a
result of the doctor's negligence. Pain and suffering.
Noneconomic loss. That is worth something, don't you think?
Now the question is, how much is pain and suffering worth?
That might be a little different for Quanisha Scott who, back
in Little Rock, Arkansas, in 2007, a 29-year old, went for a
partial thyroidectomy to remove a goiter, and 12 hours later,
she began to develop a shortness of breath and began feeling
her neck tighten. Despite complaints to the nurses, her
condition was not appropriately monitored or reported to a
physician. She went into respiratory arrest and suffered severe
brain damage. It was later discovered that she had a hematoma
at the site of the surgery. She is now bedridden and totally
dependent on her mother for care.
Now that is pain and suffering. Do you think that pain and
suffering is worth more than an arbitrary cap of $250,000? If
you do, I disagree with you.
If you think that Lauren Lollini out in Denver should be
limited to $250,000 for pain and suffering--she went to a
Denver hospital for kidney stone surgery in February of 2009.
Six weeks later, her health began to deteriorate, with feelings
of exhaustion and a loss of appetite. After a week of her
illness, she became jaundiced and had an inflamed liver. The
doctors at an urgent care clinic diagnosed her with hepatitis
C. Thirty-five other patients became infected with hepatitis C
at that hospital at the same time. A State investigation
revealed that the outbreak began with a hospital staff person
who used hospital syringes and painkillers during drug use.
Ms. Lollini is now convicted and sentenced to a lifetime of
pain and suffering. How much is that worth? Is that worth
$250,000? No. It is worth a whole lot more than that.
And what this legislation does is puts an arbitrary cap of
$250,000 on noneconomic losses; pain and suffering. It is
actually an affront to the United States Constitution, the 7th
Amendment, which guarantees people a right to a jury trial when
the amount in controversy is in excess of $20.
So, on one hand, we are talking about eliminating health
care for everybody, and now we are talking about, 1 day later,
we are talking about denying access to the courts for people
who have been hurt.
That is about all I have got to say.
Thank you, Mr. Chairman.
Mr. Lungren [Presiding]. The gentleman's time has expired.
Next, the Chair recognizes Mr. Ross from Florida for 5
minutes.
Mr. Ross. Thank you, Mr. Chairman.
Being from Florida, it is interesting, we did a little bit
of research, and we saw that for an internal medicine
physician, they pay as much as $57,000 for medical malpractice,
but yet in Minnesota, they pay just a little bit more than
$3,000, which makes you wonder whether the injuries are more
severe in Florida than they are in Minnesota or whether it is a
result of the litigation environment.
And what I would like to do is just step away from the
substantive part of what we have been talking about and not
talk about damages or awards, but let's talk about the
procedure. For example, in my practice, I will probably say
that the vast majority of my cases have resolved at the
mediation level. Whether it be court-ordered or voluntary,
mediation seems to work.
And I guess, Ms. Doroshow, I would ask you, would you not
agree that dispute resolution, as opposed to an actual trial,
is more efficient, more effective in getting the needed
benefits to the injured parties?
Ms. Doroshow. Ninety percent of cases do settle, but it is
because of the threat of a jury trial, the possibility of a
jury trial, that that happens. You take away the jury trial
option, and that won't happen.
Mr. Ross. I am not saying take away the jury trial, but I
am also saying that when you are in the dispute resolution, a
lot of factors come into play as to why you want to settle the
case, whether it be because of the facts or the law. And in
some cases, it is the burden of proof, is it not?
Ms. Doroshow. Well, the cases, the studies that I have
looked at least, show that the cases that settle, there is
negligence, there is error, there is injury. The cases that end
up--the small number of cases that end up going to trial are
the ones where it is a little more unclear, and they need a
trial to resolve it.
So I think the system as it is right now is very efficient
because most cases do settle. And that is really a system that
really shouldn't be played around with. It is working now.
