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+
+ - MEDICAL LIABILITY REFORM: CUTTING COSTS, SPURRING INVESTMENT, CREATING JOBS
+
+[House Hearing, 112 Congress]
+[From the U.S. Government Publishing Office]
+
+
+
+
+MEDICAL LIABILITY REFORM: CUTTING COSTS, SPURRING INVESTMENT, CREATING
+ JOBS
+
+=======================================================================
+
+
+ HEARING
+
+ BEFORE THE
+
+ COMMITTEE ON THE JUDICIARY
+ HOUSE OF REPRESENTATIVES
+
+ ONE HUNDRED TWELFTH CONGRESS
+
+ FIRST SESSION
+
+ __________
+
+ JANUARY 20, 2011
+
+ __________
+
+ Serial No. 112-1
+
+ __________
+
+ Printed for the use of the Committee on the Judiciary
+
+
+ Available via the World Wide Web: http://judiciary.house.gov
+
+
+
+ U.S. GOVERNMENT PRINTING OFFICE
+63-871 WASHINGTON : 2011
+-----------------------------------------------------------------------
+For sale by the Superintendent of Documents, U.S. Government Printing
+Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
+area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
+20402-0001
+
+
+
+
+
+ COMMITTEE ON THE JUDICIARY
+
+ LAMAR SMITH, Texas, Chairman
+F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
+ Wisconsin HOWARD L. BERMAN, California
+HOWARD COBLE, North Carolina JERROLD NADLER, New York
+ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
+BOB GOODLATTE, Virginia Virginia
+DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
+STEVE CHABOT, Ohio ZOE LOFGREN, California
+DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
+MIKE PENCE, Indiana MAXINE WATERS, California
+J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
+STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
+TRENT FRANKS, Arizona Georgia
+LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
+JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
+TED POE, Texas JUDY CHU, California
+JASON CHAFFETZ, Utah TED DEUTCH, Florida
+TOM REED, New York LINDA T. SANCHEZ, California
+TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
+TOM MARINO, Pennsylvania
+TREY GOWDY, South Carolina
+DENNIS ROSS, Florida
+SANDY ADAMS, Florida
+BEN QUAYLE, Arizona
+
+ Sean McLaughlin, Majority Chief of Staff and General Counsel
+ Perry Apelbaum, Minority Staff Director and Chief Counsel
+ C O N T E N T S
+
+ ----------
+
+ JANUARY 20, 2011
+
+ Page
+
+ OPENING STATEMENTS
+
+The Honorable Lamar Smith, a Representative in Congress from the
+ State of Texas, and Chairman, Committee on the Judiciary....... 1
+The Honorable John Conyers, Jr., a Representative in Congress
+ from the State of Michigan, and Ranking Member, Committee on
+ the Judiciary.................................................. 6
+The Honorable Trent Franks, a Representative in Congress from the
+ State of Arizona, and Member, Committee on the Judiciary....... 8
+The Honorable Jerrold Nadler, a Representative in Congress from
+ the State of New York, and Member, Committee on the Judiciary.. 9
+
+ WITNESSES
+
+Ardis D. Hoven, M.D., Chair, Board of Trustees, American Medical
+ Association
+ Oral Testimony................................................. 11
+ Prepared Statement............................................. 13
+Joanne Doroshow, M.D., Executive Director, Center for Justice and
+ Democracy
+ Oral Testimony................................................. 19
+ Prepared Statement............................................. 21
+Stuart L. Weinstein, M.D., Health Coalition on Liability and
+ Access
+ Oral Testimony................................................. 50
+ Prepared Statement............................................. 52
+
+ LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
+
+Prepared Statement of the Honorable Lamar Smith, a Representative
+ in Congress from the State of Texas, and Chairman, Committee on
+ the Judiciary.................................................. 3
+
+ APPENDIX
+ Material Submitted for the Hearing Record
+
+Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
+ Jr., a Representative in Congress from the State of Georgia,
+ and Member, Committee on the Judiciary......................... 103
+Prepared Statement of the Honorable Linda T. Sanchez, a
+ Representative in Congress from the State of California, and
+ Member, Committee on the Judiciary............................. 106
+Prepared Statement of the American Congress of Obstetricians and
+ Gynecologists (ACOG)........................................... 108
+Prepared Statement of the American College of Surgeons........... 114
+Study of the American Enterprise Institute (AEI)................. 117
+Prepared Statement of Lawrence E. Smarr, President/CEO, Physician
+ Insurers Association of America................................ 125
+
+
+ MEDICAL LIABILITY REFORM:
+
+
+ CUTTING COSTS, SPURRING INVESTMENT,
+
+
+
+ CREATING JOBS
+
+ ----------
+
+
+ THURSDAY, JANUARY 20, 2011
+
+ House of Representatives,
+ Committee on the Judiciary,
+ Washington, DC.
+
+ The Committee met, pursuant to notice, at 10:30 a.m., in
+room 2141, Rayburn House Office Building, the Honorable Lamar
+Smith (Chairman of the Committee) presiding.
+ Present: Representatives Smith, Sensenbrenner, Coble,
+Gallegly, Goodlatte, Lungren, Chabot, Forbes, King, Franks,
+Gohmert, Poe, Chaffetz, Reed, Griffin, Marino, Gowdy, Ross,
+Adams, Quayle, Conyers, Nadler, Scott, Watt, Jackson Lee,
+Waters, Johnson, Pierluisi, Quigley, Deutch, Sanchez, and
+Wasserman Schultz.
+ Staff Present: (Majority) Allison Halataei, Counsel; Paul
+Taylor, Counsel; and Perry Apelbaum, Minority Staff Director
+and Chief Counsel.
+ Mr. Smith. The Judiciary Committee will come to order.
+ Welcome everybody. I appreciate the Members who are here,
+as well as our witnesses. And it is nice to see so many people
+in the audience interested in such an important subject, as
+well.
+ One quick announcement, I think as most Members know but
+not everybody else may know, is that we are expecting votes in
+about 15 minutes. However, we are only having two votes, so we
+will be taking a recess for about 20 minutes but then we will
+return to resume the hearing.
+ I am going to recognize myself for an opening statement,
+then turn to the Ranking Member for his opening statement, as
+well.
+ The purpose of this hearing is to discuss the need to
+reduce the waste in our health-care system caused by defensive
+medicine. This practice occurs when doctors are forced by the
+threat of lawsuits to conduct tests and prescribe drugs that
+are not medically required.
+ According to a Harvard University research study, 40
+percent of medical malpractice lawsuits filed in the United
+States lack evidence of medical error or any actual patient
+injury. But because there are so many lawsuits, doctors are
+forced to conduct medical tests simply to avoid a possible
+lawsuit.
+ Taxpayers pay for this wasteful defensive medicine, which
+adds to all of our health-care costs without improving the
+quality of patient care.
+ A survey released last year found defensive medicine is
+practiced by nearly all physicians. President Obama, himself,
+acknowledged the harm caused by defensive medicine, stating,
+quote, ``I want to work to scale back the excessive defensive
+medicine that reinforces our current system and shift to a
+system where we are providing better care rather than simply
+more treatment,'' end quote.
+ Yet the health-care legislation he signed does nothing to
+prevent defensive medicine. In fact, it makes matters worse by
+allowing trial lawyers to opt out of any alternatives to
+health-care litigation proposed by the States and by exposing
+doctors to even more lawsuits if they fall short of any of the
+many new Federal guidelines the law creates. The encouragement
+of lawsuit abuse will not only make medical care much more
+expensive, it will also drive more doctors out of business.
+ The Judiciary Committee will consider alternative health-
+care lawsuit reforms modeled on California's reforms, which
+have been in effect for over 30 years. Those reforms have a
+proven record of reducing defensive medicine, reducing health-
+care costs, and increasing the supply of doctors.
+ There is a clear need for reform at the Federal level. Many
+state Supreme Courts have nullified reasonable litigation
+management provisions enacted by State legislatures. In such
+States, passage of Federal legislation by Congress may be the
+only means of addressing the State's current crisis in medical
+professional liability and restoring patients' access to
+quality health care.
+ Further Federal legislation is needed to stem the flow of
+doctors from one State to another, as they flee States to avoid
+excessive liability cost. Doctors should feel free to practice
+medicine wherever they want, and patients everywhere should be
+able to obtain the medical care they need.
+ Last year, the Congressional Budget Office determined that
+a legal reform package would reduce the Federal budget deficit
+by an estimated $54 billion over the next 10 years, and that
+was a conservative estimate. Another CBO report estimates that
+premiums for medical malpractice insurance ultimately would be
+an average of 25 percent to 30 percent below what they would be
+under current law.
+ The Government Accountability Office has found that rising
+litigation awards are responsible for skyrocketing medical
+professional liability premiums. Its report states that the GAO
+found that ``losses on medical malpractice claims, which make
+up the largest part of insurers' cost, appear to be the primary
+driver of rate increases in the long run,'' end quote. The GAO
+also concluded that insurer profits, ``are not increasing,
+indicating that insurers are not charging and profiting from
+excessively high premium rates.''
+ The National Commission on Fiscal Responsibility and
+Reform, which was created by President Obama, also supports
+health-care litigation reform in its 2010 report. ``Many
+members of the Commission also believe that we should impose
+statutory caps on punitive and noneconomic damages, and we
+recommend that Congress consider this approach and evaluate its
+impact.''
+ As a USA Today editorial concluded, one glaring omission
+from the health-care law was the significant tort reform, which
+was opposed by trial lawyers.
+ I look forward to hearing from our witnesses today, who
+will help us assess the extent of the current health-care
+litigation cost.
+ And I am now pleased to welcome the remarks of the Ranking
+Member, Congressman John Conyers.
+ [The prepared statement of Mr. Smith follows:]
+
+
+
+
+
+
+
+
+ __________
+
+ Mr. Conyers. Thank you, Chairman Smith and Members.
