Craig Thomas

Mr. THOMAS

Mr. THOMAS. And States rights.

Mr. THOMAS. I am a little puzzled. May I ask a question?

Mr. THOMAS. We are not talking about poor practice. We are talking about providing services where there is none, Senator. Furthermore, and then I conclude here, I think if the Senator wants to read it fairly, it says ``* * * may not find that such professional or provider committed malpractice and may not assess * * *.'' That is all one sentence. The Senator divided that. I understand you do not agree. You do not want malpractice insurance. I understand you do not want to change the legal system, Senator, but I do. These are the reasons, and I think very legitimate ones. Mr. President, I yield the floor. Mr. KENNEDY addressed the Chair.

Mr. THOMAS. There is a definition, as the Senator well knows. I will cite it for him if he would like; section 330 (b)(3), or 130-27 of the Public Health Service Act, which defines underserved areas.

Mr. THOMAS. Let me suggest a couple of things. First of all, the whole world is not in boxes. There are differences in terms of the availability of services, and we are seeking to deal with that. Second, it does not immunize, and I already have spoken to that. It simply raises that level of evidence. In fact, it says in the amendment, the Senator I am sure read that, it may not assess damages against such professional unless malpractice is proven by clear and convincing evidence. So it certainly does not immunize it. Let me say, further, as I said before, the Senator talked about the previous consideration, and it was part of Representative Cooper--we worked, as the Senator knows, and the Senator worked very hard last year in health care. These things were not out of the blue. It was in Mr. Cooper's bill and in the Rowland-Bilirakis bill. It was in Bob Dole's bill. It is not a new idea, and indeed has been discussed at great length.

Mr. THOMAS. It applies only to people, to physicians and providers who have--they are either on call or they are part of a group. In that case we would have expected them to participate in the previous information regarding this patient. So this applies only when we go to this physician not having been involved with them previous to that. So, basically, yes, it does limit it only to that circumstance where this delivery. That is our intention, Senator. If that is not the case, we would like to make it clear.

Mr. THOMAS. No, I think the Senator is not correct. It simply raises the standard of evidence to the immediate level. It does not immunize if there is malpractice here, if liability is here. The difference and the purpose here is that this physician who delivers this baby has not been a physician that has been in the case for prenatal care and, therefore, is given, under this amendment, simply a clear and convincing standard as opposed to the preponderance of evidence. I think the Senator is not correct.

Mr. THOMAS. Happy to.

Mr. THOMAS. Mr. President, this is an amendment to the amendment of the Senator from Kentucky which addresses, overall, malpractice liability. This has to do with specific problems that arise in rural areas. It seems to me that rural area families across America deserve access to quality health care, and that is a problem we deal with from time to time. We need to search for solutions that reduce infant mortality rates, provide comprehensive prenatal care and yet allow for us to stand ready to serve in times of emergency. The rural obstetric care amendment is part of that solution. This amendment to rural obstetric care compliments the effort of the Senator from Kentucky. It addresses a specific problem in rural areas, recruiting and retaining obstetric providers. It helps women obtain quality prenatal care and assists rural communities in developing a reliable and successful health care delivery system. Some of these liability problems are unique to rural areas, such as limited access, of course, to patient medical care and the history of these patients through a period of time. Some areas in my State have little or no opportunities for prenatal care. The long distance of driving exists. I think, particularly, of one good-sized town of Rawlins, WY, in which, quite often, expecting mothers do the prenatal care in Rock Springs or in Laramie, WY, both of which are more than 100 miles away; and, quite often, they need emergency care in Rawlins when the delivery time comes, and they find themselves going basically what we are really talking about here. Because of these distances and because of the unique rural problems, there is a dropout rate in delivery. So that providers delivering a baby often are providers that have not had an opportunity to see the mother prior to the treatment. Shortage of practitioners in obstetrics, to a large extent, is due to high insurance premiums. So this amendment simply raises the evidentiary standards to clear and convincing for health care services provided during labor or delivery of a baby. It only applies to health care professionals who did not previously treat the individual. It does not apply to providers who are on call or filling in for colleagues who are expected to have that information. So it is a rather simple amendment that provides for this movement to a higher level of evidentiary standard. There are, of course, a number of questions that could be asked that are somewhat mythical, I think. For instance, does this exempt certain groups of providers? It does not. The usual standard--the preponderance of evidence--remains in place for the doctor's own patient. Two is that it imposes an unusually high burden of proof. That is also not true. The clear and convincing standard is only slightly higher than the standard preponderance of the evidence and is significantly less than the standard of beyond a reasonable doubt. Some ask, does it eliminate the right to trial? It does not. Women are still permitted to sue the provider. And if negligence is found, the woman recovers full damages. Does it discriminate against women? Wrong. Women in rural areas would benefit. The intent of the amendment is to encourage health care professionals to continue providing obstetrics to women who may not have a physician or who are unable to get to their physician. Let me quote from Phyllis Greenberg, executive director of the Society for the Advancement of Women's Rural Health Research: Unintended adverse reactions in a few should not create a threat of liability so great as to disadvantage the many who benefit. Part of the benefit of the amendment would be to have an impact and to reduce malpractice premiums for obstetric providers in rural areas. Let me share a little bit of the problem that we have in some rural areas. Let me compare the premium rates in Wyoming for health care providers: $42,275 a year for OB/GYN specialists, compared to $9,800 for pediatricians, $9,700 for internal medicine, $27,000 for general surgery, $17,000 for emergency physicians, $10,000 for general practitioners without OB/GYN services coverage. On the other hand, $26,000 for general practitioners who have OB/GYN. We can see clearly that practitioners in small towns that have relatively few opportunities for obstetric services simply do not do it unless it is an emergency and because of the cost. Further comparing Wyoming's $42,000 average malpractice premium for OB/GYN among the Rocky Mountain States, $22,000 in Idaho, $23,000 in Utah, $25,000 in Montana. So we have a problem and one that I think could be relatively easily mitigated here. It complements State obstetric liability laws; 25 States have statutes on the book recognizing the need to provide relief for obstetric providers, full-fledged immunities for drop-in delivery cases. We think, also, that it would help recruit and retain obstetric providers. In rural areas of 105 family practitioners, in Wyoming only 27 provide obstetric services. For specialists, there are only 25 OB/ GYN providers in the State delivering babies. That is 52 physicians trained in obstetrics to cover 90,000 square miles. In the city of Sheridan there are only two providers. We used to have eight. One current provider watched his premium rise from $4,000 a year in 1978 to $35,000 a year in 1995. There is some background for this proposal, and this amendment was included in Jim Cooper's Managed Competition Act last year and the Rowland-Bilirakis Consensus Act of last year. Bob Michel's Affordable Health Care, a new act, included provisions of this kind. Majority leader Bob Dole's alternative health reform proposal includes this as well. So, Mr. President, this amendment to the bill of the Senator from Kentucky helps women and families across rural America obtain quality care. It helps rural communities fend off physician shortages, plaguing health care service delivery systems. It lowers health care costs, so consumers may pay the true cost of medical service instead of that cost inflated by malpractice premiums, and it complements overall malpractice reform. I yield the floor.