Mr. Ross. But in terms of burdens of proof, I mean,
different jurisdictions have like scintilla of evidence as
opposed to clear and convincing. And that, would you not agree,
that a burden of proof will be a factor that comes into play as
to whether you want to settle a case?
Ms. Doroshow. For example, in Texas, for emergency room
injuries, they made the burden of proof so incredibly difficult
that it has knocked out all--every single emergency room
negligence case. So what has happened there is the state of
care in emergency rooms has become much more unsafe. And that
is sort of what happened there. So, yeah, it does vary, and
State law does determine that.
Mr. Ross. Dr. Hoven, with the AMA, are there not practice
protocols that physicians, groups, specialties, subscribe to in
the performance of their duties?
Dr. Hoven. Thank you for that question. Yes.
The AMA has been upfront going forward in many years, in
fact, since the mid-1990's, in terms of measures, development,
quality guidelines, outcome objectives. We have had a major
role in this, and it has been applicable. And it is now
standard of care. These guidelines are extremely useful in
allowing us for evidence-based care.
Mr. Ross. Not only extremely essential, but they sometimes
lead to the practice of defensive medicine. In other words, if
your practice protocol requires that if this diagnosis is made,
then this form of treatment is required; sometimes physicians
may do that even though they may not need to just to stay
within the realms of the practice protocols.
Dr. Hoven. That is correct. And in fact, legislation needs
to be out there that gives me, using my clinical judgment and
my clinical knowledge, the ability to provide the best care for
that patient at that particular point in time.
Mr. Ross. Then, Dr. Weinstein, wouldn't you agree that if
we had established practice protocols and we required by way of
the funding of Medicaid or Medicare that it is contingent--the
receipt is contingent upon established practice protocols in
each jurisdiction and those practice protocols are followed--
and the burden of proof would then have to shift from the
physician to the plaintiff to show that by way of either clear
and convincing evidence that they deviated from the practice
and protocols or committed egregious error, would that not in
and of itself provide a substantial reduction in the amount of
litigation and the amount of awards out there?
Dr. Weinstein. Well, I think that, first of all, all
medical groups, including the AMA and others, have been working
on guidelines, appropriateness criteria to help physicians
establish a safer method of practice. But all patients don't
fit in every single guideline. Patients are individuals. They
have different comorbidities. And so they provide a general
framework in which to start. But it is not a one-size-fits-all.
Medicine is not like a cookbook that you follow this step and
go this step. It has to be a physician interacting using their
clinical skills to determine whether that guideline fits that
particular patient or that appropriateness criteria needs to
deviate for that.
Mr. Ross. And in those cases where practice protocols are
employed, should not the practicing physician have at least the
defense that the burden of proof would now shift--that the
doctor has established that he did the following protocols that
were required of that particular specialty, and now there must
be a showing by a greater weight of the evidence, clear and
convincing evidence, that then the physician deviated from or
committed egregious error.
Dr. Weinstein. Well, I think--again, I am not a lawyer--I
can only speak from a physician's standpoint--that the
guidelines and appropriateness criteria are very good
foundations for me as a practitioner to follow or to look at
when I see an individual patient. But I have to use my skill
and judgment acquired over, in my case, 35 years of practicing
medicine, to decide if my patient fits exactly that paradigm.
Otherwise, I need to have the ability to not have my hands
tied. Otherwise, I am going to hurt my patient.
Mr. Lungren. The gentleman's time has expired.
The gentleman from South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Ms. Doroshow, I am going to ask you a series of what I hope
are narrowly tailored questions in hopes of an equally narrowly
tailored answer. Do you support any toughening of rule 11
sanctions for frivolous lawsuits, lawsuits that are dismissed
or lawsuits where summary judgment is granted?
Ms. Doroshow. I think rule 11 is probably sufficient
enough, but----
Mr. Gowdy. But you do not support a toughening of that?
