Statement Of Sen. Patrick Leahy
Medical Malpractice Debate
Senate Floor
May 4, 2006

Once again, the Senate is being asked by the Majority Leader to consider legislation designed to limit the rights of victims of medical malpractice to achieve justice in their courts.

America’s courts belong to the American people, not to the special interests.  Not only are these bills bad public policy, but they are especially ill-timed in light of numerous pressing issues that face the country today.  We should be debating the priorities of the American people, including energy policy and skyrocketing gas prices, the war in Iraq, the comprehensive immigration bill, stem cell research and the horrific genocide in Darfur.  I am disappointed that the Majority Leader has decided instead that the Senate’s and public’s valuable time should be taken up with these bills.  I am also disappointed that the Majority Leader has decided to bypass any committee consideration of these bills.  They have failed in the past, and I suspect they will fail this time around as well.

This is a special interest bill that benefits the insurance companies at the expense of patients with legitimate injuries.  This debate about medical malpractice reform ignores the needs of victims whose lives have been forever harmed in such ways as to require lifelong care.

Let me give you a real life example in my home state of Vermont to illustrate how this cap can hurt victims of medical malpractice.  On April 7, 2000, Diana Winn Levine had a severe migraine headache and went to a health center in Plainfield, Vermont.  Ms. Levine, a musician, received a painkiller along with an injection of another sedative, and later complications caused two amputation surgeries of her left arm.

Ms. Levine sued the corporate giant Wyeth for improper guidelines on the sedative, which did not warn of dangerous combinations with painkillers that are commonly prescribed for emergency care.  As Ms. Levine explained:  “I never expected to sue anyone in my life…. Sometimes it takes something like this to make it known when a drug is not being used right.” After a full trial, a jury of her peers in Vermont found that Ms. Levine deserved $2.4 million for her past and future medical expenses and $5 million for the “daily pain she does suffer and for the lost of enjoyment of her life.”  This bill would have arbitrarily slashed this jury verdict by at least $4,750,000.  Such a flat cap is not fair or just, and is particularly cruel when it applies to children who will require costly medical care for the rest of their lives as the result of medical errors.  To limit an award to an arbitrary amount does not begin to take into account the real needs of victims.  

One can only think that this legislation is political.  This legislation fails to address the root cause of medical malpractice, and it does nothing to provide incentives for members of the medical profession to work collectively to prevent instances of medical error.  As much as we all recognize and value our medical professionals, we must also acknowledge that medical errors kill up to 100,000 people each year.  One out of every 100 hospitalized patients suffers negligent care.  More people die as the result of medical errors than automobile and workplace accidents combined, yet only 3 percent of those injured file a claim.  These statistics tell us there is not so much a malpractice lawsuit problem as a medical safety problem.    

I fail to see how arbitrarily limiting the rights of citizens addresses this serious problem, particularly because in many cases the judicial system is the only forum in which such an error is brought to light.  Rather than looking for ways to limit our citizens’ access to justice, we should look for ways in which we can encourage the medical community to strive for the highest standards in the delivery of its services.  It is in our interest as citizens, and it is certainly in the interest of all the dedicated and caring people in the medical profession whose oath commands them to do no harm.  My wife Marcelle dedicated her career to the care of others through nursing, and I know how seriously those in the medical profession take their solemn responsibilities.  The best place for positive change to occur is from within the medical profession, not from within our courtrooms. 

The bills on the floor today favor the interests of insurance companies over patients, the interests of profit over sound health care, and they provide illusory promises of lower insurance rates for doctors, while addressing none of the underlying causes of medical malpractice.  This is not the fix that is needed. 

We hear numerous complaints from politicians about the harm malpractice lawsuits cause to patient access and the medical profession.  We hear claims about doctors practicing defensive medicine at the expense of innovation and aggressive treatment.  We hear claims about doctors fleeing communities.  We hear claims about the reluctance of our young people to enter the medical professions.  We hear claims about pregnant women who cannot find obstetricians to provide care throughout pregnancy and birth.  There might be some merit to this legislation if these claims we routinely hear were true.  They are not. 

