John Ensign

Mr. ENSIGN

Mr. ENSIGN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 1170

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I think we have 12 minutes 20 seconds on our time. How much time is on theirs?

Mr. ENSIGN. Mr. President, first of all, let's make sure one thing is clear. What we are debating today is whether to proceed to the bill. We are trying to get on the bill. If people have certain problems with the bill, they can offer amendments, but only if they allow us to proceed to the bill. That is what the vote is on today, whether or not we are going even consider that we might address a crisis that is happening in the United States. There have been a few things that have been talked about from the other side of the aisle today that I would like to address. I want to read from a report because they have been quoting this study. The Weiss study, which has been referenced repeatedly by the other side of the aisle, supposedly took numbers from this publication called the Medical Liability Monitor. Mr. President, I ask unanimous consent that a portion of this report be printed in the Record.

Mr. ENSIGN. Mr. President, the editor of this report has basically said the Weiss study they quote is completely misusing their numbers. I refer you to a portion of the report entitled ``Survey Finds Wide Swings in Premiums'' because my colleagues on the other side of the aisle state that there have not been these wide swings in premiums. The report says: The size of increases in some areas in which malpractice problems with claims and claims severity have exploded was mind-boggling. Increases of 40 percent, 50 percent, 60 percent, 80 percent were not uncommon. In Arkansas one carrier boosted rates by 90.1 percent to 112.7 percent. Notice what it said here. It said, ``malpractice problems with claims and claims severity have exploded.'' The premium increases have been ``mind-boggling.'' The Senator from Illinois has put up pictures of victims of malpractice. I want to show a picture of one of the victims, because there are victims on both sides of this issue. Picture this gentleman shown here. This was a gentleman, Mr. Lawson, who was visiting the city in which I live, Las Vegas, Nevada with his family. Unfortunately, the time they visited was the week the trauma center closed because of the crisis we have in the State of Nevada. The trauma center closed, and this gentleman, unfortunately, could not get care. In this picture he looks healthy. Unfortunately, he is no longer with us. There are a lot of people the other side have shown as victims. Those people, if we do not do something, will not even have doctors to go to because doctors are leaving the profession, and new doctors are not coming in to replace them. We have a crisis in this country in 19 States. All but six States are showing serious problems. The Senator from Illinois quoted my words yesterday, that it takes years to find out whether legislation in the States that have enacted reform will be effective. The reason for that isn't that they aren't necessarily good pieces of legislation, it is that they are being challenged in court and then appealed and appealed and appealed. A lot of the State courts are striking down these laws, because of some technicality in their constitution or a particular problem in their piece of legislation. Because of that, there is uncertainty even when States pass legislation if this crisis will remain out of control. The insurance companies don't know whether the laws are going to be upheld, so they can't lower rates because they may end up with a huge liability down the road if the law is struck down. That is the problem. We must act now while we still have some time. How bad does the situation have to get in the future? I would love to add into this bill, as we did with campaign finance reform legislation in the year 2001, an expeditious judiciary review of the law so that we can find out whether it is going to be held constitutional or not. But we can't do any of that because the other side of the aisle will not even allow us to proceed to the bill. We can't debate the legislation and we can't offer any amendments unless we can at least agree to proceed to the bill. If the opponents don't like the legislation, if they think there are ways to fix it, they should allow us to at least proceed to the bill so that we can have amendments offered, have a full debate, bring out all the pictures of the victims you want to bring out, amend the bill, and come up with legislation that is going to actually fix the problem in the United States. It really is a crisis and you can be sure that debating on the motion to proceed, and not agreeing to take up the bill will not fix the problem. I wish to again illustrate the differences in the premiums across the country by the use of this chart. In white are the two States with cities represented that have had medical liability reforms in place for some time. I yield myself an additional minute. The ones in gray have not. Let's go to obstetrics and gynecology. Los Angeles, CA, the bill before us today mirrors the law they have there. There is a $54,000 medical liability premium in Los Angeles. In Denver, where they have had it since 1988, it is $30,000. New York, Las Vegas, Chicago, Miami are much higher: $89,000, $108,000, $102,000, over $200,000 in Miami. That illustrates the difference in the premiums in States that don't have the reform. These numbers are continuing to go up at a rapid rate. The numbers reflected here are actually a couple years old, and they are continuing to skyrocket in States without reform. That is why we need to act. It is a national priority, and we must act now. I reserve the remainder of our time.