+ This is our first hearing in the 112th session. And I would
+like to just add for your consideration my recommendations that
+we review, in connection with health care, the antitrust
+exemption that health insurance companies enjoy, the McCarran-
+Ferguson exemption, and that the Sunshine Litigation Act that
+ensures and prevents secret settlements from being used to
+endanger the public safety or shield those who may be guilty of
+fraudulent acts, including the medical community, that, in
+turn, would protect all patients and protect professionally
+responsible doctors from abuse of claims of wrongdoing.
+ And then you remember the act that me and a former Member,
+Campbell, introduced that empowers doctors to negotiate an even
+playing field with health insurers.
+ So I would like us to kindly consider those measures that
+might be more important than an oversight hearing on a subject
+matter that Members of Congress have already announced that
+they are going to introduce, namely H.R. 5, which I expect will
+be coming down the pike one day next week. The letters are
+already circulating on it.
+ And so I find that an oversight hearing for a bill that is
+being written to be the subject will come straight to our
+Committee. It isn't exactly reverse, but there is a certain
+irony in the way this is coming off today, and I just wanted to
+put it in the record.
+ Now, legislative hearings should be held prior to the
+oversight hearings. But, also, I hope that we can get into the
+issue of the shortage of doctors in rural areas, which is
+critical and which many of us view would be increased by a cap
+on medical liability, this $250,000 cap. Most of our witnesses
+here today realize that that may have a perverse effect before
+it is all over with.
+ Now, about the large number of cases filed, one out of
+every eight cases filed ever results in a lawsuit. And that is
+because, with the statute of limitations, attorneys have to
+include in the filings many people who may not be involved and
+are usually excluded from any trial liability but they get
+counted as the ones that are sued. So I am looking forward to a
+discussion about that.
+ Now, we have States that constitutionally preclude any
+limitation on Medicare damages. Kentucky and Iowa limit the
+damages. Dr. Hoven is from Kentucky; Dr. Weinstein is from
+Iowa. And Kentucky is one of the four States that
+constitutionally prohibit limits on damages. But there are
+other States--Arizona, Pennsylvania, Wyoming, including the
+trauma center that provided such excellent care to our
+colleague, Gabby Giffords, are all, I think, under some danger
+presented by some of the trends that we are expecting in H.R.
+5. And I think that is something we ought to consider.
+ I close with just a comment about the real cost of medical
+malpractice claims. They are only a fraction of the real cost.
+And I end on this note. The sixth-largest cause of death in the
+United States of America, medically, are malpractice cases.
+ And so I hope that, as this discussion rolls out this
+morning, we will be considering what we do with the hundreds of
+thousands of people that could be adversely affected, whose
+lifetime costs--even though they are innocent and the case is
+supported by the court and judgments are entered, but with a
+$250,000 cap, as many of us know on all the hearings we have
+had prior to now, that this would be very minimal, indeed.
+ And I thank you for the time.
+ Mr. Smith. I thank the Ranking Member for his comments.
+ We are now going to take a short recess so Members may
+vote. When we return, I will recognize the Chairman and Ranking
+Member of the Constitutional Law Subcommittee for their opening
+statements. They have jurisdiction over this particular issue.
+And then we will get to our witnesses.
+ So we stand in recess until about 20 minutes from now.
+ [Recess.]
+ Mr. Smith. The Committee will resume our hearing.
+ And I will now recognize the Chairman of the Constitutional
+Law Subcommittee, the gentleman from Arizona, Mr. Franks, for
+his opening statement. And then we will go to the Ranking
+Member of the Constitutional Law Subcommittee.
+ Mr. Franks. Well, thank you, Mr. Chairman.
+ Mr. Chairman, the medical liability litigation system in
+the United States, I think, by all accounts, is broken and in
+desperate need of reform. The current system is as ineffective
+a mechanism for adjudicating medical liability claims as it can
+be, which leads to increased health-care costs, unfair and
+unequal awards for victims of medical malpractice, and reduced
+access to health care for all Americans.
+ Only reforms to the system at the Federal level can address
+the current national medical liability crisis. Unfortunately,
+the massive health-care overhaul that President Obama signed
+into law last year did not meaningfully address medical
+liability reform. Thus, we are here today to examine this
+continuing problem and evaluate national solutions to this,
+what I believe to be a crisis.
+ One of the largest drivers of this crisis is the practice
+of defensive medicine. Defensive medicine leads doctors to
+order unnecessary tests and procedures--not, Mr. Chairman, to
+ensure the health of the patient, but out of fear of
+malpractice liability.
+ The cost of defensive medicine is, indeed, staggering.
+According to a 2003 Department of Health and Human Services
+report, the cost of defensive medicine is estimated to be more
+than $70 billion annually. Additionally, medical liability
+litigation increases the cost of health care by escalating
+medical liability insurance premiums. This, in turn, of course,
+leads to higher costs throughout the entire health-care system
+and reduces access to medical services.
+ However, Mr. Chairman, despite the increased costs medical
+liability litigation imposes, this litigation fails to
+accomplish its ostensible purpose, the goals of tort law in the
+first place, and that is fairly compensating the victims and
+deterring future negligence.
+ The system fails to compensate victims fairly for several
+reasons. First, according to the studies, the vast majority of
+incidents of medical negligence do not result in a claim, and
+most medical practice claims exhibit no evidence of
+malpractice. So, victims of malpractice, or most of them, go
+uncompensated, and most of those who are compensated are not
+truly victims.
+ Mr. Chairman, medical malpractice awards vary greatly from
+case to case, even where the claims and injuries are virtually
+identical. And, finally, attorneys regularly reduce damages
+awarded to victims by more than 40 percent through fees and
+costs.
+ Moreover, there appears to be little evidence to suggest
+that the current medical liability system deters negligence.
+Rather, the available evidence seems to suggest that the threat
+of litigation causes doctors not to reveal medical errors and
+to practice defensive medicine. And this, of course, subjects
+patients to unnecessary tests and treatments once again.
+ So we must reform the medical liability system in the
+United States, Mr. Chairman. Among other benefits, reform could
+do some of the following. It could lead to a significant
+savings on health care; it could reduce the practice of
+defensive medicine; halt the exodus of doctors from high-
+litigation States and medical specialties; improve access to
+health care; and save the American taxpayers billions of
+dollars annually while increasing the affordability of health
+insurance.
+ Mr. Chairman, meaningful medical liability reforms have
+worked in States such as California and Texas, and it is time
+for action at the Federal level to extend the benefits of
+reform to all Americans.
+ And I thank you for the time and yield back.
+ Mr. Smith. Thank you, Mr. Franks.
+ The gentleman from New York, Mr. Nadler, the Ranking Member
+of the Constitutional Law Subcommittee, is recognized for his
+opening statement.
+ Mr. Nadler. Thank you, Mr. Chairman.
+ Mr. Chairman, I had not prepared an opening statement
+because I didn't know that we were going to have opening
+statements for Rankings and the Chairmen of the Subcommittees,
+but I will make an opening statement nonetheless.
+ I have always believed that this problem is the wrong
+problem and it is a solution in search of a problem.
+ If you look at the evidence over many years--and I have
+looked at the evidence in 1986 consideration of reforms to this
+problem in the New York State assembly when I was a member
+there, so I have been involved with this off and on for 25
+years--you find that the real problem is not the excessive cost
+of malpractice--or that the excessive cost of malpractice
+insurance is not caused by lack of the so-called tort reforms
+that are being advanced here and that have been advanced over
+the years--namely, making it harder to get attorneys, capping
+fees, or capping recoveries--that capping these recoveries
+would simply be unfair to people who are very seriously
+injured.
+ First of all, we know that most people who suffer real
+damage as a result of medical negligence never sue. So the
+amount of recovery is very small compared to the amount of
+cost.
+ Secondly, study after study has found that the real problem
+is that the States--and some people might say the Federal
+Government should do it, but that is a separate discussion--but
+the States, in any event, whose job it is under current law,
+are not disciplining doctors, that something like 90 or 95
+percent of the claims dollars that are awarded come from 2 or 3
+percent of the doctors. Those 2 or 3 percent of the doctors are
+hurting patients, killing patients, and should not be
+practicing medicine. They should be stripped out of practice.
+And if they did, everybody else's malpractice premiums would go
+down because the amount of costs would go way down, and the
+other 97 or 98 percent of doctors would find their malpractice
+premiums much reduced.
+ Now, what do we find from the kinds of proposals that we
+consider? Number one, in May 2009, WellPoint, a major
+malpractice insurer, said that liability was not driving up
+health insurance premiums.
+ An economist at Harvard University, Amitabh Chandra, in an
+article, ``Malpractice Lawsuits are 'Red Herring' in Obama
+Plan,'' published by Bloomberg in June of last year, concluded
+that, quote, ``Medical malpractice dollars are a red herring''
+for the system's failures. ``No serious economist thinks that
+saving money in med mal is the way to improve productivity in
+the system. There are so many other sources of inefficiency.''
+ We know that preventable medical errors kill as many as
+98,000 Americans each year, at a cost of $29 billion, and these
+proposals would do nothing about that.
+ We are told that the defensive medicine is costing us huge
+amounts of money and increasing the cost of the medical system
+as a whole. And yet the GAO, the Government Accountability
+Office, issued a statement saying, quote, ``The overall
+prevalence and costs of [defensive medicine] Have not been
+reliably measured,'' so we don't really know. ``Studies
+designed to measure physicians' defensive medicine practices
+examined physician behavior in specific clinical situations,
+such as treating elderly Medicare patients with certain heart
+conditions. Given their limited scope, the study results cannot
+be generalized to estimate the extent and cost of defensive
+medicine practices across the health-care system,'' unquote.
+ Multiple GAO studies have concluded that eliminating
+defensive medicine would have only a minimal effect on reducing
+overall health-care costs.
+ But the proposals that I assume we will have before us,
+which are the proposals that are introduced by our colleagues
+on the other side of the aisle every single year, all have in
+common putting a $250,000 limit on noneconomic damages--that is
+to say, on damages other than direct medical costs and lost
+wages, which may be the main damages for someone whose wages
+you can't measure, like a college student or a child because
+you don't know what his wages are going to be or would have
+been.