The myths associated with medical malpractice lawsuits have virtually all been discredited.  Two of the primary arguments in favor of capping non-economic damages are lowering insurance premiums and preventing doctors from leaving their state or their profession.  The available data suggests that these arguments are unfounded.

In my home state of Vermont, the most recent data shows that the number of physicians practicing in the state has risen steadily from 1,918 doctors in 1996, to 2,589 doctors in 2004.  The number of OB-GYNs in Vermont is also higher today than it was in 2000.  Today Vermont residents benefit from 113 OB-GYNs, compared with 91 in 2000.    

This trend exists nationally as well:  The number of physicians nationally has risen between 1996 and 2004.  We also now have more physicians under the age of 35 today than we did in 1996.  The number of doctors per capita in this country has been steadily increasing since 1965.  It is hard to understand how these trends can be characterized as the loss of people from the medical profession.  There is also no correlation between a state damages cap and the number of doctors practicing in the state.  Nationally, states without caps have 14 percent more practicing physicians. 

We also hear a lot about increasingly burdensome medical malpractice premiums.  There is no doubt that health care providers pay onerous amounts to be insured, and I agree this needs to be addressed.  I have introduced a bill directed specifically toward medical malpractice insurance reform, which I am confident will help solve this apparently unjustified phenomenon.  I hope the Judiciary Committee has a chance to consider it. 

This chart suggests that there is no correlation between malpractice claims and rising insurance premiums.  Between 2000 and 2004, based on data from the 15 best-rated medical malpractice insurers, premiums increased 134 percent, despite the fact that claim payments remained flat for the same period.  I find it hard to see any proof in this data that medical malpractice claims have driven the exorbitant increases in malpractice premiums. 

Proponents of this legislation also claim that it will drastically reduce insurance costs, but even members of the insurance community have disclaimed tort reform as the magic bullet to lower insurance costs.  The Chicago Tribune quoted Dennis Kelly, a spokesman for the American Insurance Association, as saying:  “We have not promised price reductions with tort reform.”  Sherman Joyce, President of the American Tort Reform Association was quoted as saying:  “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.”  These statements are supported by statistical evidence:  The majority of states that have enacted caps have seen no reduction in premiums.  In fact, on average, doctors in states with caps pay more for insurance than in states without caps.   

This legislation will have tangible benefits to one group: medical malpractice insurance companies, whose profits in 2005 were more than twice that of Fortune Five Hundred companies.  Just as we have recently begun to do with rising gas prices and record oil company profits, perhaps Congress should be asking medical malpractice insurers exactly why their premiums are so exorbitant -- if it’s not medical malpractice claims, what is it?  A soft stock market?  Bad investments?  Greed?  If we remove the fallacy of the premium/lawsuit connection, what is left?  I think this is a question that needs to be asked.  Our doctors, like all American consumers, deserve fairness and honesty in the marketplace. 

As we consider the Majority Leader’s bills, I urge other senators to help expose the myths associated with the legislation we address today.  In fairness to the American people, we should be debating the facts, not the myths.  If we acknowledge that the real problem is medical malpractice and the injuries and deaths that result, and not the lawsuits that seek to remedy these harms, I know we can go a long way to helping the medical profession work from within to assure that doctors meet the highest possible standards and strive to prevent medical errors.  After all, those in the medical profession are in the best position to understand what changes must occur, and how best to make sure that needed changes occur.  As an example of this I want to highlight the efforts of anesthesiologists, who accomplished a nearly seven-fold reduction in anesthesia-related errors through cooperative changes to their systems and practices.  Not surprisingly, when anesthesia-related errors decreased, so did insurance premiums.  This should be our model of how to effectively address medical malpractice.  If we work together, between needed reforms in the insurance industry, and by supporting medical professionals in improving the critical work they do, I know we can tackle this problem effectively. 

I know that no doctor wants to harm a patient, but the solution is not to take away the rights of those who are harmed.  Let us not chase a partisan, myth-laden solution to a non-existent problem.  Let us direct our energies toward making American health care better by finding cures to diseases, getting more Americans insured and investing in health care prevention. 

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