John Conyers

Mr. CONYERS

Mr. CONYERS. Thank you very much, Mr. Honda. Tonight, I want to commend my friends on the other side of the aisle, starting with Mr. Tom McClintock of California and those who are with him this evening, because what has happened is that we have begun to see that, between the leaders in the Progressive Caucus and those who can't possibly vote for the Progressive Caucus bill, we are still finding things that we can agree on. For example, is there anybody, the leader of the other side of the aisle, whose group does not believe that we should invest in our children's education by increasing education, training, and social services? We all agree on that. Is there anybody on the other side of the aisle, Mr. Chairman, who doesn't believe that our budget makes no cuts to Medicare, Medicaid, and Social Security benefits? These are beginnings of agreements. We all, on both sides, agree that we must responsibly and expeditiously end our military presence in Iraq and Afghanistan. And I congratulate the Member leading the other side.

Mr. CONYERS

Mr. CONYERS. Madam Chairman, I rise in opposition to this amendment.

Mr. CONYERS. I rise in opposition to the Woodall amendment.

Mr. CONYERS. Madam Chair, we're striking the findings. By striking statements of constitutional authority for the bill, the amendment recognizes that many Members of the House question Congress' constitutional authority to pass H.R. 5. So for that reason, my colleagues, the findings are all important. Supporters of states' rights ought to take the next step and eliminate the section of the bill that preempts State law. Indeed, many supporters of the underlying bill have spent years arguing that decisions about health care are fundamentally prerogatives of the State. So I have only 18 conservative or Republican scholars and leaders that agree with me, including the Heritage Foundation; the Virginia attorney general, Mr. Cuccinelli; the constitutional law professor at Georgetown Law Center; the distinguished Senator from Oklahoma, Mr. Coburn; some of our colleagues, including Judge Ted Poe of Texas, our colleague from Nebraska, Lee Terry, former judge Louie Gohmert, in particular, Ron Paul; the founder of the Tea Party Nation, Judson Phillips. It goes on and on, where we are all in agreement that the findings are, indeed, critical and ought to be left in the bill. To take the findings out is incredible because we say that the Federal Government shouldn't be involved, that it's a State matter, and tort law, itself, is a State matter. So for those reasons, Madam Chair, I am pleased to represent a bipartisan group of Members and scholars that very strenuously object to the findings being removed in this Woodall amendment. Here's what conservative scholars and leaders have to say about this hypocrisy: Heritage Foundation: Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims. Ken Cuccinelli, Virginia Attorney General: Senate Bill 197 takes an approach that implies ``Washington knows best'' while trampling states'' authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same 1 power to regulate commerce that lies at the heart of all the lawsuits (including Virginia's) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen? And if [S. 197, a medical malpractice bill] it were ever signed into law--by a Republican or Democratic president-- would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010. Randy Barnett, Constitution law professor at Georgetown Law Center and senior fellow at the Cato Institute: This bill [H.R. 5] alters state medical malpractice rules by, for example, placing caps on noneconomic damages. But tort law-- the body of rules by which persons seek damages for injuries to their person and property--have always been regulated by states, not the federal government. Tort law is at the heart of what is called the `police power' of states. What constitutional authority did the supporters of the bill rely upon to justify interfering with state authority in this way? Constitutional law professors have long cynically ridiculed a `fair-weather federalism' that is abandoned whenever it is inconvenient to someone's policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers `reserved to the states' as affirmed by the Tenth Amendment, they will prove my colleagues right. Senator Tom Coburn (R OK): What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be. Then we are going to have the federal government telling us what our tort laws are going to be in healthcare, and what about our tort laws in everything else? Where does it stop? One of the things our founders believed was that our 13 separate states could actually have some unique identity under this constitution and maybe do things differently, and I think we ought to allow that process to continue as long as we are protecting human and civil rights. Congressman Lee Terry (R NE): If you're a true believer in the 10th Amendment, then why are we not allowing the states to continue to create their own laws and decide what's in their best interest for their residents? Congressman Ted Poe (R TX): The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide--not the federal government. . . . If the people of a particular state don't want liability caps, that's their prerogative under the 10th Amendment. . . . but I have concerns with the current bill as written. Congressman Louie Gohmert (R TX): The right of the states for self-determination is enshrined in the 10th Amendment . . . I am reticent to support Congress imposing its will on the states by dictating new state law in their own state courts. Congressman Ron Paul (R TX): The federal government shouldn't be involved. It's a state matter; tort law is a state matter. Congressman John Duncan (R TN): I have faith in the people--I have faith in the jury system. It's one of the most important elements of our freedom, and it was so recognized in the Constitution, was felt to be so important, it was specifically put into the Constitution in the Seventh Amendment. And I'll tell you, it's a very dangerous thing to take away rights like that from the people. Senator Mike Lee (R UT) on tort reform: Congress needs to be very careful when it enters into a uniquely state law area like tort. So tort reform needs to be undertaken very carefully insofar as it done at the federal leve1. Judson Phillips, founder of Tea Party Nation: Some conservatives complain opposing unconstitutional tort reform rewards the trial lawyers. The trial lawyers may benefit from stopping unconstitutional tort reform, but we fight to protect the Constitution. In this case, the trial lawyers are with us supporting the 10th Amendment. Robert Natelson, senior fellow at the Independence Institute: To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. . . . During the debate over ratification of the Constitution, leading Founders specifically represented that the subject- matter of H.R. 5 was outside federal enumerated powers and reserved to the states. John Baker, Catholic University law professor: House Republicans hope to nationalize medical malpractice law, which is traditionally a matter of state tort law, by passing H.R. 5, a bill that would wipe out all state medical malpractice laws and complete the nationalization of healthcare. Passage of H.R. 5 would undercut arguments that Obamacare is unconstitutional. Carrie Severino, chief counsel and policy director at the Judicial Crisis Network: Among other things, S. 197 sets a statute of limitations for claims, caps damages and creates standards for expert witnesses . . . but they are not within the constitutional powers granted to the federal government for the very same reasons Obamacare is not. The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill's findings state that health care and health insurance are industries that `affect interstate commerce,' and conclude that Congress therefore has Commerce Clause power to regulate them--even when it involves an in- state transaction between a doctor and patient, governed by in-state medical malpractice laws. I yield back the balance of my time.