+ But $250,000 is not very much. Now, MICRA in California was
+enacted in 1976, and they felt that $250,000 was a reasonable
+amount then. In today's dollars--or, rather, in 1975 dollars,
+that is now worth $62,000. Would they have enacted a $62,000
+cap in 1975? And if we wanted to take their $250,000 and
+inflate it to keep it at the same value, it would be over a
+million dollars today. So if we are going to pass this kind of
+legislation, which I hope we won't, at the least we should put
+in an inflation factor and start at a million dollars if we
+want to duplicate what MICRA did in California.
+ And, of course, in California, MICRA did not reduce the
+premiums at all. They went up, from 1975 to 1988, by 450
+percent. Only after insurance reform was enacted in 1988 by
+California did the insurance premiums level off and actually go
+down a bit. For the 13 years--a perfect experiment--for the 13
+years during which California had the tort reform but not the
+insurance reform, the premiums went up 450 percent. When the
+insurance reform was enacted, premiums went down 8 percent. So
+maybe we should be talking about insurance reform instead of
+tort reform. But, unfortunately, that is not in front of his
+Committee.
+ So I think we are off on the wrong track if we are
+concentrating on this. And I see the red light is on. I
+apologize for exceeding my time, and I yield back whatever time
+I don't have left.
+ Mr. Smith. Thank you, Mr. Nadler.
+ And, without objection, other Members' opening statements
+will be made a part of the record. And now I will introduce our
+witnesses.
+ And our first witness is Dr. Ardis Hoven, chair of the
+American Medical Association Board of Trustees. Prior to her
+election to the board, Dr. Hoven served as a member and chair
+of the AMA Council on Medical Service. She was a member of the
+Utilization Review and Accreditation Commission for 6 years and
+served on its executive committee. Most recently, she was
+appointed to the National Advisory Council for Healthcare
+Research and Quality.
+ We welcome you.
+ Our second witness is Joanne Doroshow, executive director
+of the Center for Justice and Democracy. Ms. Doroshow is the
+founder of the Center for Justice and Democracy and cofounder
+of Americans for Insurance Reform. She is an attorney who has
+worked on issues regarding health-care lawsuits since 1986,
+when she directed an insurance industry and liability project
+for Ralph Nader.
+ Welcome to you.
+ Our third witness is Dr. Stuart L. Weinstein, a physician
+spokesman for the Health Coalition on Liability and Access. Dr.
+Weinstein is a professor of orthopedic surgery and professor of
+pediatrics at the University of Iowa. He is a former chair of
+Doctors for Medical Liability Reform.
+ And we welcome you, as well.
+ Just a reminder, each of the witnesses' testimonies will be
+made a part of the record. We do want you to limit your
+testimony to 5 minutes. And there is a light on the table that
+will indicate by its yellow light when you have 1 minute left,
+and then the red light will come on when the 5 minutes is up.
+ So we look forward to your testimony, and we will begin
+with Dr. Hoven.
+
+ TESTIMONY OF ARDIS D. HOVEN, M.D., CHAIR, BOARD OF TRUSTEES,
+ AMERICAN MEDICAL ASSOCIATION
+
+ Dr. Hoven. Thank you, and good morning, Chairman Smith,
+Ranking Member Conyers, and Members of the Committee on the
+Judiciary. As stated, I am Dr. Ardis Hoven, chair of the
+American Medical Association Board of Trustees and a practicing
+internal medicine physician and infectious disease specialist
+in Lexington, Kentucky.
+ On behalf of the AMA, thank you for holding this hearing
+today to talk about this very important issue.
+ This morning, I will share with you results from AMA
+studies that prove how costly and how often unfair our medical
+liability system is to patients and physicians. Most
+importantly, I will talk about a solution. That solution is a
+package of medical liability reforms based on reforms that have
+already been proven effective in States like California, Texas,
+and Michigan.
+ Our current medical liability system has become an
+increasingly irrational system, driven by time-consuming
+litigation and open-ended, noneconomic damage awards that bring
+instability to the liability insurance market. It is also an
+extremely inefficient mechanism for compensating patients
+harmed by negligence, where court costs and attorney fees often
+consume a substantial amount of any compensation awarded to
+patients.
+ Let me share with you some of the alarming statistics from
+an August 2010 AMA report that shows how lawsuit-driven our
+system has become.
+ Nearly 61 percent of physicians age 55 and older have been
+sued. Before they reach the age of 40, more than 50 percent of
+obstetricians/gynecologists have already been sued. And 64
+percent of medical liability claims that closed in 2009 were
+dropped or dismissed. These claims are clearly not cost-free.
+And let's also not forget the emotional toll on physicians and
+their patients involved in drawn-out lawsuits, which is hard to
+quantify.
+ Out of fear of being sued, physicians and other health-care
+providers may take extra precautionary measures, known as ``the
+practice of defensive medicine.'' A 2003 Department of Health
+and Human Services report estimated the cost of the practice of
+defensive medicine to be between $70 billion and $126 billion
+per year. Every dollar that goes toward medical liability costs
+is a dollar that does not go to patients who need care, nor
+toward investment in physician practices, a majority of which
+are small businesses that create jobs that benefit local and
+State economies.
+ The good news is there are proven examples of long-term
+reforms that have kept physicians' liability premiums stable,
+but, more importantly, have insured and protected patients'
+access to health care.
+ Back in 1974, California was experiencing many of the
+problems we are facing today. In response, California's
+legislature enacted a comprehensive package of reforms called
+the Medical Injury Compensation Reform Act of 1975 over 35
+years ago, which is now commonly referred to as ``MICRA.''
+ While total medical liability premiums in the rest of the
+U.S. rose 945 percent between 1976 and 2009, the increase in
+California premiums was less than one-third of that at just
+about 261 percent.
+ Recent public polls found that a majority of Americans
+support reasonable limits on noneconomic damages and believe
+that medical liability lawsuits are a primary reason for rising
+health-care costs.
+ We look forward to the introduction of the HEALTH Act that
+mirrors California's reforms and also protects current and
+future medical liability reforms at the State level.
+ By supporting patients' safety initiatives alongside
+enacting meaningful medical liability reform like the HEALTH
+Act, Congress has the opportunity to protect access to medical
+services, reduce the practice of defensive medicine, improve
+the patient-physician relationship, support physician practices
+and the jobs they create, and curb a wasteful use of precious
+health-care dollars: the costs, both financial and emotional,
+of health-care liability litigation.
+ On behalf of the AMA, I would like to extend our
+appreciation for the leadership of the committee. And the AMA
+looks forward to working with you all to pass Federal
+legislation that would bring about meaningful reforms.
+ And thank you.
+ [The prepared statement of Dr. Hoven follows:]
+ Prepared Statement of Ardis D. Hoven
+
+
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+
+ __________
+ Mr. Smith. Dr. Hoven, thank you.
+ And Ms. Doroshow?
+
+TESTIMONY OF JOANNE DOROSHOW, M.D., EXECUTIVE DIRECTOR, CENTER
+ FOR JUSTICE AND DEMOCRACY
+
+ Ms. Doroshow. Thank you, Mr. Chairman, Mr. Conyers, Members
+of the Committee.
+ The Center for Justice and Democracy, of which I am
+executive director, is a national public interest organization
+that is dedicated to educating the public about the importance
+of the civil justice system. This is the fourth time I have
+been asked to testify before a congressional Committee in the
+last 9 years on this very important subject of medical
+malpractice, and I am honored to do so.
+ I also spoke at two different informal hearings, chaired by
+Mr. Conyers, which featured families, including children, from
+all over the country, whose lives were devastated as a result
+of medical negligence. One of those hearings lasted 4 hours, as
+victim after victim told their stories and pleaded with
+Congress not to cap damages and enact tort reform. They are all
+paying rapt attention today from afar, and I will do my best to
+represent them. But I do hope this Committee decides to hear
+from them directly, because these families are always the
+forgotten faces in the debate about how to reduce health-care
+and insurance costs.
+ While I understand this is an oversight hearing and we do
+not know what bills yet may be considered by the Committee,
+typically the push has been for caps on noneconomic damages and
+other measures that force patients who are injured by medical
+negligence or the families of those killed to accept inadequate
+compensation. Meanwhile, the insurance industry gets to pocket
+money that should be available for the sick and injured, and
+they force many to turn elsewhere, including Medicaid, further
+burdening taxpayers.
+ And, by the way, with regard to the California situation,
+rates did not come down in California for doctors until 1988,
+when insurance regulatory reform was passed. It was not due to
+the cap.
+ These measures will also reduce the financial incentive for
+hospitals to operate safely, which will lead to more costly
+errors. In fact, when the Congressional Budget Office looked
+into it, they looked at several studies that looked at the
+negative health outcomes of tort reform, and one of them found
+it would lead to a 0.2 percent increase in mortality and the
+overall death rate in this country. That is another 4,000
+killed.
+ Now, while I cover many issues in my written statement, I
+want to highlight a few other points.
+ First of all, there is an epidemic of medical malpractice
+in this country. It has been over a decade since the Institute
+of Medicine study finding 98,000 dying in hospitals each year,
+costing $17 billion to $29 billion, and experts agree there has
+been no meaningful reduction in medical errors in the United
+States. In fact, in November, just last November, HHS reported
+that 1 in 7 hospital patients experience a medical error; 44
+percent are preventable.
+ Second, medical malpractice claims and lawsuits are in
+steep decline, according to the National Center for State
+Courts and the insurance industry's own data. Plus, to quote
+from the Harvard School of Public Health study that the
+Chairman mentioned, ``Portraits of a medical malpractice system
+that is stricken with frivolous litigation are overblown, and
+only be a tiny percentage of med mal victims ever sue.'' In
+fact, this is the press release from Harvard, issuing that
+study, that said, ``Study casts doubt on claims that the
+medical malpractice system is plagued by frivolous lawsuits.''
+ Med mal premiums have been stable and dropping since 2006.
+And if you read the industry's trade publications, you will
+find out that insurers so overpriced policies in the early part
+of the last decade that they still have too much money in
+reserves and that rates will continue to fall. And this has
+happened whether or not a State has enacted tort reform.