Mr. THOMAS. And the Federal Government ought to provide it?

Mr. THOMAS. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. THOMAS. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. THOMAS. I will answer the question. I ask if the Senator always agrees with the Energy Committee if they drop something?

Mr. THOMAS. First of all, the Senator from Massachussetts talked about the committee, that that which was proposed was dropped at the staff level. It is supported by the chairman. No. 2, the Senator has gone on. I watched. Here is the Senator's States rights business from last year. Do not tell me that you are for States rights. Look at this. Here is your health care package. Tell me there is States rights in that.

Mr. THOMAS. I will. I have explained. I shall explain one more time. This comes from experience in our own State, Senator. We worked with this sometimes. We have difficulties in find a way to provide services, in my case, for areas that are basically rural. I am here to defend my constituency, as you are. We have problems and they are unique problems, and I think this is an approach to do that. That is what I am seeking to do. Mr. KENNEDY addressed the Chair.

Mr. THOMAS. May I ask a question?

Mr. THOMAS. Will you explain to me why you were the major proponent of Federal health care last year?

Mr. THOMAS. I have tried to explain the answers. No. 1--let me go on just a little bit further. If the Senator would feel more comfortable, we will be happy to put in ``* * * as defined by the Public Health Service.'' So it would be, indeed, rural areas.

Mr. THOMAS. I think the justification is to provide delivery services for mothers in a community where there would not be services otherwise. For instance, a general practitioner who might normally deliver babies, because of the cost of malpractice insurance simply does not do that. So the expectant mother has, through the pregnancy, gone to Laramie, 150 miles away. But then comes an emergency. What we are doing is we are saying to this physician, although the physician does not do this as a normal thing, who is not able to pay this extraordinary amount of money, that we will provide some sort of a higher standard here because the physician is doing this not as a regular practice but as an emergency treatment process. It is not designed to have anyone with less competency. It is not designed to do that, but to encourage services where there are none.

Mr. THOMAS. We do not read it the same.

Mr. THOMAS. You are--you are misreading.

Mr. THOMAS. Yes, I already went through that. I told you we went through that last year in several places. If the Senator will support this, we would be happy to put in, in our second one here, that is only under the definition by the Public Health Service of rural areas. I am sure that is not the case. I am sure the Senator is not talking about my amendment. He and I have quite a different view of what we ought to do on malpractice, and I understand that.

Mr. THOMAS. If the Senator will yield, it was my understanding you were going to ask questions and not----

Mr. THOMAS. I suspect so. It defines rural areas.

Mr. THOMAS

Mr. THOMAS. Mr. President, I find myself in the unfortunate position of once more coming to the floor to briefly discuss the lack of progress being made in the implementation of the United States-North Korea Agreed Nuclear Framework. During the recent recess, talks in Berlin between us and the North Koreans broke down. The point of contention continues to be the DPRK's obstinate refusal to accept two light-water reactors of South Korea manufacture as called for in the agreement. Mr. President I--and, I am sure, our negotiators headed by Ambassador Galucci--have grown weary of the North's negotiating tactics. Last-minute brinkmanship has failed to work for them in the past; I am unsure why they think if they continue to pursue that course we will eventually relent. Korean's have a saying about the futility of trying to influence someone too stubborn to listen: ``reading into an ox's ear.'' At the risk of reading into the ``Pyongyang ox's'' ear, let me say it one more time. As I have said before as the chairman of the Subcommittee on East Asian and Pacific Affairs, we should not accept any deviation from the agreed framework on the part of the DPRK. As called for in the agreement, North Korea must accept the two light-water reactors from South Korea. It must not refire its Yongbyon reactor. It must cease its attempts to produce fissile material. It must take steps toward initiating and maintaining a bilateral relationship with the South. The consequence for their failure to live up to the agreement is very straight-forward: a return to the Security Council and the imposition of tough sanctions. Mr. President, this is their choice--in black and white. There is no subtlety, no innuendo, no hidden message. Our negotiators have done an admirable job in continuing to press the North Koreans; I urge them to stick to their guns.