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Medical Liability Reform
Posted by on April 26, 2005 | comments
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MR. CARTER. I would like at this time to yield to the gentleman from north Texas (Mr. Burgess), my colleague who is very knowledgeable on the subject of what this is doing to our doctors and our medical profession and our cost of medicine. I am honored that the gentleman is here to join me in this conversation. Mr. BURGESS. Mr. Speaker, I thank the gentleman from Texas for yielding. I heard the gentleman speaking and I felt compelled to come down here and talk on this subject a little bit. I am so grateful that the gentleman has talked about one of the successes that we have had in this Congress, which is the Class Action Fairness bill, a bill that was signed into law by the President last month. There is no question we can talk about the injuries and the grievance situation, we can talk about it all day and all night, but that does not do the American people any good. The American people need to see results, and I believe with that bill, we have done a great deal towards reestablishing our country, the greatest work force in the world, as being competitive with other people in other countries. We heard a lot about outsourcing during the last election, how we are going to stop outsourcing. Well, one of the things we can do to stop it is to stop making a climate that is prohibitive for business in this country, and I believe our Class Action Fairness bill was a big step in the right direction to do that. We have also had some other successes as far as the fairness of the medical liability system in this country. My colleague already alluded to the Medical Compensation Reform Act of 1975 from California, but our own State, Texas, passed a very sweeping medical liability reform law in the last legislative session, 2 years ago. It required a constitutional amendment in the State of Texas to become law, which passed September 12 of 2003, and really what I would like to talk about is the success that we have seen in Texas since the passage of that constitutional amendment. Now, 10 years ago, when I was just a simple country doctor, if someone had asked me, gee, doctor, what do you think we should do about the medical liability problem, the medical liability crisis; and, mind you, the medical liability crisis, it goes back a number of years. When I was in medical school in 1975, it was a crisis. And we thought we had solved the problem then, but, in reality we had only postponed it for a little while, and it reemerged in the 1980s. We thought we solved it for a little while then, but we did not, and it reemerged in the late 1990s to be the true crisis situation that occurred in the State of Texas in 2002. But if someone had asked me back in the years right out of medical school what I would prefer to see as something that would restore fairness to the medical justice system, I would have said a system of an alternative dispute resolution-type of program where you would have a medical panel that someone would have to go through before they could go to court. I would have a very idealized no-fault system. The reality is, we cannot get there. So do I love caps? No, not necessarily, but they work. And since they work and since the crisis is present in this country; and if you do not believe me, if you live in Maryland, ask your doctor the next time you go in to see him or her. If you live in Pennsylvania, ask your doctor the next time you go in to see him or her. If you live in New Jersey, good luck, because you probably will not be able to go in and see your doctor, because they have come to Texas, because we have done such a good job of fixing the liability problem in our State. The central piece of that was, of course, a cap of noneconomic damages, a $250,000 cap of noneconomic damages against the physician, and a $250,000 cap against the hospital, and then another $250,000 cap against a second hospital or a nursing home, if there is one involved, for a total cap of $750,000. Now, I did not know if that would work. That seemed almost a little too generous. The California law that was passed in 1975 worked, but they set a single cap of $250,000. What has happened in Texas since 2003 when that constitutional amendment was passed? Well, one of the unintended consequences was hospitals have really enjoyed a significant benefit from the passage of that law. Texas hospitals are reporting a 17 percent decrease in professional liability premiums for 2004-2005. This is from a Texas Hospital Association survey with responses from 172 acute care hospitals. In 2003, before the law passed, the premiums had risen more than 50 percent. This is one of the big things. This is one of the big wins of this law. New carriers are seeking entry into the Texas market. The Texas Department of Insurance report from August 5, 2004 and the largest carrier, Texas Medical Liability Trust, has reduced physician rates 12 percent. In the years prior to medical liability reform , 13 carriers left the State and 6,000 physicians had to scramble for coverage. Now, 6,000 physicians, that is a big number. You run across one doctor who has had that happen to them, and that is a significant blow to their livelihood and their career plans. When I was campaigning in 2002, I met a young woman who was a radiologist. She was probably in her early forties, and she came up to me at an event and said, boy, I hope you get something done with medical liability reform next year because my carrier left the State and I cannot buy insurance. And I thought, well, you must have had some trouble along the way. And she offered, before I even had the chance to speculate about it, I have never been sued, but my carrier left the State. She cannot get insurance. She is not going to practice as a radiologist without insurance and put all of her personal assets at risk. So, as a consequence, here this young woman, 42 years of age, at the peak of her power as a physician, if you will, trained at the University of Texas at San Antonio, so trained with a State-subsidized education, the people of Texas had paid for her training; the people of Texas are now denied her abilities, her capabilities as a professional because she cannot get insurance and, as a consequence, cannot practice radiology, because the profession of radiology is just too fraught with peril to practice without insurance. Well, another insurance writer, Texas Health Care Indemnity, reduced their rates by 20 percent in Texas. Again, these are hospital insurance rates that have been reduced because the doctors in Texas did something to try to get ahold of medical liability reform . The filings themselves, the actual lawsuits filed have decreased. Medical liability lawsuits in several counties considered high-risk for physicians have decreased since the new law took effect in 2003. For Harris County, 105 lawsuits were filed from September of 2003 to July of 2004, compared with 746 lawsuits filed in the 3 months prior to the passage of the constitutional amendment. In Bandera County, the county where San Antonio is, 81 lawsuits were filed between September 1, 2003 and April of 2004, compared with 304 lawsuits filed in the 3 months before the constitutional amendment was passed. Nueces County, 32 compared with 108. Cameron County, 17 compared with 28; Hidalgo County, 17 lawsuits in the