+ As far as Texas, health-care costs did not come down when
+caps passed, at all. Applications for new licenses are only
+part of the picture. When it comes to physicians engaged in
+patient care--in other words, considering physicians who
+retire, leave the State, or stop seeing patients--the data
+shows that the per capita number has not grown. In fact, the
+number grew steadily through 2003 and then leveled off. This is
+not a pattern you would expect if 2003 tort reform law was
+responsible.
+ When competing for physicians, Texas is more hampered by
+the extraordinary size of its uninsured population, which
+exceeds just about every other State.
+ In terms of defensive medicine, CBO found that was not
+pervasive, 0.3 percent, from slightly less utilization of
+health-care services, but even this is too high. What CBO did
+not consider, for example, are the burdens on Medicaid when
+there are no lawsuits or the fact that Medicare and Medicaid
+have liens and subrogation interests in a judgment, so if the
+lawsuit can't be brought, they can't be reimbursed. All of
+these costs need to be added in.
+ Finally, these bills all ignore the insurance industry's
+major role in the pricing of medical malpractice insurance
+premiums, an industry that is exempt from antitrust laws under
+the McCarran-Ferguson Act. This needs to be repealed.
+ We need to do more to weed out the small number of doctors
+responsible for most malpractice and reduce claims, injuries
+and deaths, and lawsuits.
+ Thank you, Mr. Chairman.
+ [The prepared statement of Ms. Doroshow follows:]
+ Prepared Statement of Joanne Doroshow
+
+
+
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+
+ __________
+
+ Mr. Smith. Thank you, Ms. Doroshow.
+ Dr. Weinstein?
+
+ TESTIMONY OF STUART L. WEINSTEIN, M.D.,
+ HEALTH COALITION ON LIABILITY AND ACCESS
+
+ Dr. Weinstein. Thank you, Chairman Smith and Ranking Member
+Conyers, for holding this important hearing to consider fixing
+our country's broken liability system.
+ I am Stuart Weinstein. I am the Ponseti Chair and professor
+of orthopedic surgery and professor of pediatrics at the
+University of Iowa. I have been a practicing pediatric
+orthopedic surgeon for more than 35 years. I am the past
+president of the American Academy of Orthopedic Surgeons and
+the American Orthopedic Association.
+ I would like to begin today by asking each of you to put
+yourself in someone else's shoes. Imagine you are a young,
+pregnant mother living in rural America with no OB/GYN
+practitioner or your local hospital has closed its door to
+obstetrics. Or imagine you are a young doctor, saddled with
+debt, trying to pick a specialty. Despite the great need for
+OB/GYNs, neurosurgeons, trauma physicians, and general
+surgeons, you choose a safer specialty because of risk of
+lawsuit. And, finally, imagine you are an orthopedic surgeon,
+in practice for three decades, but you are facing similar high
+costs for liability insurance and the threat of potential
+litigation. To reduce your liability, you decide to avoid high-
+risk cases like trauma cases, or maybe you decide to retire
+altogether.
+ Dilemmas like these play out across America every day, as
+medical lawsuit abuse undermines both our health-care system
+and the doctor-patient relationship. Moreover, medical lawsuit
+abuse is driving up health-care costs at a time when we are
+still reeling from one of the worst recessions in modern times.
+ I am here today to ask you to create a climate for patient-
+centered care by reforming the medical liability system that
+continues to put everyone's health care at risk. The current
+system is clearly broken, and there is widespread agreement
+amongst lawmakers, health-care policy experts, opinion leaders,
+and the public that reform is needed.
+ Today, more than 90 percent of OB/GYNs have been sued at
+least once. One-third of orthopedic surgeons, trauma surgeons,
+emergency doctors, and plastic surgeons are sued in any given
+year, and neurosurgeons once every 2 years, on the average.
+And, as you know, most claims are without merit. This toxic
+litigation environment is fundamentally changing the doctor-
+patient relationship. It is driving doctors to get out of
+medicine or to practice defensive medicine.
+ Defensive medicine is the antithesis of health-care reform
+because it increases health-care costs. And it has the
+potential to lessen access to care and quality of care in two
+ways.
+ First, doctors practice assurance behavior, which includes
+ordering tests, particularly imaging studies, performing
+diagnostic procedures or referring patients in order to provide
+an extra layer of protection against abusive lawsuits. A recent
+Gallup survey found that the fear of lawsuits was the driver
+behind 21 percent of all tests and treatments ordered by
+doctors, which equates to 26 percent of all health-care
+dollars, a staggering $650 billion.
+ Defensive medicine also includes avoidance behaviors, where
+doctors eliminate high-risk procedures like head injury, trauma
+surgery, vaginal deliveries, or procedures prone to
+complications, and they avoid patients with complex problems or
+patients who seem litigious.
+ In 2008, almost half of America's counties had no
+practicing obstetricians. This shouldn't be happening in
+America. And, unfortunately, the PPACA was not comprehensive
+reform, as it didn't address this critical issue.
+ There are remedies to fix this broken system, but it is
+imperative that we act now before defensive medicine practices,
+and costs associated with it, becomes the standard of care,
+before health-care costs go higher and unemployment along with
+it, before doctor shortages change the very nature of our
+health-care system.
+ Successful reform efforts in States, especially California
+and Texas, have given us a blueprint for Federal medical
+liability reform legislation. HCLA has outlined several
+legislative proposals that preserve State laws already working
+effectively to make the medical liability system fair for both
+patients and health-care providers, but also broaden coverage
+across the Nation.
+ I would like to close by telling you about a Maryland
+gynecologist, Dr. Carol Ritter, who stopped delivering babies
+in 2004 when her liability premiums hit $120,000 a year. She
+couldn't deliver enough babies to pay the trial bar's tab.
+Today, Dr. Ritter maintains a gynecology practice and still
+delivers babies, but she does it in Haiti and Honduras and
+Bosnia, where she joins relief efforts helping women in these
+impoverished places get obstetrical care, including delivering
+babies. She says she does it for the sheer joy of what she does
+best, but she can't do it in Maryland.
+ I would say to you today that something is very wrong when
+a caring, committed physician like Dr. Ritter can't bring an
+American baby into this world for fear of frivolous lawsuits.
+Ladies and gentlemen, you have the ability and, I think, the
+responsibility to help right that wrong.
+ Thank you very much.
+ [The prepared statement of Dr. Weinstein follows:]
+ Prepared Statement of Stuart L. Weinstein
+
+
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+
+ __________
+
+ Mr. Smith. Thank you, Dr. Weinstein.
+ And I will recognize myself for questions and, Dr. Hoven, I
+would like to address my first question to you.
+ You heard mentioned a while ago and you know, of course,
+that the Congressional Budget Office estimates that we would
+save $54 billion over 10 years if we reduce the cost of
+defensive medicine.
+ There are other studies--for instance, the Pacific Research
+Institute says that defensive medicine costs $191 billion. A
+Price Waterhouse Coopers study puts it at $239 billion. And
+Newsweek reports that, all told, doctors order $650 billion in
+unnecessary care every year.
+ I don't know which of those figures is correct, but they
+all point to the same direction, which is defensive medicine is
+expensive and costs, let's say, at a very minimum, tens of
+billions of dollars, probably, every year.
+ My question is this: Who pays for the cost of all that
+defensive medicine?
+ Dr. Hoven. Thank you.
+ We all pay for the cost of that defensive medicine. At the
+end of the day, patients pay for it. We pay taxes that pay for
+it. We all pay, ultimately, for the cost of that defensive
+care.
+ Now, it is very important to realize, in the culture of
+fear in which we are all practicing medicine now--and I use
+that term because I think it is very real--that most physicians
+want to practice medicine the best possible way they can. They
+want to do the best job they can. But what they recognize is
+that their clinical judgment is not allowed to carry any weight
+in the court of law, so that, in fact, we do these things for
+assurance to protect ourselves. And, at the end of the day,
+that is where those costs do come around.
+ Mr. Smith. Yeah, okay. Thank you, Dr. Hoven.
+ Dr. Weinstein, the Congressional Budget Office estimates
+that, if we were to enact medical liability reform, premiums
+would drop 25 to 30 percent. Who benefits from a drop in
+premiums of 25 to 30 percent? Or maybe I should say, is the
+benefit limited to the physician and medical personnel or not?
+ Dr. Weinstein. I think, ultimately, Mr. Chairman, is that
+when medical liability premiums begin to drop, the culture of
+fear amongst physicians eventually will change. This is a
+cultural change that will have to occur over time. And once
+that cultural change occurs, then the practices of defensive
+medicine, which you have heard about over and over again, will
+eventually change, as well, and our health-care costs will go
+down. So, ultimately, patients and the American public will
+benefit.
+ Mr. Smith. Patients and the consumers benefit.
+ My last question is to both Dr. Weinstein and Dr. Hoven.
+And I want to ask you all to respond to a point that Ms.
+Doroshow made, where she said that, basically, it wasn't
+medical liability reform that reduced premiums, it was
+insurance reform. And she gave the example of California.
+ Who would like to respond? Either California or Texas.
+ Dr. Hoven?
+ Dr. Hoven. I will go first.
+ It takes 8 to 10 years to see the effects of these reforms
+when they are enacted. There really is not firm, hard evidence
+that, in fact, the insurance change was the result. It was the
+fact that, across the country, it takes 8 to 10 years to begin
+to see the evolution of change when these reforms are put in
+place.
+ Mr. Smith. Okay.
+ And Dr. Weinstein?
+ Dr. Weinstein. Mr. Chairman, I think that all would agree
+that the system in California compensates the patients in a
+much more rapid fashion and also more appropriate, so that
+patients who are indeed injured get the majority of the reward.
+ Mr. Smith. Okay.
+ And, Dr. Weinstein or Dr. Hoven, respond to this, if you
+would. In regard to the California insurance reform--I am
+looking at a newspaper article. It said that Proposition 103
+that required a rollback of insurance premiums and not
+California's health-care litigation reforms have controlled
+medical professional liability premiums. That is the assertion.