Ms. Doroshow. No, I would prefer that to ever taking away
the rights of victims and the clients----
Mr. Gowdy. I may not have phrased my question well, so
forgive me for that. Do you support a toughening of rule 11
sanctions for frivolous lawsuits?
Ms. Doroshow. I think, obviously, I would have to see the
provision. I don't have a problem with that, I mean, you know,
in general.
Mr. Gowdy. So the answer is: You don't have a problem with
that.
Ms. Doroshow. I don't have a problem with that.
Mr. Gowdy. You could support that.
Ms. Doroshow. Provided I looked at what you were asking me
to support. That is a reasonable request.
Mr. Gowdy. How about this, how about joint and several
liability reform. Do you support that or not?
Ms. Doroshow. Absolutely not.
Mr. Gowdy. Do you support a higher quantum of proof for
emergency care?
Ms. Doroshow. Absolutely not.
Mr. Gowdy. Do you support any tort reform?
Ms. Doroshow. I support provisions that would repeal tort
reform currently in existence in States, absolutely.
Mr. Gowdy. Do you support any tort reform?
Ms. Doroshow. For example?
Mr. Gowdy. Well, I just gave you four of them. We were 0
for 4.
Ms. Doroshow. I support a law that would prohibit
confidential settlements where there are public health and
safety issues involved. I would support that tort reform.
Mr. Gowdy. Dr. Hoven, many of us oppose the current health
care law because, in our judgment, individual mandate is
beginning to make the commerce clause so elastic as to be
amorphous. For those of us that want to support tort reform,
draw the nexus for us, draw the connection where it is an
appropriate use of congressional power to supplant State tort
laws, and while you are doing it, do we also surrender the
States determining scope of practice issues if you federalize
tort reform?
Dr. Hoven. There is a role for both. The law we are talking
about, the Health Act, in fact supports States in what they
have already done and proffered and what they are putting into
place. In States that don't have it, such as mine, Kentucky, we
desperately need the Federal regulation, the Federal
legislation to get us to a different place, for all of the
reasons I have talked about before, which have got to do with
access and cost.
So there is a role for both. But the Health Act recognizes
that, I believe, and would achieve what we are looking for in
the global topic of medical liability reform.
Mr. Gowdy. And when you say the Health Act recognizes that,
you are referring specifically to the State flexibility
provision that doesn't supplant current State law.
Dr. Hoven. That is correct.
Mr. Gowdy. Is there any concern on behalf of physicians
that if you allow congressional encroachment, if you will, into
this area, that Congress will also want to decide scope-of-
practice issues between ophthalmologists and optometrists and
nurse anesthetists and anesthesiologists and other traditional
State issues?
Dr. Hoven. No. I mean, these are two separate issues. We
fully recognize scope-of-practice issues. We deal with those;
have been doing that for years and years. These are two
different issues.
Mr. Gowdy. You don't think we lower the bar on the commerce
clause at all by federalizing tort reform?
Dr. Hoven. I trust you.
Mr. Gowdy. I am a lawyer. Don't.
Final question. Implicit--actually, more than implicit--in
some of the questions that have been asked this morning have
been very thinly veiled accusations of health care fraud,
Medicare fraud, Medicaid fraud, for what we consider to be
defensive medicine. Would you take a crack at explaining the
predicament that physicians find themselves in with this
culture of litigation and defensive medicine?
Dr. Weinstein. Yes, I think that, as I sort of outlined
before, as a physician, you have skills. History, physical
examination. You put laboratory tests or imaging studies
together to come and solve a puzzle for what is wrong with your
patient or how to treat them. And then there is an orderly
progression. If this turns out to be this way, I might go into
in this direction or another direction. But what has happened
is if you have this progression of multiple steps to get to the
end, you don't stop at square one and say, let's see how it
works; how does this treatment work; if they are not getting
better, we will do something else.
What happens is, from the diagnostic standpoint, you do
everything, because for fear that there is an adverse outcome
or something happens, then you are at risk. So what happens is
that the patient gets everything that is out there under the
sun as opposed to just the stepwise progression toward an
orderly either diagnosis or management plan.