Mr. CONYERS. Would the gentleman yield?

Mr. CONYERS. I thank the gentleman for his courtesy. But why, as a new Member--and we welcome you to this body--why would we strike all the findings from H.R. 5?

Mr. CONYERS. Madam Chair, I demand a recorded vote.

Mr. CONYERS. Just to get the facts into this debate, I rise in strong support of the Bonamici amendment. I include for the Record the Congressional Budget Office letter to Chairman Dreier on March 19 in which the CBO estimates that enacting the provision will increase the deficits, if you use IPAB, by $3.1 billion. Congressional Budget Office, U.S. Congress, Washington, DC, March 19, 2012. Hon. David Dreier, Chairman, Committee on the Rules, House of Representatives, Washington, DC. Dear Mr. Chairman: The Congressional Budget Office has reviewed H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011, as posted on the Web site of the House Committee on Rules on March 12, 2012. CBO estimates that enacting the bill would reduce direct spending and increase revenues; therefore, pay-as-you-go procedures apply. Together, the changes to direct spending and revenues would reduce future deficits by $13.7 billion over the 2013 2017 period and by $45.5 billion over the 2013 2022 period. Federal spending for active workers participating in the Federal Employees Health Benefits program is included in the appropriations for federal agencies, and is therefore discretionary. H.R. 5 would also affect discretionary spending for health care services paid by the Departments of Defense and Veterans Affairs. CBO estimates that implementing H.R. 5 would reduce discretionary spending by $1.1 billion, assuming appropriations actions consistent with the legislation. H.R. 5 would impose limits on medical malpractice litigation in state and federal courts by capping awards and attorney fees, modifying the statute of limitations, and eliminating joint and several liability. It also would repeal the provisions of the Affordable Care Act (ACA) that established the Independent Payment Advisory Board (IPAB) and created a process by which that Board (or the Secretary of the Department of Health and Human Services) would be required under certain circumstances to modify the Medicare program to achieve certain specified savings. CBO estimates that the changes in direct spending and revenues resulting from enactment of the limitations on medical malpractice litigation would reduce deficits by $48.6 billion over the 2013 2022 period. CBO also estimates that implementing those provisions would reduce discretionary spending by $1.1 billion, assuming appropriations actions consistent with the legislation. The basis for that estimate is described in the cost estimate CBO transmitted on March 10, 2011, for the HEALTH Act as ordered reported by the House Committee on the Judiciary on February 16, 2011. The estimated budgetary effects have been updated to assume enactment near the end of fiscal year 2012 and to reflect CBO's current budgetary and economic projections. CBO estimates that enacting the provision that would repeal the Independent Payment Advisory Board would increase deficits by $3.1 billion over the 2013 2022 period. The basis for that estimate is described in the cost estimates CBO transmitted on March 7 and March 8, 2012, for H.R. 452 as ordered reported by the House Committee on Energy and Commerce and by the House Committee on Ways and Means, respectively. H.R. 5 contains an intergovernmental mandate as defined in the Unfunded Mandates Reform Act (UMRA) because it would preempt state laws that provide less protection for health care providers and organizations from liability, loss, or damages (other than caps on awards for damages). CBO estimates the cost of complying with the mandate would be small and would fall well below the threshold established in UMRA for intergovernmental mandates ($73 million in 2012, adjusted annually for inflation). H.R. 5 contains several mandates on the private sector, including caps on damages and on attorney fees, the statute of limitations, and the fair share rule. The cost of those mandates would exceed the threshold established in UMRA for private-sector mandates ($146 million in 2012, adjusted annually for inflation) in four of the first five years in which the mandates were effective.