+But, according to the Orange County Register, ``A rollback
+under Proposition 103 never took place because the California
+Supreme Court amended Proposition 103 to say that insurers
+could not be forced to implement the 20 percent rollback if it
+would deprive them of a fair profit.''
+ So it is hard to see the correlation, therefore, between
+the insurance reform and the drop in premiums. And, clearly,
+the drop in premiums were a result of the medical liability
+reforms.
+ I thank you all for your responses, and I will recognize
+the Ranking Member for his questions.
+ Mr. Conyers. Thanks, Chairman.
+ And I thank the witnesses.
+ Where are we now in terms of the Health Care Reform Act,
+which sometimes is derogatorily referred to as ObamaCare--I use
+the term because I think it is going to go down historically as
+one of the great advances in health care.
+ But didn't the Health Care Reform Act, which still, by the
+way, is the law of the land and will be until the President
+signs the repeal, which I wouldn't recommend anybody to hold
+their breath on--we provided money for examining this very same
+subject, Section 10607.
+ Does anybody know anything about that here?
+ Yes, sir?
+ Dr. Weinstein. Mr. Conyers, are you referring to the
+demonstration projects?
+ Mr. Conyers. Yes, the $50 million for a 5-year period
+that--demonstration grants for the development to States for
+alternatives to current tort litigation. That is right.
+ Dr. Weinstein. If I could address that question, I would
+say that the way the demonstration projects--which haven't been
+funded, I don't believe, yet--but the way the demonstration
+projects are outlined, I believe that the patients can then
+withdraw at any time and choose another alternative.
+ And I am a full-time educator/clinician scientist, and I
+would say, when you design a research study which allows
+patients to cross over or change, you don't get good
+information at the end of the day. That is not the good
+scientific method, if you will, if you want to find out what
+works best. So I would argue that the way that is designed has
+a flaw to it.
+ And, also, there have been demonstration projects across
+the States for a number of years.
+ Dr. Hoven. If I could comment?
+ Ms. Doroshow. Could I----
+ Mr. Conyers. Sure, you can.
+ Ms. Doroshow. Actually, in conjunction with that provision
+in the health-care bill, HHS has actually awarded, now, a
+number of grants to many States, up to $3 million, to develop
+alternative procedures and other kinds of patient-safety-
+oriented litigation reforms.
+ So those grant proposals were already given; there was
+money. And these demonstration projects are in the process of
+being explored right now at the State level. I live in one
+State where that is true, New York.
+ Mr. Conyers. Well, are we here--can I get a response from
+all of our witnesses about the whole concept of providing
+health care for the 47 million or more people that can't afford
+it? Are any of you here silently or vocally in support of a
+universal health-care plan?
+ Dr. Hoven. If I may speak to that, sir?
+ Mr. Conyers. Sure.
+ Dr. Hoven. The American Medical Association recognizes that
+the PPACA is not a perfect bill, but it is a first step in
+getting us to where we need to be in this country--medical
+liability reform, alternative mechanisms for dispute resolution
+that are to be funded through that legislation are under way as
+we speak.
+ We in no way support a mechanism that does not recognize
+that every person in this country needs affordable care and
+access to quality health care.
+ Mr. Conyers. Well, the bill that was just repealed
+yesterday provided for millions of more people getting health
+care because we raised the ceiling on Medicaid and we allowed
+the inclusion of children in the parents' health-care plan
+until age 26, a 7-year increase. Did that help any?
+ Dr. Hoven. We will wait and see.
+ Mr. Conyers. We will wait and see? You mean you will wait
+to see if there are any parents that want to keep their kids
+included for 7 more years? I haven't found one yet that doesn't
+want that provision in the bill.
+ Dr. Hoven. Let me go back to my earlier comments. Access to
+care for everyone is what we want and need in this country.
+ Mr. Conyers. Well, I know it. Yeah, that is a great
+statement. That is what I want, too. And that is why I was
+asking you about some of the provisions of the bill that was
+just dunked last night by the 112th Congress.
+ But I thank you, Mr. Chairman.
+ Mr. Smith. Okay, thank you, Mr. Conyers.
+ The gentleman from New York, Mr. Reed, is recognized for
+his questions.
+ Mr. Reed. Well, thank you, Mr. Chairman.
+ I thank the witnesses for appearing today.
+ I will ask Dr. Weinstein, when I looked at the National
+Commission on Fiscal Responsibility and Reform, the President's
+commission to explore ways to reduce the deficit, it was
+recommended in there that health-care litigation reform as a
+policy could save money and go to limit the deficit. The
+deficit is a huge issue and a priority for many new Members of
+Congress, of which I am one.
+ Do you agree that lawsuit reform could and would reduce the
+deficit?
+ Dr. Weinstein. Yes, sir, I do. I think that has been shown.
+I think the CBO report that Senator Hatch had requested
+information on showed it would reduce it by $54 billion over 10
+years. And depending on what study you look at, I think there
+has been widespread discussion in the media, by Members of
+Congress, and also by various groups who have looked at this
+issue. Senator Kerry and Senator Hatch on ``This Week'' on ABC,
+I think, both felt that this would be a significant step
+forward, addressing the medical liability issue.
+ So I think that, to us, there is no question that this
+would, indeed, reduce health-care spending.
+ Mr. Reed. Dr. Hoven, would you agree?
+ Dr. Hoven. I most certainly would agree. I think, clearly,
+that is not chump change we are talking about. And we clearly
+need to move ahead. And, you know, that is a conservative
+estimate, and it may even be greater than that.
+ Mr. Reed. And, Ms. Doroshow, would you agree or disagree
+with that?
+ Ms. Doroshow. I absolutely disagree with that.
+ I think that what CBO did unfortunately avoided a number of
+very important issues that will end up increasing the deficit,
+burdening Medicaid and Medicare, in particular--three things,
+in particular.
+ One is, when you enact these kinds of severe tort reforms,
+there are many people with legitimate cases that cannot find
+attorneys anymore and cannot bring cases. This is well-
+documented as having happened in California. In fact, you had a
+witness before this Committee in 1994 testifying to that
+effect. And it is certainly happening in Texas. So you have
+many people that are going to end up going on Medicaid that
+otherwise would have been compensated through an insurance
+company.
+ Second, as I mentioned, there are liens and subrogation
+rights that Medicare and Medicaid have when there is a judgment
+or a verdict in a lawsuit. In other words, they can get
+reimbursed. If there is no lawsuit, that reimbursement is gone.
+So they lose money in that regard.
+ Third, these kinds of measures are going to make hospitals
+more unsafe. There are going to be many, many more errors. Even
+the CBO, in its letter to Senator Hatch, talked about one study
+that would increase the mortality rate in this country by 0.2
+percent. And that doesn't even include the injuries. So you are
+going to have more people hurt, more expense taking care of
+those people.
+ And, frankly, when you enact any kind of cap on noneconomic
+damages, in particular, those have a disproportionate impact on
+senior citizens, children, low-income earners. And, certainly,
+senior citizens, what has happened in Texas with the cap, those
+cases really are not being brought anymore. So senior citizens
+who are on Medicare, who should have a right to seek
+accountability from a hospital that caused negligence, no
+longer are bringing those lawsuits, and so Medicare is paying.
+ There are lots of costs that are going to end up increasing
+the deficit.
+ Mr. Reed. Well, but my understanding is that we are not
+looking to discourage legitimate lawsuits. We are allowing
+economic damages to be fully compensated. And the subrogation
+rights that you refer to are derived from the economic damage
+calculation, because those are lost wages--or medical bills,
+past and future, that the subrogation rights are derived from.
+ So what we are talking is focusing on the frivolous
+lawsuits that are there. So I guess I don't follow your logic
+saying that that is a reason why----
+ Ms. Doroshow. No, I think that is actually not what history
+shows. History shows, when you cap noneconomic damages, there
+are certain classes of cases that are no longer brought.
+ That is what has happened in California, and that is what
+this individual testified. An insurance defense lawyer
+testified before this very Committee in 1994: Entire categories
+of cases can no longer be brought, those that involve primarily
+noneconomic damages.
+ For example, one of the people we brought to Washington a
+couple of times, a woman named Linda McDougal, she was the
+victim of negligence----
+ Mr. Reed. Thank you, Ms. Doroshow. I think my time has
+expired.
+ Thank you, Mr. Chairman.
+ Mr. Smith. Thank you, Mr. Reed, for your questions.
+ Ms. Doroshow, if you want to finish the sentence, you may
+do so.
+ Ms. Doroshow. Well, she had an unnecessary double
+mastectomy because the lab misdiagnosed cancer when she didn't
+have it. And she came down to testify a few times. But her
+damages were entirely noneconomic in nature.
+ Mr. Smith. All right.
+ Ms. Doroshow. So a cap only affected cases--her case.
+ Mr. Smith. Okay. Thank you very much.
+ The gentleman from Virginia, Mr. Scott, is recognized for
+his questions.
+ Mr. Scott. Thank you, Mr. Chairman.
+ One of the problems we have in this discussion is a lot of
+the problems are articulated and then solutions are offered and
+very little effort is made to see how the solutions actually
+solve the problems.
+ Ms. Hoven, did I understand your testimony that physicians
+are routinely charging for services that are not medically
+necessary to the tune of $70 billion to $126 billion?
+ Dr. Hoven. I am talking about defensive medicine.
+ Mr. Scott. I asked you, are those services that are not
+medically necessary?
+ Dr. Hoven. They are services that are medically indicated
+and medically necessary if you look at guidelines and criteria.
+However, what does not happen is--my clinical judgment whether
+to employ that test is disregarded.
+ Mr. Scott. Are you suggesting that the services are not
+medically necessary? If liability were not a factor, would the
+services be provided or not?
+ Dr. Hoven. It depends on the case. It depends on the
+situation. It depends on the environment of care.
+ Mr. Scott. And you are suggesting that in $70 billion to
+$126 billion worth of cases, services were rendered that were
+not medically necessary, were not needed?
+ Dr. Hoven. That is not what I said, Congressman.
+ Mr. Scott. Well, what are you saying?