Mr. ENSIGN. Is the Senator aware, last year, when his party was in control, 115 bills bypassed the committee process, including the economic growth package, No Child Left Behind, the Patients' Bill of Rights, a Medicare prescription drug bill, the energy bill, and the Trade Promotion Act? All were brought directly to the floor and bypassed the committee process. Is the Senator aware his party did that?

Mr. ENSIGN. Will the Senator yield for a question?

Mr. ENSIGN. Mr. President, I appreciate the words of the majority whip. I rise today to speak on behalf of the bill that I have introduced, the Patients First Act. The reason we call it the Patients First Act is because it really does put patients first. In our health care system today, we have too many patients who are either close to being denied care or have been denied care simply because physicians cannot afford the medical liability premiums they are facing today. My State, as the Senator from Kentucky mentioned, is one of those States that is in crisis. Our State has a level I trauma center which serves a four-State region, and last year that trauma center closed for 10 days. The closure of that trauma center was the only event in my state of Nevada that brought the people who were against reforming our medical liability system and our overall tort system and the proponents of that reform together. This crisis allowed a special session of the legislature to be called so they could try to deal with this situation. I commend our Governor and State legislators for their efforts to deal with the situation. The problem in Nevada, as with other States that have enacted reform, is it will take 6 to 10 years, depending on the length of the appeals and the challenges to the law, before we know whether the bill will actually take effect and have the result of lowering the costs for medical liability insurance. In the meantime, Nevada and many other States are losing doctors in droves. Nevada is the fastest growing State in the country, and we cannot afford the migration of doctors from our state to continue. Speciality fields are the most severely affected by this crisis, and of those, obstetrics and gynocology are of the most severely affected. In southern Nevada, we have 5,000 to 6,000 new people a month moving in. This increase in our population during this time of crisis has resulted in three things happening. One is we are losing doctors; two is new doctors are not coming to replace them; and three is, the few ob/gyns who actually are staying, when they were delivering 250 to 300 babies a year previously, they have cut that number down to 125; 125 babies from 250 to 300. One can do the math. It does not add up. Additionally, many doctors who previously delivered babies in high- risk pregnancies no longer can deliver them because their insurance company will not cover them for that procedure. We are in a situation where some of our best doctors are not able to give the care they are are capable of giving. I see my friend from Wyoming just arrived in the Chamber. Mr. President, I say to him, I am going to take a couple more minutes and then I will yield the floor. This is not just a Nevada issue. As the Senator from Kentucky mentioned, 19 other States are in crisis, and all but 6 States are showing signs of heading into a crisis. In every State that is in crisis or heading into a crisis, we hear the same kind of stories from patients. It is a real problem, a problem the Senate must address. The House has already dealt with it. Now the Senate must deal with it. This crisis is a national problem. For Medicare, Medicaid, veterans, 60 percent of all the medical bills are paid through the Congress. Because of that, it is a national issue and it requires the House of Representatives and the United States Senate to act in concert to send a bill to the President. The House has done its job. Now it is up to the Senate. I will share one or two quick anecdotes to illustrate real people who have been touched by this issue. During the closure of the level I trauma center in my home State of Nevada, a woman and her father, Mr. Lawson, were in Las Vegas visiting when this level I trauma center closed. The father had to be transferred to a different emergency room, and on his way there, unfortunately, this gentleman passed away. Level I trauma centers are staffed with the most talented, specialized people in the medical profession. We have trauma centers specifically staffed by the best because they must save lives that are in jeopardy every day. That trauma center closed because the specialists could not afford the insurance, and they could not afford the liability from the exposure of potential high-risk surgeries to save lives. The only way the legislature was able to open that trauma center again is they covered the people who worked there under the umbrella of the State. By the way, when we talk about caps, my home state of Nevada has a cap of $50,000 total for economic, non-economic and medical. It is a total $50,000 cap, obviously much more severe than we would even think to consider in this body. In the bill before the Senate today we have a $250,000 cap on pain and suffering, but an unlimited amount on economic damages and medical expenses, and if there is gross negligence, there are punitive damages in this bill as well. We think we have taken a balanced approach so that patients throughout this country are not denied care, such as when the trauma center in Nevada was forced to close, do not have to go through that experience again. We have to ask the fundamental questions: How many more people have to be denied care who really need it? How many more people have to die in this country before this body will take action? That is really the bottom line today. People are being denied care, and more and more people will be denied the care they really need. That is why this institution needs to act. Mr. President, I yield the floor so the Senator from Wyoming may speak.