Mr. CONYERS. To my colleague, Mr. Dent, hold up. You're giving complete immunity to hospitals, physicians, and providers for any emergency activity. Do you want to do away with all liability whatsoever because it's in an emergency room? Of course, you don't. But this amendment requires the Federal Government to pay for the medical errors committed and denies our government any ability to address or reprimand those who commit medical errors. You don't want to do that. You don't want to go that far. The Federal Government would be responsible for all occurrences of negligence in an emergency room. Please. Ninety-eight thousand patients die every year due to preventable medical errors. I reserve the balance of my time. Announcement by the Acting Chair

Mr. CONYERS. But what we're doing in the amendment is to provide immunity to all hospitals and physicians and require the Federal Government to pay for medical errors committed by them. Look, we have 98,000 patients dying every year due to preventable medical errors. I'm not slamming the docs and the hospitals. I'm saying that we don't want to provide complete immunity. This Dent amendment, Madam Chairman, does just that: it provides complete immunity. So I'm asking my colleagues to please slow down and realize that irreparable harm due to negligence in the emergency room--and we've got pages and pages of examples--would be not subject to adjudication because of this amendment. It's a very dangerous amendment. It goes way too far. It's overbroad. And I urge my colleagues to carefully examine the consequences of this provision. I reserve the balance of my time.

Mr. CONYERS. Madam Chairman, this amendment would actually lower the incentive to practice safe medicine, and I say this on careful examination. I'm surprised that my colleague, the leader on the other side, himself a distinguished doctor, would be silent on this provision because it shields hospitals, employed physicians, even physicians who are already covered by private insurance; and physicians working in an emergency room setting will never be held accountable when they wrongfully injure their patient. That is my only reservation and objection to what is otherwise an honorably intended revision of this measure. When hospitals and emergency room departments are not held accountable for medical errors and for negligence, then they have no incentive to offer quality care or hire competent physicians. Please, I beg you to carefully examine the dangers implicit in the Dent-Sessions amendment. I yield back the balance of my time.

Mr. CONYERS. Madam Chairman, I rise in strong opposition to this amendment.

Mr. CONYERS. It is my position that within the good that this does is a poison pill. The good is that consumers would also benefit from a repeal of McCarran-Ferguson. We salute you. But the poison pill is that this measure would ban class actions on a claim for violation of antitrust law, which is the cleverest way of ending antitrust law. Unless you have a class action--well, my doctor-Congressman is not a lawyer, but without class actions, you can't bring a claim because nobody's going to file a suit on a $30 issue, 1 million people suing for $30 each. So it's a poison pill. I'd like to yield such time as he may consume to the gentleman from Oregon (Mr. DeFazio), who had an amendment that had huge bipartisan support.