+ Dr. Hoven. I am saying that health care delivered in the
+examining room, in the operating room, is driven by what is
+based on clinical judgment and based on assurance testing,
+which is documentation and proving that, in fact, that is what
+is wrong with a patient.
+ When we talk about cost control in this country, we are
+talking about the fact that--and this goes to the whole issue
+of cost containment, which is, if, in fact, you would recognize
+my medical judgment and allow me to decide when it is important
+to do a test or not, then our patients would be better served.
+ Mr. Scott. By not providing the services?
+ Dr. Hoven. If, in my judgment, they don't need it.
+ Mr. Scott. And you are not able to--and you charge for
+services that, in your judgment, are not needed to the tune of
+$70 billion to $126 billion?
+ Dr. Hoven. I do not do that. However, let me----
+ Mr. Scott. Well, I mean, your testimony was that physicians
+are charging $70 billion to $126 billion more than necessary
+and then blame it on liability. Now, is that your testimony?
+ Dr. Hoven. Yes, that is my testimony.
+ Mr. Scott. That it is not necessary, that you are providing
+services that are not necessary. Either they are necessary or
+they are not.
+ Dr. Hoven. We are practicing in a culture of fear. And that
+culture of fear lends itself to protecting oneself. I have been
+sued, Congressman. Let me tell you----
+ Mr. Scott. Wait a minute. I just asked you a simple
+question. You gave $70 billion to $126 billion. I just want to
+know what that represents.
+ Dr. Hoven. That is costs for tests and procedures which, if
+you look at guidelines, would be medically necessary, but my
+medical judgment is discounted.
+ Mr. Scott. That, based on your medical judgment, should not
+have been provided.
+ Dr. Hoven. Not necessarily.
+ Mr. Scott. Okay, well, I am not going to--Ms. Doroshow, if
+physicians are charging for services that are not necessary,
+how is that different from medical fraud?
+ Ms. Doroshow. That is a good question, because in order to
+get reimbursed--to file a claim with Medicare and to be
+reimbursed, physicians have to file a form and certify that the
+test and procedure, the services that they provided are
+medically necessary for the health of the patient. So it does
+raise a question whether or not some claims may be false.
+ Mr. Scott. If someone were to do a survey to say, why did
+you provide the services that were not necessary, what would be
+the convenient answer? If they ask you, why did you provide the
+services that were not necessary, what would be a nice,
+convenient----
+ Ms. Doroshow. To say that they----
+ Mr. Scott. Because they were afraid of lawsuits, so they
+can charge for services that weren't even needed.
+ Ms. Hoven, did you indicate that you supported a fair
+determination for medical malpractice issues, so that those who
+had bona fide cases could actually recover?
+ Dr. Hoven. Most definitely, Congressman.
+ Mr. Scott. Now you are aware that the Institute of Medicine
+estimates about 100,000 deaths due to medical mistakes and only
+about 5,000 to 10,000 wrongful death cases are paid every year?
+ Dr. Hoven. Well, if you look at the statistics, which you
+are obviously very familiar with, we are talking about apples
+and oranges here in many situations. We are talking about
+errors and adverse events as opposed to true malpractice and
+negligence. So I think you have to be careful about the
+terminology.
+ Mr. Scott. So what would be the barrier to 90 to 95 percent
+of the cases that were caused my medical errors from
+recovering?
+ Dr. Hoven. They should be able to recover.
+ What the Health Act would do would allow them to recover so
+that they would be appropriately rewarded for what happened to
+them in their loss. The Health Act talks about that in terms of
+all of the economic elements that are involved, including their
+health care.
+ Mr. Scott. Mr. Chairman, my time has expired.
+ Mr. Smith. Thank you, Mr. Scott.
+ The gentleman from Pennsylvania, Mr. Marino, is recognized
+for his questions.
+ Mr. Marino. Mr. Chairman, I yield my time.
+ Thank you.
+ Mr. Smith. We will go to the gentlewoman from Florida for
+her questions, Mrs. Adams.
+ Mrs. Adams. Thank you, Mr. Chair.
+ Ms. Doroshow, I was looking at this Institute of Medicine
+study. And you cited it in your opening statement and in your
+packet. And it says that as many as 98,000 patients die
+annually due to medical errors. And what we found was that it
+has shown to be exaggerated and unreliable, isn't that true,
+because based on, shortly after its release in 2000, the study
+came under heavy criticism for imprecise methodology that
+greatly overstated the rate of death from medical errors?
+ For example, the study data treated deaths from drug abuse
+as medication errors. And Dr. Troyen Brennan, the lead Harvard
+researcher who compiled much of the data upon which the report
+was based later revisited his methodology and determined that
+the actual figure could be less than 10 percent of the IOM's
+estimate. Is that true?
+ Ms. Doroshow. Well, what is true is that many other studies
+since then have found far more than 98,000 deaths; many other
+institutions that have looked into it. And, just in November,
+HHS took a look at this issue again, and they found that one in
+seven patients in hospitals are victims of an adverse event,
+and 44 percent of them are preventable.
+ Also, there was a study just also released in November of
+North Carolina hospitals--North Carolina is supposed to be a
+leader in patient safety--basically, finding that since the
+Institute of Medicine report, patient safety has not improved
+at all. And it really kind of shocked the authors of this
+research study, and they found that the errors that are causing
+deaths and injuries are continuing at an epidemic rate.
+ So I would say that the 98,000 figure at this point is low
+and has been probably upped by every patient and government
+study that has looked into it since.
+ Mrs. Adams. So your testimony is that every adverse event
+is a medical malpractice?
+ Ms. Doroshow. I am looking at the studies and how they
+define it. In, for example, the HHS study, they found one in
+seven Medicare patients are the victim of an adverse event, and
+44 percent are preventable.
+ Mrs. Adams. Again, are you saying, in your eyes, is an
+adverse event medical malpractice?
+ Ms. Doroshow. A preventable adverse event is.
+ Mrs. Adams. The other thing I wanted to know, I know who
+Dr. Hoven is representing and I know who Dr. Weinstein is
+representing. But I couldn't find in your documentation where
+the Center for Democracy and Justice gets its funding. Could
+you provide the Committee with a list of your fellow and
+associate members so we have an accurate understanding of the
+point of view which you are presenting?
+ And, also, you mentioned the demo projects and that they
+are going to get grant funding. Are you or anybody that is
+associated with the Center for Justice and Democracy able to
+apply for those grants?
+ Ms. Doroshow. Apply for which grants?
+ Mrs. Adams. The ones for the research that you were
+speaking about earlier.
+ Ms. Doroshow. Well, we are tiny. We have about five people
+on our staff. We are not a high-budget operation. So we don't
+really have the staff to do research projects like that. We
+hope other people would do that.
+ Mrs. Adams. Again, I would like to know, like your fellow
+and associate members, are they going to be applying for those
+grants?
+ Ms. Doroshow. Our associate members? I would have no
+information about any of that. I don't know. Those grants were
+already--that process has already taken place. HHS has already
+granted the money. In New York, for example, it granted $3
+million to the Office of Court Administration in conjunction
+with the Department of Health that is looking at a specific
+proposal that was presented to them. So, actually, I know a lot
+about that proposal. I know about a few of the others. But that
+has already happened.
+ Mrs. Adams. Are you aware--and this goes to all three of
+you, and I think Dr. Weinstein and Dr. Hoven have said this,
+and I just want to make sure that you are aware also--that
+there are certain professions in the medical field that have
+stopped practicing because they can't see enough patients in
+order to cover their insurance costs, just the cost alone; not
+because they have done anything wrong, but they cannot see
+enough patients to cover their malpractice insurance costs.
+ Ms. Doroshow. Well, I hope that also you are aware that
+since 2006, we have been in a soft insurance market. That is
+why you don't hear any longer about doctors picketing on State
+legislatures and capitals and trauma centers, et cetera, that
+we did in the early part of the 2000's, when we were in a hard
+insurance market, when rates were going up 100, 200 percent for
+doctors. This is a cyclical industry. This has happened three
+times in the last 30 years when rates have shot up like this.
+ To believe that the legal system has anything to do with
+it, you would have to believe that juries engineered large
+awards in 1975; and then stopped for 10 years; and then did it
+again in 1986 to 1988; and then stopped for 17 years; and then
+started up again in 2001. Of course, that has never been true.
+The claims have always been steady and stable.
+ So what is driving insurance rate hikes is the insurance
+and accounting practices of the insurance industry. The
+solutions to that problem lie with the insurance industry. They
+should not be solved on the backs of injured patients.
+ Mrs. Adams. I see my time has expired. I look forward to
+further discussion.
+ Mr. Smith. Thank you, Mrs. Adams.
+ The gentlewoman from Texas, Ms. Jackson Lee, is recognized
+for her questions.
+ Ms. Jackson Lee. Than you, Mr. Chairman.
+ Let me thank all of the witnesses for their presence here
+today. And I want you to know that each of your presentations
+are particularly respected and admired.
+ I want to start with the representative, Dr. Hoven, from
+the American Medical Association. Coming from Houston, I think
+many of you are aware, probably so for me, that we have one of
+the greatest medical centers in the world, the Texas Medical
+Center. I am very proud of a recent $150 million private
+donation just recently received by the Texas--by MD Anderson.
+And so I have a great familiarity with a lot of physicians and
+applaud their work and thank them for some of the lifesaving
+research that they have been engaged in.
+ But building on the present national law, which is, of
+course, the Patient Protection and the Affordable Care Act, Dr.
+Hoven, one of your peers or one of your colleagues who happened
+to serve in this body, Senator Frist, indicated that that law
+was the fundamental platform upon which we could now base our
+desire to go forward, to have additional provisions.
+ So I just want to get a clear understanding. It is my
+understanding the American Medical Association supported the
+bill. Is that correct?
+ Dr. Hoven. The American Medical Association supported parts
+of the bill. We believe that access to care, covering the
+uninsured, decreasing costs and improving quality, are very,
+very important first steps.
+ Ms. Jackson Lee. So you are telling me doctors would not
+support eliminating the preexisting conditions and allowing
+children to stay on their insurance until age 26?