Mr. Gowdy. I would like to thank all three panelists and
thank you, Mr. Chairman.
Mr. Lungren. Thank you. The gentleman from Arizona, Mr.
Quayle, is recognized for 5 minutes.
Mr. Quayle. Thank you, Mr. Chairman, and thanks to all of
you for showing up. This is a very important topic if we are
actually going to address and take control of our health care
costs going forward. It is an important thing if we are going
to have access to quality care.
My first question is to Dr. Weinstein. You state in your
testimony that doctors in high-risk specialties have not only
faced the brunt of abusive lawsuits but over the last decade
have seen their insurance premiums rise exponentially. While
some insurance premiums have leveled off recently or decreased
slightly in some areas, they remain a serious burden for many
doctors across the country. Moreover, with the implementation
of the new health care bill, we may discover this has been a
brief lull before the storm.
Can you expand on what you mean by the brief lull before
the storm and why the insurance premiums might have been going
off in a lull for a short amount of time?
Dr. Weinstein. I think that we are in a lull, if you will,
until we see how the Health Care Reform Act plays out and what
happens here in this body and across the way. But I think that
right now we need to look at the provisions of that and what
actually becomes law, what actually is implemented, to see
whether there are other avenues.
You know, just in the State of Massachusetts recently Lee
the Supreme Court I think reinstituted a suit against a
physician who had prescribed high blood pressure medication for
his patient. That patient subsequently had an automobile
accident where someone was killed, and now the physician is
being sued for treating the patient's hypertension.
So there are always avenues that can be pursued by the
trial bar. This is a very fertile area. The front page story of
the New York Times in November showed how hedge funds and
investment banks are investing in medical liability lawsuits.
This is big money. This is big business. And it is unfortunate.
But I think with the new health care law, we will have to see
how things unfold and what happens as to what avenues are
opened by that.
Mr. Quayle. And staying on that with the high-risk
specialties, and if you look at the aging doctor population
that is happening, you don't have many people going into the
profession, and especially in those high-risk specialties, if
we cannot actually control those liability insurance costs, how
will that affect the quality of care for these different areas
of expertise?
Dr. Weinstein. When you lose high-risk specialties, I think
every American is in danger when they have a problem--let's say
in your State, Arizona, I think that was witnessed several
weeks ago, unfortunately, but if you don't have the specialists
available and have level one trauma centers available in a
reasonable distance, you know, minutes matter. And I think the
American public now can no longer expect that they could be
traveling along a highway, have an accident, and expect they
will go to an emergency room and be saved. That is an
unrealistic expectation because of the shortage of high-risk
specialists or, where there are high-risk specialists, their
unwillingness to put themselves at risk by taking on high-risk
cases.
Mr. Quayle. Do you know kind of the average, I mean, I know
from talking to some people I know in the OB/GYN profession, it
is over a $100,000 dollars, or in the area, just to turn their
lights on. What is the average of some of those high-risk
specialties?
Dr. Weinstein. Well, I think the ranges are significant. It
depends on the State, but I think, in some areas, even in high-
risk spine surgery, for example, you are having physicians
paying several hundred--$300,000, $400,000--in liability
premiums. I can't tell you what the averages are. They are very
high.
Mr. Quayle. Dr. Hoven, I was just wondering, there is an
enormous financial toll on doctors when they have to defend
frivolous lawsuits, but what is the emotional toll, and how
does that affect the doctor-patient relationship for that
doctor going forward?