Mr. ENSIGN. I yielded to the Senator from Missouri and reserved 2 minutes and 20 seconds for myself.

Mr. ENSIGN. I have 2 minutes and 20 seconds remaining.

Mr. ENSIGN. Mr. President, I yield myself 5 minutes.

Mr. ENSIGN. Mr. President, how much time is on each side?

Mr. ENSIGN. Two Senators have just come into the Chamber. As soon as they are ready, I would like to yield them 10 minutes and reserve 2 minutes on our side and we can close up. At 11:10, the Democratic leader will be recognized. So I will yield 10 minutes to the Senator from Missouri, Mr. Bond.

Mr. ENSIGN. Mr. President, I thank my colleague for the time. I will make a couple of quick points. First, we have seen a lot of pictures from the Senator from Illinois. He talked about the $250,000 cap on damages included in this bill. Let's get one thing straight. It is a $250,000 cap on pain and suffering. He put up a picture of a young child. I will read some of the totals. California has comprehensive medical liability reform in place that this bill I have presented today is modeled after. These are the following awards, and these are almost all economic damages or medical damages that were awarded to these infants: $43,500,000 in May 2002; July 1999, $30,800,000; April 1999 in Orange County, almost $7 million; January 1999 in Los Angeles County, almost $22 million; December 2002, $84 million. So for pictures to be put up and to say, what is this child going to get, this child can get a lot. Most of these awards are in economic damages or in medical expenses. Those damages are not capped in this bill. The next picture we have to put up is a woman with her child. Because there was no OB/GYN available, she had to deliver this child on the side of a road by herself. Unfortunately, the patient did have complications, and the mother had to provide CPR to the baby on the side of the road in the middle of the Arizona desert. Thankfully, the baby survived. But she could have had serious consequences, and then they would not have been able to get compensation from anybody. And this is because there was no care available at the community hospital that she had to bypass because the doctors could no longer afford the premiums because of the frivolous and outrageous lawsuits that are destroying our court system. I yield the floor. Nomination of Victor J. Wolski

Mr. ENSIGN. Mr. President, what is this about today? What are we really talking about? We are talking about access to health care by patients. We have enacted reasonable limits in this bill so the crisis facing 19 States and the patients in 19 States across this country can be resolved. The problem is caused by out-of-control jury awards and frivolous lawsuits which are cheaper to settle--and those get settled all the time--than they are to fight. The reason they will settle them is the potential huge award and the huge downside risk they have down the line. A lot of insurance companies just settle those and pass the higher rates on to doctors. That has led to many physicians leaving those 19 States in crisis and a lot of new doctors not going into the specialties which are in short supply. If we ask ourselves the fundamental question, Is there a shortage of doctors or is there a shortage of lawyers? we do not have a shortage of lawyers in my State home state of Nevada, or in any other State, as far as I know. We do not have any shortage of people going into the practice of law. We do have a shortage of people going into the practice of a lot of the specialties in health care. The reason is that we have a jury system that is out of balance. We did not used to live in this litigious society of today. People are so sue happy and the system is set up to encourage frivolous lawsuits. California and Colorado are the two best examples we have of medical liability reform that has been on the books long enough. We know it works. Victims get what they deserve in those States, but the system is balanced so doctors can afford their premiums on medical liability. That is what the bill before the Senate today lays out, a model very similar to Colorado and California for the rest of the country. I encourage all of our colleagues to at least vote for the motion to proceed to the bill so we can have a full debate with amendments to proceed to solve this severe crisis we have in access to health care across the country.