year after reform , 96 lawsuits in the 3 months prior to reform . Well, Mr. Speaker, there is no question that caps have been the good-news story in Texas, and that is why I embrace the legislation that we will do in this House this year that will have as its central feature a cap on noneconomic damages. Does this keep someone out of the courthouse? Absolutely not. If someone is harmed by the system, they are able to recover all of the economic damages to which they are entitled. And the reality is in Texas, we are going to limit damages for pain and suffering to $750,000, which still is a significant amount of money when you consider it in the total amount of filed litigation. So with that, Mr. Speaker, and with the gentleman from Texas's permission, I will yield back, but I will remain around if the gentleman has any other questions that he would like to ask of me. Mr. CARTER. Mr. Speaker, I would like to have a little conversation with the gentleman. The gentleman is right. It is very important to make the point that those people that should be at the courthouse addressing genuine harm are still getting to the courthouse and having that harm addressed. It is not cutting off the need of people to recover in the courthouse; it is cutting off these frivolous attacks to try to reach the pot of gold at the end of the rainbow by limiting the pot of gold, and we clearly can see what happened: Get them all in before the deadline so that we can win the lottery. After that, we are just going to get paid for our work. Mr. BURGESS. Apparently so. Mr. CARTER. It is a whole lot more fun to dream about winning the lottery. I mean, obviously, the whole country dreams almost every third night in this country about winning the lottery someplace; not very many of them that win it, but they are out there dreaming it. But the real crime of winning the lottery when we are talking about lawsuits is the fear of that big judgment that causes people to settle lawsuits that should not be settled to prevent the danger of that unlimited liability that is out there before caps were placed in the law. The gentleman knows there is nothing that irritates doctors more, and I have talked to doctors about this; they say, they made me settle the lawsuit but, by golly, I did not do anything wrong. Mr. BURGESS. The gentleman is absolutely correct. If the gentleman will yield, the cost of continuing the lawsuit in both dollar terms and emotional terms is sometimes just simply too high, and the better part of valor is to settle. Fortunately, I lived in a county where juries were a little more favorable to physicians, but we all know of other counties within the State of Texas where that was not the case. There is no question that cases were settled simply because it was easier than continuing the pain and agony of continuing the lawsuit. Mr. CARTER. And I too lived in such a county and presided over such a court. Our Williamson County jurors, they, when you start talking about $1 million, there is not that much money in the world as far as they are concerned, so they were very tight with their money and, therefore, you saw very few people; if you could file that lawsuit someplace else, they were not filing it in Williamson County, because they were seeking that pot of gold. Mr. BURGESS. But again, the biggest problem is access. If we drive our good physicians out of practice, if we prevent our best and brightest from entering the practice of medicine, and there is evidence that that is happening, I fail to see how we are furthering the cause of patient safety by keeping the best and brightest out of medicine. I fail to see how we are furthering the cause of patient safety by preventing smaller towns from having access to perhaps an anesthesiologist or perhaps a cardiologist simply because they cannot afford the liability premiums to have them there. Now, the gentleman knows I have been around a while. I have had four children. When my first couple of children were born, a lot of the procedures that you OB-GYNs do on a regular basis. And I am glad to see we are joined by another one of our doctors here in Congress, the gentleman from Georgia (Mr. Gingrey). So we will just have this conversation be three-way. When my first two kids were born, I do not even know the terminology, but when they scanned the baby on your tummy, that was brand new. The piercing to check the fluid was brand new. They did not do that as a regular course. They did not run those tests as a regular course with my first two children. With my last two children they did, and it was a blessing for our family because we had a crisis pregnancy at one time. But my point now is that a doctor, because of the potential of the liability, is afraid not to do those procedures. Is there some truth to that? Does the gentleman agree that there is some truth to that? Mr. GINGREY. If the gentleman will yield, I do. And the gentleman from Texas (Mr. Carter), the good judge, is kind to yield to me. I actually came to the well for another purpose, but since you asked me my opinion on this, I will be glad to opine. By the way, that piercing of the abdomen to get the fluid, that is called amniocentesis. Mr. CARTER. That is it. That is why I went to law school and not medical school. Mr. GINGREY. Now, do not ask me to spell that for you. But, Mr. Speaker, absolutely. What the gentleman from Texas, both the gentlemen from Texas, I should say, are absolutely right. The gentleman from Texas (Mr. Burgess) earlier was talking about the number of physicians, that before this good legislation was passed by the great State of Texas, it was 600 or so. And it is really, as I have said this many times, it is not just that the physician loses his or her livelihood that they have worked most of their adult life to establish. But it is a jobs situation, because every time a medical office closes because of the burdensome expense of malpractice insurance, you are talking about putting maybe 15, 25, possibly as many as 50 employees of that medical practice, Mr. Speaker. That is how many were employed in my practice as an OB-GYN in Georgia. And I really commend Texas in regard to their legislation. I think it was a model, Mr. Speaker, for my State of Georgia in the general assembly, and the State of Georgia this year did pass reform legislation very similar to the Texas bill. And I think that they have now got a couple of years' experience, so hopefully that same thing will occur in the State of Georgia. So I really appreciate the gentleman yielding and giving me an opportunity to weigh in on this. Mr. CARTER. Mr. Speaker, reclaiming my time. And I once again thank my colleague from Texas (Mr. Burgess) for being here with me tonight. I rose when I first started talking to tell you that there is, in my opinion, an attitude crisis for the justice system in America. We have talked about medical malpractice, and we have gone forward on the crusade. And I think we are getting some results. And the gentleman from Texas (Mr. Burgess) has very clearly described how we are seeing those results in the State of Texas today. Hopefully, with the work this Congress will do, we will be able to find that same success in the area of dealing with medical issues in the courthouse, to put more fairness back in the system; and that our class action reform , I think, is putting fairness back in the system. Watch Video
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