Dr. Hoven. It is very traumatic. Doctors want to heal,
provide care, and take the best possible care. And when, all of
a sudden, you are confronted with a lawsuit over which you have
no control or you are part of something else in the suit
process, it devastates you. I was sued. I tried to talk about
that little bit ago. I was sued. For 5 years after that--and
this goes to the issue of practicing defensive medicine--I
refused to see--add any new patients to my practice. I found
myself constantly thinking, what have I missed, what have I
missed, what have I missed, even though I know I was bringing
the best potential care there. This affects a physician's
health. This affects their family's health. And most
importantly, it begins to affect the relationship between the
patients and the doctor, because all of a sudden, that threat,
that fear of threat and trauma, is out there.
I consider myself a very good physician. And yet, in that
process, I felt that I was damaged by the process.
Mr. Quayle. Thank you very much.
Mr. Chairman, I yield back.
Mr. Lungren. The Chair would recognize the Chairman from
the Subcommittee that has jurisdiction over this issue, Mr.
Franks from Arizona, for 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
Dr. Weinstein, I guess my first question would be to you,
and perhaps, Dr. Hoven, you would follow up as well. Opponents
of medical liability reform often argue, as you know, that
reforming the medical liability system, especially through
limiting noneconomic and punitive damages, will lead to the
practice of medicine itself being less safe. I think that is a
pretty critically important question to answer.
So, based on your experiences, do you believe that placing
limits on noneconomic and punitive damages will affect whether
doctors practice high-quality medicine or not?
Dr. Weinstein. No, I don't, sir. It is pretty clear that
the current system we have neither protects patients who are
injured, nor does it make the system safer. We are not a
country of infinite resources. And when you talk about economic
damages, those can be quantified; whereas, you talk about
noneconomic damages, there is no way those are quantifiable.
And without infinite resources, it does not affect the quality
of care of systems such as that.
Mr. Franks. Dr. Hoven, do you have anything to add?
Dr. Hoven. Thank you. I would agree with the doctor's
comments.
And I would also add that in this era, in the last 10 to 15
years, medicine, physicians have taken huge leadership roles
following the IOM report, for example, in moving medicine to a
different place, improving quality, improving systems,
diminishing errors. So this discussion about physician
responsibility and liability in this setting is difficult
because we in fact have made major, major strides in improving
health care throughout this country.
Mr. Franks. Dr. Weinstein, I thought one of the most
striking pieces of your written testimony was your discussion
of how our broken medical liability system disincentivizes
doctors from entering certain medical specialties and
discourages others from performing high-risk procedures or
treating really high-risk patients. How could legal reforms
similar to the California's MICRA or the Health Act, which
passed the House in 2003 here, positively affect a doctor's
decision to practice in high-risk specialties or to treat high-
risk patients.
Dr. Weinstein. Well, I think with reasonable reform I think
physician culture will change. Physicians will then feel it is
worth the risk. There is always a risk when you talk about
high-risk medicine. But it is worth the risk to be able to use
the skills that you learned in your medical school and
residency training and your fellowship training to help restore
function, alleviate pain, and restore life to individuals. But
unless reform such as those previous ones you have outlined is
implemented that just won't happen.
Mr. Franks. Dr. Hoven, I have to tell you, just personally
I am extremely grateful to the medical community because of
having them have a tremendous impact on my own life. I had
major surgeries starting out at birth. So I think that, you
know, the importance of allowing doctors to pursue that calling
that they have to try to help heal their fellow human beings is
a profound significance in our society.
If I could ask sort of a hypothetical or just sort of ask
you to reach out, if you could do one thing--and Dr. Weinstein
I'll put you on deck, too. If you can answer it, it will be my
last question. If you could do one thing in terms of public
policy that we might pass that would strengthen the doctor-
patient relationship, that would allow you as a doctor to work
better with your patients and would also deliver the best care
possible where you would protect both the patient and the
doctor and the entire medical process in terms of liability
reform, what is one thing you would do? What is the one
priority that you would tell us, if you could only have one?
Dr. Hoven. Thank you. Thank you for your comments.
And the answer to that is stabilization. The medical
liability situation must be stabilized, and that stabilization
includes addressing economic and noneconomic payments. It also
has to remove from us in that stabilization the culture of fear
and when somebody is looking over our shoulder all of the time.