Mr. ENSIGN

Mr. ENSIGN. They may not have the education to know what their total potential was but it is 60 or 70 years' worth of earnings they can get in economic damages. That can be significant. I will freely admit it is not what Barry Bonds would get if he got hurt, or LaBron James, the new basketball player. They would obviously get a lot more money because they have the potential of making so much more money. But this child would still get a significant amount. Let me go through these points, and then I will yield for a question. All medical expenses would be covered under this bill: long-term care, assisted living devices, child care, household services, lost time, special medical damages, value of care, counsel, advice, aid, comfort, counsel for children, parents, and spouses. All of those are possible under economic damages in this bill. The final point I wish to make is this: Does this capping hurt patients? We just have to look at Colorado and California and ask: Are there people out there being hurt? I submit there are a lot more people being hurt and going to be hurt in States such as Nevada where the doctors are leaving, where the doctor will not be in that emergency room or will not be able to deliver a baby, especially in those high- risk pregnancies. This one case in Florida is a very good example. I actually met this gentleman. He is a physician himself. He was not performing duties as a physician at this time, he was a parent of an injured child. His name is Dr. Frank Shwarin. His 4-year-old child in Naples, FL, fell and hit his head on the side of the swimming pool. This was in July of 2002. The father is named Frank and Craig is the son. He rushed him to the nearest hospital only to find that none of the neurosurgeons on call would treat patients under 18 years of age. Why? Because they could not get medical liability coverage to treat, even in an emergency situation, a pediatric neurosurgery case. They had to medevac his son a couple hours away. Fortunately, because the father is a doctor, he was able to keep his son alive during that time. A woman testified before the Senate that when the level I trauma center crisis happened in my State, her father died when that trauma center was closed because he had to be sent to another emergency room, and an emergency room is not a trauma center. They do not have the kind of expertise to treat severe trauma. As a result, her father died. We cannot guarantee he would not have died in the trauma center, but we can guarantee he would have had the best possible care and the best chance of living. That is what I believe this debate has come down to: The system is out of balance now. It is not working. To correct this imbalance, we have to start reining in some of these frivolous, outrageous jury awards. I yield for a question.

Mr. ENSIGN. I say to my friend and colleague that it is obvious why. We could not get a bill to the floor. The Senator knows that and everybody here knows that. It is just like last year when the Senator was in the majority, there were at least two bills that I remember, the Energy bill, as, well as the prescription drug bill, that were brought to the floor that were not brought through committee. They were brought directly to the floor by the majority leader at the time. It is not a common procedure, but it is a procedure that has to be done every once in a while to bring up important legislation that cannot go through committee and my colleagues know cannot get through committee. The way the Senate works is so different than the House, and the Senator knows that. We both served in the House of Representatives. The House of Representatives does almost all their work in the committee. We can do a lot of our work on the floor and produce a pretty darn good product by bringing it to the floor, amending the bill on the floor, and that is what I think we should do.