+ Dr. Hoven. We do support that.
+ Ms. Jackson Lee. All right. So I think a great part of the
+bill, you did, and you probably would--I am not sure; maybe
+because you are before a large group that you don't want to say
+that the AMA supported it, but it is my understanding they did.
+I see someone shaking their head behind bill. So you support
+the bill. Did the AMA support the bill?
+ Dr. Hoven. The AMA did support the bill. We have recognized
+it is an imperfect bill.
+ Ms. Jackson Lee. You are absolutely right. And I will
+assure you, those of us who are lawyers as well agree with you,
+because it is very difficult to write a perfect bill. But as
+Dr. Frist said, this is a bill that is the law of the land. In
+fact, he even said he would have voted for it. So I want to
+clear the record that this is a bill that really does answer a
+lot of questions, but we can always do better.
+ Let me indicate to Ms. Doroshow, if I have it correctly, in
+the process of hearings, we have witnesses that represent the
+majority view. The majority is represented by Republicans,
+chaired by Mr. Smith. And we have a right to have a witness
+that maybe has a different perspective.
+ So to inquire of your funding, whether you are getting
+grants, every hearing we will find that we will have witnesses
+that agree with the predominant view of the majority, but we
+will also have in this democracy the right to have a different
+view.
+ I suppose you have a different view from the Health Act
+that is before us, is that correct? There is a bill--you have a
+slightly different view, is that my understanding, between this
+question dealing with tort reform or medical malpractice?
+ Ms. Doroshow. I certainly have a different view from the
+other witnesses, yes.
+ Ms. Jackson Lee. That is the point I am making. So let me
+inquire.
+ And as I do that, I think the point that I wanted to engage
+with Dr. Hoven was to say that I want to find every way that we
+can work with physicians. I want their doors to be open. I want
+them to be in community health clinics. I want them to have
+their own private practice. I want them to be OB/GYNs. In fact,
+Dr. Natalie Carroll Dailey, an OB/GYN, former president of the
+National Medical Association, I count her as a very dear friend
+but also someone who counsels me.
+ So let me be very clear. Answer these two questions, to Ms.
+Doroshow: What is the reality of how many frivolous lawsuits we
+have? You have a notation of the Harvard School of Public
+Health. Give me that, quickly.
+ The second thing is, insurance companies. Isn't that the
+crux of the problem? Are the patients the ones that are
+charging doctors $120,000for insurance, or is it the insurance
+companies, who have documented that they will not lower costs
+even if there is a low count of medical malpractice lawsuits in
+that doctor's area, in that doctor's office, and in that State?
+Isn't that true?
+ Ms. Doroshow. Absolutely.
+ Ms. Jackson Lee. Would you just comment very quickly. And
+let me, as I say that, say to you, my mother had a pacemaker
+for 20 years. She had a procedure to give her a new one. The
+next day she was dead.
+ I would like you to be able to answer my questions, if the
+Chairman would indulge your answer, please.
+ Ms. Doroshow. Well, in terms of the Harvard study, this is
+important because this is the study that gets, I think,
+misrepresented often and figures about 40 percent of the cases
+are frivolous.
+ Actually, the Harvard study found the exact opposite. In
+fact, I will read the quote from the author of that study, the
+lead author, David Studdert: Some critics have suggested that
+the malpractice system is inundated with groundless lawsuits
+and that whether a plaintiff recovers a money is like a random
+lottery, virtually unrelated to whether the claim has merit.
+These findings, the Harvard School of Public Health findings,
+cast doubt on that view by showing that most malpractice claims
+involve medical error and serious injury and that claims with
+merit are far more likely to be paid than claims without merit.
+ And there is a lot of extensive research done on that
+study. And the headline of the Harvard press release was:
+``Study Casts Doubt on Claims that Medical Malpractice System
+is Plagued by Frivolous Lawsuits.'' So that clearly is not a
+problem.
+ Mr. Smith. The gentlewoman's time has expired.
+ Than you, Ms. Doroshow.
+ We will recognize the gentleman from Virginia, Mr. Forbes,
+for his questions.
+ Mr. Forbes. Thank you, Mr. Chairman.
+ And I want to thank all of our witnesses. I truly believe
+all three of you are here to do what you think is in the best
+interest of our patients and of the United States.
+ I feel the same way about the Members that we have up here.
+But we all have specific constituencies.
+ As much as I love the Chairman, I know that there are times
+that--he is from Texas, and he has a Texas constituency; the
+gentleman from Arkansas has an Arkansas constituency; and the
+gentlewoman from Florida has a Florida constituency. And that
+is why we tell everybody, the gentleman from Florida, the
+gentleman from Arkansas.
+ I think it is important that we know when you are
+testifying who you are constituencies are. And two of our
+witnesses have set that forward. And Congresswoman Adams asked
+what I think is a fair question to Ms. Doroshow, and that is if
+she would just be willing to give us your sources of public
+funding and your membership, would you make those public so we
+know who those constituencies are?
+ Ms. Doroshow. Well, we are a 501(c)3 tax-exempt
+organization, and we do not release the names and information
+about our donors. I will say that we get different kinds of
+funding. We get foundation grants, for example. In fact, I
+started the organization in 1998, and it was just myself sort
+of sitting there writing letters to the editor with a little
+bit of money from a friend of mine, and I got a large grant
+from the Stern Family Fund.
+ Mr. Forbes. Ms. Doroshow, I just only have 5 minutes. So
+the answer is that you won't let us know who your membership is
+and your sources of funding.
+ Ms. Doroshow. Absolutely not.
+ Mr. Forbes. Okay. Then we will take that into account. And
+let me just say that sometimes this is not as complex as we try
+to make it.
+ The reality is that everybody at home who watches these
+hearings and who looks at these issues, they know when you are
+talking about not changing tort reform who the true
+beneficiaries of that are. They are the trial lawyers. And the
+trial lawyers are the ones that put the dollars behind it. The
+trial lawyers are the ones that will sit here and tell us, if
+we don't do this, we are going to be impacted, and we are could
+be losing our jobs.
+ On the other hand, we know who some of the major
+beneficiaries are if we do tort reform, and that is some of our
+doctors. And they tell us, hey, if we don't do this, we could
+be losing our jobs.
+ One of the interesting things I can tell you and tell this
+Committee, I have never in my entire career had a single
+constituent walk into me and say, I am worried because I can't
+find a trial lawyer out there. But I have them over and over
+coming to me now, truly worried that they cannot find doctors
+to represent them. And, secondly, when I hear people talk about
+the 2 or 3 percent of bad doctors, that sometimes falls on
+hollow ground because the same people that will point and say,
+oh, yeah, we can't do malpractice reform because it is 2 or 3
+percent of bad doctors fight us every time we try to get rid of
+the 2 or 3 percent of bad doctors, the same way they try to do
+when we try to get rid of the 2 or 3 percent of bad teachers.
+ So my question to you is this, all three of you. I am a
+firm believer in modeling and simulation. We use it in the
+Armed Services Committee to try to model for us our most
+difficult weapon systems, our military strategies. We are so
+confident in it, although we know it has some flaws, that we
+put the entire defense of the United States sometime on
+modeling and simulation that we can do.
+ Do we have any efforts at modeling and simulation that
+would help show us what the health care world would be like if
+we did tort reform and if we got rid of some of the litigation
+and whether it would benefit us or not? And if we don't, what
+can we do to help you move forward in that?
+ Dr. Weinstein?
+ Dr. Weinstein. If I could address that question, I think
+you have a model out there existing already, and that is the
+most recent Texas reform. You also have California, which has a
+longer history.
+ And the Texas reform obviously showed lowering premiums but
+increasing numbers of critical care specialists, particularly
+in underserved counties. That included also pediatricians,
+emergency physicians, et cetera.
+ If I might, could I come back to the issue of the frivolous
+lawsuits? Is that possible.
+ Mr. Forbes. Absolutely.
+ Dr. Weinstein. Congresswoman Adams asked about this. And I
+think the issues are that the data would be that 64 percent of
+suits are either withdrawn, dropped, or dismissed because they
+lack merit. Less than 1 percent are actually decided for the
+plaintiff.
+ And when you come to the New York study, which is called
+the Harvard study, that looked at New York data, you are
+talking about extrapolation of 280 cases of error. And in that
+study, errors could be someone falling in the hallway walking,
+and that was lumped together with someone who had a significant
+surgical error. And the study has been flawed, as was pointed
+out.
+ Mr. Forbes. Dr. Weinstein, my time is up. I don't mean to
+cut you off, but I just wanted to say the point that you made
+about California and Texas is so accurate. We hear over and
+over we are going to do these demonstration projects, but you
+have two monstrous demonstration projects. And if we are going
+to ignore those, we are certainly going to ignore the other
+demonstration projects.
+ Dr. Hoven, I don't have time for you to give me your
+answer, but if you could submit it to us in writing.
+ Or, Ms. Doroshow, we would love to have it on the modeling
+simulation part.
+ Mr. Smith. Thank you, Mr. Forbes.
+ The gentleman from North Carolina, Mr. Watt, is recognized
+for his questions.
+ Mr. Watt. Thank you, Mr. Chairman.
+ Let me first apologize to the witnesses. I had to leave to
+go to a meeting and didn't hear anything other than a small
+part of the first witness's testimony. But I assure you I will
+read it.
+ I didn't come back to ask questions about what you said
+because I didn't hear what you said.
+ I came back, really, to make sure that any perspective that
+I have on this issue gets into the record, because this is
+where I differ with a lot of my colleagues who have thought
+that this is an appropriate issue for us to deal with in the
+U.S. House Judiciary Committee.
+ I am kind of a States' rights old-school guy on this and
+have always believed that tort law was a matter of State law. I
+concede that we have the authority to write tort standards for
+Medicare recipients and for the range of people that we do. But
+general tort law, from my perspective, has always been a matter
+of State law.