And that will improve and continue to enhance the patient-
physician relationship. It will stabilize care in this country,
it will improve access to care, and it will improve quality.
Mr. Franks. Thank you.
Dr. Weinstein.
Dr. Weinstein. And I would say we need a rational solution
to this situation. Because, right now, it is irrational. Nobody
has benefited from it. And unless we do have some type of
stability injured patients will not get compensated
appropriately, and the system will never get better. Because
system errors require a system of transparency, and you can
only have a system of transparency when you have a stable
situation where everyone can work together toward the same end
of making a safer health care system.
Mr. Franks. Thank you all for coming.
Thank you, Mr. Chairman.
Mr. Lungren. The gentleman's time has expired.
The gentleman from Virginia, Mr. Goodlatte, is recognized
for 5 minutes.
Mr. Goodlatte. Ms. Doroshow, I would like to follow up on a
question asked by the gentleman from South Carolina, Mr. Gowdy.
One of the questions he asked you related to whether or not you
would support a higher proof of negligence or substandard care
for emergency care, and you said not just no but absolutely
not.
So if we have--and all of us have at some time or another
been in a theater, a sporting event, in a stadium or whatever
where somebody becomes injured or ill; and the first question
is, is there a doctor in the house. Now, you expect that doctor
to identify themselves and come forward and help that
individual. If they know very little about the circumstances,
don't know what this patient's medical records are, previous
history, treatment, what they might be allergic to, to try to
save their life, you wouldn't provide a higher standard of
protection for that doctor under those circumstances?
Ms. Doroshow. The standard is already pretty high. I mean,
you're not finding lots of emergency room cases moving forward
in this country. But when you do that--first of all, the
emergency room, according to the Institute of Medicine----
Mr. Goodlatte. But you would support--you would support a
higher standard of----
Ms. Doroshow. No.
Mr. Goodlatte. Well, that's the question he asked you--
higher standard of negligence for somebody in an emergency
situation.
Ms. Doroshow. Emergency rooms are the most unsafe and
dangerous parts of a hospital. That is according to the
Institute of Medicine. It is where many people go who don't
have insurance.
Mr. Goodlatte. How about a theater or a sporting event or
somebody injured in an accident on the highway where a doctor
happens to be coming by to provide assistance?
Ms. Doroshow. I believe that the civil justice system that
exists in this country is able to handle cases that go forward
based on the State common law that exists, that has been
developed by the State. If the State common law--and, frankly,
if the State decides----
Mr. Goodlatte. Well, most--just reclaiming my time, most
States have specific statutory liability provisions in addition
to the common law.
Ms. Doroshow. Exactly. Look at Texas. What has happened in
Texas is they have made the standard of liability for emergency
room malpractice so high that it has knocked out virtually all
cases. So you have a situation where a woman was in an
emergency room, was misdiagnosed, as a result of that her legs
have been cut off, and she cannot get an attorney.
Mr. Goodlatte. Well, I am going to reclaim my time because
it is limited and tell you that you are again avoiding my
question.
Ms. Doroshow. I am not.
Mr. Goodlatte. What about on the highway, in the theater,
at the sporting event, out in public, away from a medical
facility, if a doctor provides care, volunteers that care,
under those circumstances, very different than an emergency
room? But I agree an emergency room should be different than
other standards of care as well. But in an emergency itself,
should the doctor have greater protection?
Ms. Doroshow. I believe that the law should be what the
State common law is right now.
Mr. Goodlatte. I am going to go on to another question.
Thank you.
Dr. Hoven, some argue that lowering a doctor's malpractice
liability insurance bill does not really lower health care
costs in a way that benefits patients. I don't agree with that.
What are your views on it?