Mr. ENSIGN. That would be fine. I have a couple other issues to go through. There are a few other cases I would like to bring to the attention of our colleagues. First, because we need to put a real face on this issue--we need to put a face on the patients, and I think it is legitimate to put a face on the other way. I think it is legitimate to put a face on somebody who has had a claim of malpractice and actually had malpractice committed against them, and it is also fair to put faces on those people who now are having trouble finding the kind of health care they need. This is a balancing act, there is no question about it. There is no perfect answer to this situation. I wish there were. The fact is, the current system is driving health care providers out of the practice of medicine, hospitals are closing down, and we need to correct the situation so that when we seek health care in an emergency situation or in a nonemergency situation, we will have the kind of care we need. A friend of mine in Las Vegas has Parkinson's disease and goes down to Loma Linda--I told this story earlier today--to see his subspecialist in neurology to treat this disease. He had some fairly radical surgery where they actually separate parts of the brain. He has had very good success with it. He had a specialist talked into moving his practice to Las Vegas shortly before the medical malpractice crisis hit in Las Vegas. Once that hit the news, the guy said: Sorry, I live in California where we have caps. I cannot go to Las Vegas and pay $250,000 a year for my practice for medical liability coverage. I cannot afford to do it. Why would I do that when I have a good practice here, we have caps, and it is working well in California? He wanted to move to Las Vegas. He was ready to go with his family. He liked the quality of life in Las Vegas. He did not go simply because he cannot afford to take that kind of economic hit. So people in Las Vegas have to drive down there. Most of the time those are not emergency cases, but for those cases that are an emergency, it is just a shame. People say this is a State issue. I would counter that this is the United States of America, and we are supposed to be able to live where we want to live, and now we are saying to people: No, you cannot go there because of medical liability premiums, you cannot afford to open up your practice because of medical liability premiums. People should be able to find the kind of health care they need wherever in the United States and live the quality of life and obtain the best health care they can possibly get based on what is available in the area. I do not think outrageous premiums should be the limiting factor. Let me close with this point, Mr. President. Earlier there was debate about punitive damages and that we are protecting big companies. Under this bill, we do protect companies that make medical devices if they have followed FDA regulations. In other words, the manufacturer would not be liable for punitive damages if it satisfied FDA's rigorous approval process and if the harm to the patient did not result from the company's violation of an FDA regulation. If they played by the rules that the Government set down, we protect them in this bill from noneconomic--we do not protect them from economic or from medical expenses. But if they violate the FDA rules, then they are not protected. I think that is fairly reasonable. That is why we think this bill is a reasonable compromise, is a reasonable approach to solving what I believe is an out-of-control system. I will be happy to yield for questions.

Mr. ENSIGN. The Senator from Alabama brings up a very true point, but also the Senator from Illinois is correct in that we do need to do a better job of policing the physicians. They need to do a much better job of that. That is why I brought up the point of the boards. The point is, though, if we vote for cloture tomorrow, maybe we can work this out. Maybe we can come up with something that could be addressed, or at least give suggestive language to the States to be able to work this out. It is so clear that if we can invoke cloture--for the general public, that means that we can proceed to the bill. The vote tomorrow is just whether we can proceed to the bill. All of this is just pre- debate on whether we are going to proceed to a bill that is so critical to the future health care in this country.

Mr. ENSIGN. I am happy to yield for a question.

Mr. ENSIGN. I do not know if the Senator can see this chart--maybe we can have that chart turned just slightly so the Senator from Alabama can see it, but it brings up the exact point. The States that have capped noneconomic damages in the white, California and Colorado, represented by Los Angeles and Denver, in those States let's go down to the OB/GYNs, $54,000 in Los Angeles for the annual premiums for the medical liability insurance, $30,000 in Denver. Go over to New York; it is almost $90,000; in Las Vegas, $108,000. I guarantee that number in Las Vegas is old because friends of mine who are OB/GYNs say they are paying anywhere from $130,000 to $150,000 a year. Chicago, $102,000 and Miami is over $200,000 a year. The cities in gray, representing the states in gray, have no tort reform that has been on the books. Nevada has it but it has not been on the books long enough. It will take 6, 8, 10 years. Los Angeles and Denver have had their laws on the books long enough to work. Because they have enacted what we want to do today, we see these premiums. I yield the floor. The PRESIDING OFFICER (Mr. Talent.) The Senator from Alabama.

Mr. ENSIGN. If the Senator will yield, is the Senator aware that, for instance, in Las Vegas, they are limiting the number of babies they are allowed to deliver to 125. What your friend was talking about is right, they used to deliver 250 to 300. Now they limit how many they can deliver.

Mr. ENSIGN. Mr. President, we know we live in a litigious society. We are sue happy today. Everything is somebody else's fault, and we immediately go to court. Because of the nature of our courts, it is easier to settle. When we settle, it drives up the cost for all of us. A lot of the cases never make it because it is too expensive to take the case all the way to court. A lot of companies especially are self-insured for certain amounts of money. It is easier for them to calculate the cost of going to court, and what happens in the long run is that all of us pay for that in higher premiums. When we have higher premiums, it is pretty simple. We end up with a situation where employers cannot afford it. A lot of small employers especially are dropping their health insurance coverage and we are ending up with 41 million uninsured in this country and a big part of that is the cost, not only of the premiums to doctors but just the whole cost of defensive medicine that we have to practice today because of the fear of being sued.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I was scheduled to make a statement on the medical liability bill, and I am prepared to do that at this time.

