Those Who Cannot Afford The Increase Are Forced To Assume Significant Personal Liability Or Leave The Profession Altogether

Mr. Chairman, thank you for holding this hearing to assess the issue of medical liability. Although this hearing has been broadly cast to cover a wide range of interests that extend beyond doctors and patients, it is an appropriate opportunity to address the rising cost of malpractice insurance, which is a very real problem for doctors and patients alike.

These high insurance rates are leaving doctors with few options. Those who can afford to pay the increased cost of providing medical services, will. Those who cannot afford the increase are forced to assume significant personal liability, leave high-risk specialties, or leave the profession altogether. At best, health care will become more expensive for patients. At worst, in addition to higher prices, patients will be denied access to care, and lifesaving treatments will not be provided.

This is a serious problem that deserves deliberate consideration. Unfortunately, legislation pending before this committee, H.R. 5, focuses on drastic reforms of the judicial system that extend well beyond the issue of medical malpractice. While inefficiencies in our courts may be a contributing factor to this crisis, it is by no means the only cause -- or even the single largest cause -- of the current crisis.

As the subject of this hearing appropriately indicates, the protections of H.R. 5 extend well beyond the doctor-patient relationship. The provisions contained in this bill will shield HMOs, insurance companies, and drug and device manufacturers from liability. No evidence has been presented to the Committee demonstrating that these privileged industries need additional protections, yet H.R. 5 grants them a special status under the law that is unprecedented.

Moreover, these dramatic protections hurt the rights of injured patients in an equally unprecedented manner. There is a human cost to this legislation that we must not forget. We will hear from a courageous and impressive young woman today, Heather Lewinsky. She will explain how her life has been affected by the malpractice of a plastic surgeon. The pain, suffering, fear, and trauma that Heather has courageously confronted are real, and she should be compensated. And the loss of seventeen year old Jésica Santillán must be devastating to her family. If malpractice is to blame for young Jésica’s passing, as it certainly appears, her family should be compensated for their loss. Neither Heather nor the Santillán family would qualify for significant economic damages. The harm caused to both is almost exclusively non-economic in nature, but it unquestionably is still great harm.

While claiming to provide unlimited economic damages, H.R. 5 would disproportionately hurt women, seniors, and low-income families by limiting non-economic damages to $250,000. Because a significant component of economic damages is an individual’s income, such a system would disproportionately value the lives of those with high incomes over low-wage earners, stay-at-home moms, and senior citizens. For example, if the CEO’s of the very drug companies and HMO’s that this bill protects were injured, their economic damages would be worth millions upon millions of dollars. By comparison, if a stay-at-home mom were injured in an identical manner, she would have very limited economic damages awarded to her.

H.R. 5 also limits the amount of time in which an injured patient can seek just compensation to three years from the date an injury manifests itself. The concept of manifestation is not established in law nor is it clearly defined in the legislation. There are certainly circumstances when an injury could manifest itself without a patient knowing of its existence for three or more years. An illness such as HIV could manifest itself and not be discovered -- nor expected to be discovered -- by a patient for many years. This legislation would prevent that patient, and many others, from being compensated at all.

Unfortunately, my Majority colleagues are quite determined to move quickly and harshly. Their legislation reaches well beyond malpractice and offers no guarantees of assistance to providers and communities. Physicians and patients are asked to cross their fingers and hope that some of the benefits given to insurance companies and large corporations will trickle down to them. And women, seniors, and low-income families are left to pay the very real price of these benefits. It is wrong.

But the rising cost of malpractice insurance is a real problem -- requiring careful, balanced, and targeted legislation. I am in the process of finalizing legislation that will provide direct, targeted assistance to physicians and communities to assist with the current crisis. It will also institute limited, common sense tort reforms to weed out frivolous lawsuits and provide stability in our courts while protecting the fundamental rights of patients. Lastly, the legislation I will propose would create an independent commission to examine every aspect of the current insurance crisis, propose additional solutions to address the current crisis, and make recommendations to avoid any future malpractice insurance crisis. I hope that at some point in the process a balanced approach such as this will prevail, but I’m not holding my breath.