Dr. Hoven. Well, I disagree with that statement as well. It
is very clear that liability costs have to be something we can
budget for and build into our costs of running a practice or a
clinic. Money that I don't have to spend on liability insurance
I can and do turn back into a practice to retain a nurse to
provide care to 100 diabetic patients so that our costs are
lowered. So I think that we have to be very careful in this
phraseology. But, in actuality, if I can budget, I know what my
monies are going to be, they are not out of sight, I can in
fact improve care and quality and access to my patients.
Mr. Goodlatte. Thank you.
And, Dr. Weinstein, Newsweek magazine reported that younger
physicians are especially frustrated with practicing defensive
medicine. Between rising insurance rates, increasing defensive
medicine, and the regulations in bureaucracy in the new health
care law, are you concerned that in the future fewer of our
best young students will choose to pursue medical careers?
Dr. Weinstein. Yes. I think the evidence there is very
clear. And, again, this is borne out in the Pew Charitable
Trusts study that was done by the Harvard Group and the
Columbia University legal team which shows that physicians
in all residencies are discouraged, number one, to be doctors.
Twenty-eight percent regretted even choosing medicine as a
career. And that 81 percent viewed every patient they encounter
is a potential lawsuit. I think this is a terrible state of
affairs.
So there is no question that the younger generation is
profoundly affected in their career choices, in their practice
locations, and the context in which they practice, in other
words, what they cut down their skill set to and what they are
willing to offer the community in which they live.
Mr. Goodlatte. They can spend a lot of years and hundreds
of thousands of dollars to receive a license to practice
medicine. And the cost then of liability insurance and the risk
if they have to make a claim against that insurance or more
than one claim against that insurance to their future as a
physician, what is that risk?
Dr. Weinstein. Well, I think the issue here is that you--
there are plenty of people who need good medical care that
aren't necessarily high risk. And if you feel you can have a
satisfactory practice without putting your life and your family
at risk by unnecessary liability many younger physicians are
taking that route.
Mr. Goodlatte. And that is indeed the crux of the problem,
that the quality of medical care and the availability of
medical care is very much affected by the perception of the
medical profession and the reality to the medical profession of
the current standards with regard to medical liability.
Dr. Weinstein. Yeah. There is no question that access and
quality of care are profoundly affected by the current
situation.
Mr. Goodlatte. Thank you.
Thank you, Mr. Chairman.
Mr. Lungren. [Presiding.] Thank you very much.
I will yield myself 5 minutes.
I come to this like everybody else does, as a product of my
experience. I confess to you my dad was a doctor. He was a
board-certified cardiologist and internist. He was chief of
staff of Long Beach Memorial Hospital in southern California.
I was his wayward son. I went to law school, but I spent 5
years doing medical malpractice defense, although I did some
plaintiffs' cases in southern California. My practice bracketed
the time before MICRA and after MICRA; and for anybody to
suggest that MICRA didn't make a difference, you weren't there.
I happened to be a young attorney at the time, and I had
some classmates from high school and college who went to
medical school, and they were about to enter the practice of
medicine. And a number of them left the State of California
because the insurance rates were so high. I remember a good
friend of mine who is an anesthesiologist who left the State.
Some OB/GYNs I knew left the State. Some doctors who were
involved in brain surgery left the State because of the high
costs.
I don't know where you get these figures that it wasn't
until '88 that we saw any progress, because the absolute
increase on a yearly basis of the premiums paid for by the
doctors leveled off after we passed MICRA.
It was interesting to hear the gentleman from Georgia talk
about the noneconomic damages. That is true. That is one of the
key parts of MICRA. It puts a limit on noneconomic damages,
pain and suffering. Why? Because that is the most potentially
abused part of the system. I can prove losses for future
earnings. I can prove what the costs are, the direct costs.
Pain and suffering, if you think about it, if before an
instant you were to ask somebody how much would it be worth to
you to lose your arm or your leg, they would probably say you
couldn't pay me enough money to do that. After the fact, when
you talk about pain and suffering it is a very difficult figure
to determine. And so you make a rational judgment by the
legislature or the people as to what that limit would be.