Mr. ENSIGN. Probably 10, 20 minutes.

Mr. ENSIGN. Mr. President, I have come to the Chamber to talk about the legislation we are going to be discussing for the next couple of days. It is very important legislation that affects people in virtually every State in the country. We have patients today being denied access to medical care in many States across the country, and we are going to explore why that is happening and what I believe the solution should be. Several States are losing medical professionals at an alarming rate, leaving thousands of patients without a health care provider to serve their needs. In Bisbee, AZ, the town's only maternity ward closed. Today expectant mothers must drive more than half an hour to have their babies delivered. In Mississippi, 11 out of 21 obstetricians terminated service in four rural counties. In my home State of Nevada, our only level 1 trauma center closed for 10 days, leaving every patient within 10,000 square miles unserved by a trauma unit. The bottom line is patients cannot get care when they need it most. By definition, this is a crisis. This crisis boils down to two factors: affordability and availability of medical liability insurance for providers. The States in red are currently in crisis. A number are new States in crisis. We can see they have been added, including the Chair's State of Wyoming. My State has been in crisis for quite some time now, and it has led to a lot of the national press, but it is certainly not alone. The States indicated in yellow are the States that have problem signs. The States that currently seem to be OK are indicated in white, and we can see that very few States are in pretty good shape. Most of those States have enacted medical liability reform that has been in place long enough to stabilize the rates on medical liability insurance. On affordability, the American Medical Association found that in the year 2000, medical liability insurance rates increased at least 30 percent in 8 States and by at least 25 percent in more than 12 other States. In this past year, the physicians in my State would be pleased if the rates had only gone up that much. These rates are forcing more physicians, hospitals, and other health care providers to limit their practices or to leave the profession altogether. Anecdotally--and obviously this hospital would not want this word to get out--at this time of the year when they get applications for new residents, they normally get about 18 to 20 residents applying for slots at that hospital. That is an average of 18 to 20 each year. This year they have received zero applications, and that is because of the medical liability crisis that is occurring in my State. Rates are forcing so many physicians and hospitals into a situation they did not want to be in. They went into these practices because of the compassion they felt for patients, and they are not being able to deliver the services because of the out-of-control costs of medical liability insurance. On the issue of availability, thousands of doctors nationwide have been left with no liability insurance as major insurers are either leaving the market or raising the rates to astronomical levels. Why are insurers raising rates or leaving the market? Because there is no stability in the marketplace for providing medical liability insurance. Why is that the case? Because our health care system is being overrun by frivolous lawsuits and outrageous jury awards. This excessive litigation is leading to higher health care costs to every American and an unstable peace of mind for our health care providers. This chart shows the average payment in red from the year 1989 to the year 2001 and the median payment. We can see the dramatic increase, especially in the last few years, and if this chart continued out, it is continuing that trend up to the point where the average being paid in jury awards is continuing to skyrocket, and it is doing that because of the number of over $1 million awards being made by juries. This is a chart reflecting the median jury award. We can see this is the $1 million line, and we can see what has happened. It has gone up. This, unfortunately, has created a situation where doctors, hospitals, and health care providers cannot afford to buy the insurance they need to continue practicing. This excessive litigation is leading to higher health care costs for every American and an unstable peace of mind for our health care providers. Health care professionals are forced to practice defensive medicine by ordering unnecessary tests just to avoid being sued for ``underdiagnosing'' their patients. A study by the Department of Health and Human Services found defensive medicine is costing the Federal Government an estimated $28 billion to $47 billion in unnecessary health care costs. Who else pays for these unnecessary costs? Every American with health insurance in the form of higher premiums and, obviously, the American taxpayer. Too often costs are so great that employers have to stop offering coverage altogether, thereby increasing the number of uninsured Americans. A lot of those uninsured Americans are younger, healthier people. So the people who are left in the health care field are a higher risk pool, which drives up the cost even more, which causes more and more people to not be able to afford health care insurance; therefore, more uninsured. It is a vicious cycle that goes on and on. This cycle has to be stopped. We can do that by passing national medical liability reform right now. Comprehensive reform is critical on a national level because every American