Mr. CONYERS. Madam Chairman, I yield myself the balance of my time. We are here debating an overwhelming proposition offered by the gentleman from Oregon (Mr. DeFazio), which would have corrected this problem so beautifully. But now comes the poison pill, which says no more class actions. If you can't bring class actions in this matter, then there's no way people with small, valid claims can go into court and sue for 30 bucks. Now, I think most people understand this without going to law school. If you eliminate class actions, you have effectively destroyed the McCarran-Ferguson repeal that we are bragging about. So it's a kind of undercover scheme. We pretend we're doing something good. We ignore DeFazio's overwhelmingly bipartisan supported provision, and we let the insurance company through, and they live to continue the vile practices that have been revealed and discussed in this debate. I yield back the balance of my time.

Mr. CONYERS. I rise in opposition to the Stearns amendment.

Mr. CONYERS. Madam Chairman, the problem here is we don't have a problem. The 1997 law, which is called the Volunteer Protection Act, which I don't recall being mentioned, already provides immunity to all volunteers, not just doctors, to everybody, all volunteers, and has worked very effectively to ensure that nonprofit or government entities remain responsible for background checks. I remind my colleagues of the Tenth Amendment to the Constitution, which is violated in H.R. 5, which preserves our system of federalism that allows States to legislate their own State tort laws and the qualifications of health care professions. What could be more simple than that? This is one of the least debated provisions of our great Constitution. And so amendments that limit liability of health care professionals by our Congress and provide a virtual blanket immunity to any individual for any harm while acting in a volunteer capacity during a disaster violates the Tenth Amendment to the Constitution. Madam Chairman, I reserve the balance of my time.

Mr. CONYERS. Madam Chair, I raise a question to my good friend from Florida. If you feel strongly about this, why don't we modify the Volunteer Protection Act of 1997 rather than go into the business of a constitutional violation by changing all of the State laws with this wholesale limitation of liability? Why not do it in a more appropriate way, which we would be bound to consider with you? I yield to the gentleman if he cares to make a comment on that.

Mr. CONYERS. The Volunteer Protection Act, I say to my colleague from Florida, is a Federal bill enacted in 1997, and that's the one that I would urge you to want to join with me and others to modify if there is a problem. What you're doing by Stearns-Matheson is that you are now changing the law in all 50 States without going through the Volunteer Protection Act over which we have jurisdiction. That's the reason that I urge my colleagues that there is no need to upend existing State laws to provide unnecessary immunity. I reserve the balance of my time.

Mr. CONYERS. Madam Chair, that's what we're doing under the Volunteer Protection Act is protecting our volunteers, our good citizens that come forward. Please, I would like to focus on the amendment here that provides a lesser degree of liability protection while allowing weaker State standards to remain in place. What we need to do is to preserve our system of federalism and support the Volunteer Protection Act which is constitutional, which does not violate the prerogative of the States to manage and legislate on their own tort laws and determine the qualifications of health care professionals.

Mr. CONYERS. Mr. Speaker, I demand a recorded vote.

Mr. CONYERS

Mr. CONYERS. Will the gentleman yield?

Mr. CONYERS. I would like to proudly associate myself with your remarks. Announcement by the Speaker Pro Tempore

Mr. CONYERS

Mr. CONYERS. Mr. Chair, I yield the gentlelady 1 additional minute.