Because, otherwise, it has an adverse effect on the potential
for people having access to medical care.
I mean, it is not a perfect system. It never has been a
perfect system. So I will just say from my standpoint, as
someone who was there when we passed it in California, I saw a
tremendous difference.
And then when people talk about frivolous lawsuits--let's
talk about the real world. When a plaintiff's attorney files a
lawsuit, begins the lawsuit, he or she sues everybody in sight
because he or she can't be sure who was responsible. By the
time you get to trial you ought to know as the plaintiff,
plaintiff's attorney, who you think really is responsible and
you ought to let out the other people. And if you don't we
ought to have a very simple modified losers pay provision so
that at the time of trial you can present to the judge and say
if they have no case or they get less than what I am offering
now all attorney fees and costs should be borne by the
plaintiff.
Because I was in settlement conferences where the judge
would say to me, I know your hospital or I know doctor C
doesn't have any liability, but the cost of defense will be
$10,000, so throw in $10,000. And that was considered a, quote,
unquote, settlement.
In every case I am aware of, you have that dilemma. And so
when you are talking about even real cases of malpractice, a
lot of other people are involved in the case and they may
settle out, but there was no real liability. And unless you
sort of change that dynamic you are going to have this
situation.
So I have to overcome my reluctance to do this on a Federal
level because I thought California, we were ahead of the rest
of the country when we passed what we did. You probably
couldn't have passed MICRA on the Federal level at the time.
But I am sorry my friend from North Carolina is not here
because he said very clearly to me health care is not covered
by the commerce clause. So I would hope that he would make that
presentation before the courts that are considering the
lawsuits right now.
So I am sorry I don't have any questions for you. Just
listening to everything I have to put it into my sense of--no,
he said if someone is not taken care of across the State
border, they are in a hospital here or a hospital there, that
is not interstate commerce--that is what he said--it is not
covered by the commerce clause.
Anyway, but having heard all of this it brings me back to
the arguments that we were making in California in 1974 and
1975. And we made a reasonable judgment in California. Frankly,
I think it has worked very, very well. I think it is a model
for the rest of the country. And I don't think there is any
doubt that the specialties that are available in California are
available in larger numbers today than they would have been had
we not passed MICRA.
So there is no perfect system. I think we all recognize it.
What we are trying to do is define that which will give us the
best overall response to a continued problem. How do we meet
our challenge? How do we provide health care for the people of
the United States?
And the last note is I take my hat off to the medical
community because I had major kidney surgery when I was four, I
have had five knee surgeries, I have got a new hip, I have got
a new knee, you repaired my Achilles tendon just a while ago. I
am a walking example of what medical care can do for people in
the United States. And my wife says, you are getting older; and
I say, yeah, but I am getting new parts. So I just want to let
you know, there is hope.
I would like to thank all of our witnesses for their
testimony today.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses which we will forward and ask you if you would
respond to those please as quickly as you could so that we
could make your answers a part of the record. If we send them
to you, they will be serious questions from Members, some of
whom weren't able to attend, some who had to leave, some who
have more questions for you. And I would thank you if you would
seriously consider that, all three of you.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
With that, again, I would like to thank the witnesses. I
know it is an imposition on your time. I know we have to run
off and do votes and so forth and you sit here. But we thank
you very much for your testimony. It is very, very helpful.
And with that this hearing is adjourned.
[Whereupon, at 1:15 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
Representative in Congress from the State of Georgia, and Member,
Committee on the Judiciary
Prepared Statement of the Honorable Linda T. Sanchez, a Representative
in Congress from the State of California, and Member, Committee on the
Judiciary
Prepared Statement of the American Congress of Obstetricians
and Gynecologists (ACOG)
Prepared Statement of the American College of Surgeons
Study of the American Enterprise Institute (AEI)
Prepared Statement of Lawrence E. Smarr, President/CEO,
Physician Insurers Association of America