patient should have access to affordable and high quality health care. Likewise, every responsible, meritorious member of the health care community should not be afraid to provide such care because of the fear of litigation. To achieve these reforms, I have introduced the legislation that is before us today, known as the HEALTH Act. It has several key reforms. It includes a $250,000 cap on noneconomic damages, joint liability, and collateral source improvements, and limits on attorney's fees according to a sliding scale award. In addition, my legislation includes an expert witness provision to ensure that relevant medical experts serve as trial witnesses instead of the so-called professional witnesses who are used to further abuse the system today. If one talks to physicians, there is literally a whole industry that has been created of these ``professional witnesses.'' It would make sense that if somebody was testifying in a case involving neurology, that the person should have expertise in the field of neurology. I think that makes incredible common sense, but that is not the way it works today. As long as somebody is a physician, they are able to testify and be called an ``expert.'' Our legislation today says that if they are to be called an expert, they must have expertise in the field in which they are testifying. Over 50 organizations are in support of my bill, including business groups, medical associates, device manufacturers, and the list goes on. I have heard from people all over my State, and not just physicians. This is not a doctors versus lawyers issue. This is about patient access to medical care. That is why we have heard from nurses, physical therapists, and people who work in doctors' offices and understand the problem that is going on. We have heard, of course, from physicians, but we have also heard mostly from the patients who understand; we have gotten so many calls from women whose physicians used to deliver babies. The women are now pregnant and their obstetricians no longer can deliver babies because they may be a high risk delivery and they can no longer afford to provide that type of a service. The broad coalition that has come forward to urge meaningful reform highlights that this problem affects a number of industries, not only our health care system. Starting the Senate debate with our strongest proposal is critical because we must not approve a weak bill that the President will not be able to sign into law. Doing something weak as a Band-Aid would actually make things worse, and that is why we need very strong legislation. Opponents of this legislation ask how I know this approach works. It works because this legislation is modeled after the highly successful legislation that passed and has been in place for over 20 years in California. It is known as MICRA. MICRA has brought about real reform to California's liability system. The number of frivolous lawsuits going to trial has declined dramatically. Injured patients receive a larger share of their rewards because of the limits on the fees that go to the trial attorneys. Disciplinary actions against incompetent health care providers have increased. The bottom line is that California's medical liability system works. This is a quote by one of our colleagues from the other side of the aisle, Senator Dianne Feinstein, January 14, 2003: With the California law, we have a time-tested solution. California passed MICRA in 1975, so we have our 27 years of successful experience with the law. One important point, neither MICRA nor my legislation limits the amount of economic damages that an injured patient can recover. As in every other profession, mistakes are made by health care providers. I practiced veterinary medicine after graduating from Colorado State University. I saw firsthand that mistakes are made. Medicine is an art and a science, and there is a human being practicing that very inexact science. Every day somewhere mistakes are made. They are unfortunate. We should do everything we can to limit those mistakes, but we know mistakes will be made. Sometimes they are mistakes in judgment. When one looks back in hindsight, they can see how they could have made that decision differently. But when they are faced with it at the time, because the human body does not read the textbook--this is how the disease is supposed to progress, this is how the injury is supposed to progress-- the human body does not read that. So sometimes it reacts differently to the way the physician was trained, and so what looks like a mistake in a court of law could have actually been a very difficult judgment call. Yet a lot of these are frivolous lawsuits that are going to trial. In our legislation, we are trying to bring some balance back to the system. We do limit the amount of noneconomic damages, pain and suffering as it is most often referred. People say, how can that be limited? How can losing a leg be limited or how can a dollar figure be put on that? Well, a dollar figure can never be put on it. No amount could ever be justified to somebody for some of the things that happen to them, but we have to look at the overall good of our system. With the system we have now, we are losing doctors, and we are losing the kind of patient care we need. How does one put a dollar figure on the doctor not being there, on the health care provider not being there, on the hospital closing, on the trauma center closing? We had a press conference several months ago in Washington with a woman whose father was in Las Vegas visiting, and it happened to be the week that our trauma center