Mr. CONYERS. Madam Chair, I yield myself such time as I may consume. Ladies and gentlemen of the House, when we passed the landmark Affordable Care Act, some derisively termed it ``ObamaCare.'' I believe that some day this bill will be famous because it is named after the President. We were proud to have taken up an important step in realizing a goal that we've been striving for for quite a long time. But today, we're confronted with a leader in the House, himself a medical doctor, who is urging that we take a step backward and roll back our progress. The measure before us will repeal the Independent Payment Advisory Board, which would save us millions of dollars and pay for itself by pushing through malpractice legislation that undermines State sovereignty and enriches corporations that surely don't need it. Congress established the advisory board to slow Medicare's growth costs. The Independent Payment Advisory Board does not undermine our role in Medicare policy nor does it cut access to care. Its repeal, however, removes critical oversight and efficiency and paves the way for the majority's plans to replace guaranteed health care for seniors with corporate voucher systems. How many of us have constituencies that you could go back home and tell your constituents that you're going to replace this health care bill that is praised from one end of the country to the other, that has taken decades to enact, that we're now going to use vouchers for health care? When we passed President Obama's landmark Affordable Care Act, we were proud to have taken an important step in realizing that ideal. But today, the Majority takes a step backwards. They seek to roll back our progress. H.R. 5, the so-called ``Help Efficient, Accessible, Low-cost, Timely Healthcare Act,'' will repeal the Independent Payment Advisory Board, IPAB, which saves us millions, and pay for it by pushing through malpractice legislation that undermines State sovereignty and enriches insurance companies. Congress established the IPAB to slow Medicare's growth costs. The IPAB does not undermine our role in Medicare policy or cut access to care. Its repeal, however, removes critical oversight and efficiency, and paves the way for the Majority's plans to replace guaranteed healthcare for seniors with corporate voucher systems. Rolling back these cost-cutting measures will cost the Federal Government money, and so to pay for this costly repeal, the Majority has offered up the same tired old medical malpractice proposals they have been pushing for the last two decades. In fact, this is the fourteenth time that the full House will have considered this measure since 1995. It wasn't a good idea 20 years ago, and it isn't a good idea today. Rather than helping doctors and victims, the bill before us represents a windfall for the health care business. It pads the pockets of insurance companies, HMOs, and the manufacturers and distributors of defective medical products and pharmaceuticals. And it does so at the expense of innocent victims--particularly women, children, the elderly, and the poor. The malpractice liability provisions before us today would supersede the law in all 50 states to cap non-economic damages, cap and limit punitive damages, limit access to the courts for poorer victims of medical malpractice, shorten the statute of limitations for claims, eliminate protections for children, and eliminate joint and several liability. We need to cut the charades and get to the heart of the problem. The malpractice insurance industry is plagued by collusion, price fixing, and other anticompetitive activities. Yet this bill does nothing to respond to this problem. It is also clear that a legislative solution largely focused on limiting victims rights available under our state tort system will do little other than increase the incidence of medical malpractice-- already the sixth leading cause of preventable death in our nation. Under the proposed caps on damages, Congress would be saying to the American people that we don't care if you lose your ability to bear children, we don't care if you are forced to bear excruciating pain for the remainder of your life, we don't care if you are permanently disfigured or crippled. The proposed new statute of limitations takes absolutely no account of the fact that many injuries caused by malpractice or faulty drugs take years or even decades to manifest themselves and trace the root cause. The bill would allow insurance companies teetering on the verge of bankruptcy to delay and then completely avoid future financial obligations. And they would have no obligation to pay interest on amounts they owe their victims. And guess who else gets a sweetheart deal under this legislation? Drug companies--most of which are foreign. This bill makes drug and device manufacturers immune from punitive damages, so long as the FDA has approved their products or their products are generally considered ``safe,'' no matter how egregious their behavior. The bottom line is that this legislation doesn't prevent terrible things from happening in hospitals. The bill's takeover of state courts won't help judges throw out frivolous lawsuits, and a ceiling of a quarter of a million dollars won't stop bad actors from looking for a payout. Instead, this legislation lifts legal and financial risk from hospitals, drug manufacturers, and insurance companies, and drops that burden onto real people, the victims of medical malpractice. This bill helps the powerful at the expense of the injured, the elderly, and the very young. It raises serious federalism concerns and overturns the law in all 50 states. And it huts real people with real injuries, blocks them from the courts and limits their rights to legal redress, all in the name of a dangerous, unnecessary, and unfair theory about malpractice liability. I urge my colleagues to reject this anti-patient, anti-victim legislation. Madam Chair, I reserve the balance of my time.

Mr. CONYERS. Madam Chair, I am pleased now to yield 1 minute to the former Speaker of the House of Representatives, our leader, the gentlewoman from California, Nancy Pelosi.