closed. During that week, unfortunately, he needed our trauma center. I cannot tell my colleagues that he would have lived if it was open, but the reason trauma centers exist is because they provide intense expertise in the area of trauma. They have great results, much better than normal emergency rooms. Unfortunately for this family, that trauma center was closed. By the way, the only way we were able to reopen the trauma center in Las Vegas was because the State stepped in and said that we are going to limit not to $250,000, but we are going to limit to $50,000 any injuries and malpractice that occurs. That is not just noneconomic, that is even economic damages. That is the only way that the trauma center in Las Vegas was able to open. We are losing all kinds of experts in emergency rooms in other areas in Las Vegas as well. People talk about decreasing the amount of mistakes by physicians, and we need to do that. It is very difficult and very complex to do. One of the ways we can do that is to enact legislation to encourage voluntary reporting. The current system actually is a protectionist- type system that if somebody voluntarily reports mistakes, they set themselves up for lawsuits. So we have no way to follow where the mistakes are being made and to point out trends so we can correct those mistakes. The House has passed patient safety legislation. We are going to be working on that in the HELP Committee, of which I am a member. I hope, in a bipartisan fashion, we can craft patient safety legislation that will make the outcomes more of what we all want to see. That means fewer mistakes. But understand that there is no way to have a mistake- free environment in such an area where the science is so inexact. We have an opportunity here. We have an opportunity with so many States now in crisis. The States in red on the chart are in crisis; the States in yellow show serious problem signs. We have a chance in the Senate--the House of Representatives has already enacted this legislation--to make a real difference in patients' lives. We can make sure trauma centers do not close. We can make sure when a woman needs access to an obstetrician she can have that access. A friend of mine has Parkinson's disease, lives in Las Vegas, and has to go to Loma Linda where his specialist treats him. We do not have that particular field of subspecialty in southern Nevada. He talked his physician into coming to Las Vegas before the crisis hit Nevada. When the crisis hit and we lost our major carrier of medical liability insurance, the rates literally doubled and tripled overnight, and that physician decided to stay in California. Why? Because they have enacted a law that has kept rates reasonably low. My next chart shows differences in larger cities around the country. First, OB/GYN in Los Angeles, a well-to-do area that has enacted medical liability reform, $54,000 on average for an OB/GYN; in Denver, also where they have had enacted legislation, $30,000. Then we have New York, Las Vegas, Chicago, with Miami the worst. These are places that do not have medical liability reform. In Miami, rates are over $200,000 on average for an OB/GYN. People say doctors make plenty of money. Have you talked to an OB/GYN lately about their average income? In Las Vegas, the average income is around $200,000 for an OB/GYN who goes through 8 years of undergraduate and medical school and then a 5-year residency. They come out $250,000 to $300,000 in debt minimum and they work about 100 to 110 hours a week to make $200,000. And their rates now in Las Vegas are around $130,000 to $140,000, up from a couple of years ago around $40,000 or $50,000 a year. Because of managed care they are not able to increase their rates, so it comes out of their pockets. That is why a lot of them are leaving our State. That is why a lot of new people are not going into the practice of obstetrics and gynecology. Especially for delivery of high-risk patients, rates have skyrocketed. Many physicians simply will not treat high-risk patients. What are the women to do with a high-risk pregnancy? More and more women today are choosing to have babies later and later in life, and more and more of them have high-risk pregnancies as a result. With fewer and fewer doctors able to deliver high-risk pregnancies, this does not add up. That is why it is so critical to enact this legislation before the Senate today. I know where the politics lie. We will probably not be able to pass this legislation at this point. However, I want people to take a hard look, talk to the patients in your States, find out what is really happening at the grassroots level. This is not a question of how much money a physician makes. This is not a question of whether hospitals or insurance companies are going to be profitable. This is a question of whether when somebody needs the health care services to save lives or deliver babies, that health care will be there because the provider is there. I am passionate about this issue because people are in jeopardy of not getting the kinds of lifesaving services they need, the types of services that improve the quality of life for so many Americans. That is why this legislation is so critical today. As we go forward over the next 24 hours debating this bill, I encourage Members to have a healthy debate with an up-or-down vote and start hearing from the American people on this issue. If Senators listen to their constituents, they will hear loudly and clearly we need to reform our medical liability system so we can afford to have health care that is so desperately needed. I yield the floor.