+ I happen to live in Charlotte, North Carolina, and that is
+right on the South Carolina line, but I have never seen a
+hospital that straddles the line. They don't operate--I have
+never seen a medical procedure take place in interstate
+commerce. I concede they use stuff that comes through
+interstate commerce. Everything we do comes through interstate
+commerce. But I just think that this is an issue that my
+conservative colleagues, the States' righters, have lost their
+way on.
+ Were I a member of the North Carolina State legislature,
+perhaps I would listen very intently to whether we need to, in
+North Carolina, do tort reform. And they have at the State
+legislature level in North Carolina. I happen to think that
+they are as intelligent and bright in the State legislature of
+North Carolina as we happen to be here in the Congress of the
+United States. We don't have any monopoly on knowledge on this
+issue. It is a State issue. It has historically been a State
+issue. And I think my conservative colleagues have lost their
+way trying to make this a Federal issue.
+ So I want that in the record. They say I used to be the
+chair of the States' Rights Caucus on this Committee. Maybe
+this is one of those times that I got that reputation as being
+the chair of the States' Rights Caucus. But we can debate
+whether, State-by-State, States ought to be doing this. We
+could even debate whether we ought to be applying some
+different standards for Medicare recipients or Medicaid
+recipients. But I just think, as a general proposition, having
+a debate about doing general tort law reform in the Congress of
+the United States offends that Constitution that we read the
+first day of this session on the floor. So that is my
+perspective.
+ I appreciate you all being here as witnesses. But I didn't
+want to miss the opportunity to put that perspective in the
+record in public, not that I haven't done it before. If you go
+back to the 111th Congress, the 110th Congress, the 109th
+Congress, and you go all the way back to when I started,
+whatever Congress that was, I think I have given my perspective
+on this over and over and over again because we have been
+talking about this for the 18 years that I have been here. And
+my position on it hadn't changed.
+ We don't do malpractice interstate. If a doctor is
+operating on somebody that lives in another State, they can get
+into Federal court and apply whatever State law it is that
+applied in that jurisdiction.
+ So that is my story, and I am sticking to it.
+ Mr. Lungren. Would the gentleman yield for a moment?
+ Mr. Watt. I don't have any time left.
+ Mr. Smith. The gentleman's time has expired.
+ Let me say to the gentleman, we appreciate his consistency
+over the years in being for States' rights and appreciate his
+being an original founder of the States' Rights Caucus on the
+Judiciary Committee.
+ I will now go to the gentleman from Arkansas, Mr. Griffin,
+for his questions.
+ Mr. Griffin. Thank you, Mr. Chairman.
+ Dr. Weinstein, I am particularly interested in the Gallup
+Poll that came out in February of 2010. Over the last year or
+so, I have talked to a lot of doctors in my district who are
+advocates for some sort of medical liability reform. During the
+last year, this poll came out, and I was struck by the numbers.
+And I saw that you referenced this Gallup Poll in your
+statement.
+ The first question I have for you, is the data in this
+Gallup Poll, the one that came out in February, is it
+consistent with other data that you have seen, particularly the
+point that physicians attributed 26 percent of overall health
+care costs to the practice of defensive medicine; and then,
+secondly, that 73 percent of the physicians agreed they had
+practiced some form of defensive medicine in the past 12
+months?
+ So my first question is whether that data in the Gallup
+Poll is consistent with data that you have seen elsewhere.
+ Dr. Weinstein. Mr. Griffin, I think the data on the cost of
+defensive medicine vary considerably, from low estimates of $56
+billion over 10 years to--this was the largest estimate--$650
+billion. And you can go back to studies like Kessler and
+McClellan and others who have looked at it, and the costs of
+defensive medicine are astronomic. Physicians practice
+defensive medicine. It is not going away.
+ A very well-done study, not by doctors but by lawyers, this
+Harvard group, shows that 90-plus percent of physicians in the
+State of Pennsylvania practice defensive medicine. Whey they
+surveyed residents, doctors in training across all the
+residencies in Pennsylvania, they found that 81 percent felt
+they couldn't be honest with patients. They viewed every
+patient as a potential lawsuit. And the most depressing
+statistic of all was 28 percent of residents across the
+spectrum in Pennsylvania regretted their choice of becoming a
+doctor because of the liability crisis.
+ Mr. Griffin. With regard to the Pennsylvania data that you
+are discussing, have you turned that data over to the
+Committee?
+ Dr. Weinstein. Yes, sir, that is in the written testimony,
+the reference to that.
+ Mr. Griffin. What procedures--could you give us some
+specifics on the procedures that are usually subject to the
+practice of defensive medicine?
+ Dr. Weinstein. Sure. Defensive medicine breaks down to two
+areas. One is assurance behavior. You need to assure yourself
+you haven't missed something. As has been pointed out by Dr.
+Hoven, in medical school, you are trained to take a history, do
+a physical examination, and try and put this puzzle together.
+Occasionally, you will need one test, a lab test or an imaging
+study, and then you will take it in an orderly progression.
+ But the climate of fear that exists from the medical
+standpoint is such that you need to keep taking that
+progression, that orderly progression, to the very end from the
+beginning because, should you miss something, your life and
+your ability to practice medicine and your craft is over. So
+that is the assurance behavior.
+ Avoidance behavior is most medical students come out of
+medical school with--in our school, it is over $100,000 in
+debt. So when they choose a career, they come out of our
+orthopedic surgery residency able to take care of anybody who
+is brought in off the highway who has had a traumatic injury
+and put them together again, but the majority of them don't
+want to do that. They don't want to cover the emergency room
+because that is a high-risk environment. So you avoid things
+that are high risk. You avoid OB. If you are a neurosurgeon,
+you don't take care of children head injuries. A doctor doesn't
+do vaginal deliveries or any deliveries at all. So that is how
+the avoidance behavior affects the American public.
+ Mr. Griffin. So, getting down to the specific medical
+procedures that are usually subject to that, you mentioned head
+injuries; you mentioned OB/GYN. Can you get even more specific
+in terms of the actual procedures?
+ Dr. Weinstein. Well, I think just head injuries in
+children. There are very few neurosurgeons willing to take care
+of a head injury in a child. At one time in this town, 40
+percent of OB/GYNs weren't doing deliveries. This was a few
+years ago. One in seven OB/GYNs no longer just deliver babies.
+OB/GYNS now get, on average, get out of obstetrics at age 48,
+which would be a mid-career point. You are just reaching your
+peak. You have got another 20 years of practice. But now OB/
+GYNs stop practicing obstetrics at age 48 because of the
+liability risk.
+ Mr. Griffin. If you have a number of tests that are being
+conducted using equipment and using resources and, in some
+instances, they are not necessary, they are more to assure or
+to avoid, can you comment on that crowding out tests that need
+to be conducted that are necessary?
+ Dr. Weinstein. I think that when you crowd a system with--I
+won't say that they are unnecessary tests. The gentleman
+earlier was sort of implying that these tests are illegal that
+you are doing; you are defrauding Medicare. I think that is not
+the truth. But, basically, as I mentioned, when you progress to
+solve a puzzle in taking care of a patient, you follow an
+orderly progression. If this doesn't work, then we will do this
+study. We will do a CT scan or a myelogram or an MRI. But we
+can't afford to do that any more.
+ So what happens is you use valuable resources, imaging
+resources in particular, to do defensive medicine to take that
+step number 10 and bring it down to step number 2, and you
+deprive someone who actually needs that resource from the use
+of it.
+ Mr. Griffin. So, if a young child who has a head injury
+comes into the emergency room, an ideal situation, you are
+saying a doctor would look at that child and say, well, I am
+going to start at step one. And if I think I need to go to step
+2 on my way to 10, then I will do that progressively. But in
+the current environment, they see the child and they
+automatically say, we have got to do 1 through 10.
+ Dr. Weinstein. Well, I think if there is a pediatric
+ neurosurgeon or a neurosurgeon willing to take care of that
+injury at that hospital, because I think three-quarters of our
+emergency rooms are at risk because of the availability or lack
+of availability of on-call specialists, that doctor will
+proceed with the entire battery from step one.
+ Mr. Griffin. And not progressively.
+ Dr. Weinstein. Not necessarily in an orderly, progressive
+fashion, which you learned in medical school.
+ Mr. Griffin. Sure.
+ Mr. Smith. Thank you. Mr. Griffin. I appreciate the
+questions.
+ The gentleman from Georgia, Mr. Johnson, who had the
+advantage of going to law school in Texas--is recognized for
+his questions.
+ Mr. Johnson. Thank you, Mr. Chairman.
+ Dr. Weinstein, it is a fact, is it not, that doctors are
+human beings?
+ Dr. Weinstein. Yes, sir, they are.
+ Mr. Johnson. And it is also a fact that human beings are
+not perfect. Isn't it true?
+ Dr. Weinstein. Absolutely.
+ Mr. Johnson. So doctors, just like human beings, make
+mistakes.
+ Would you disagree with that, Dr. Hoven?
+ Dr. Hoven. Errors occur.
+ Mr. Johnson. Errors occur. Mistakes can be made. Isn't that
+true?
+ Dr. Hoven. They can.
+ Mr. Johnson. By doctors. Correct?
+ Dr. Hoven. That is true.
+ Mr. Johnson. And so now when a doctor makes a mistake, it
+can cause a death or it can cause a diminished quality of life
+in the victim. Would anybody disagree with that?
+ Hearing no objection or hearing nothing, I will assume that
+you agree with me on that.
+ That diminished life of a victim of what I will refer to as
+medical negligence, it has a value that a jury puts on it, and
+we call that noneconomic loss what, Lawyer Doroshow? What do we
+call that noneconomic loss, recovery for----
+ Ms. Doroshow. Permanent disability, blindness,
+disfigurement, mutilation.
+ Mr. Johnson. Pain and suffering for whatever may arise as a
+result of the doctor's negligence. Pain and suffering.
+Noneconomic loss. That is worth something, don't you think?
+ Now the question is, how much is pain and suffering worth?
+That might be a little different for Quanisha Scott who, back
+in Little Rock, Arkansas, in 2007, a 29-year old, went for a
+partial thyroidectomy to remove a goiter, and 12 hours later,
+she began to develop a shortness of breath and began feeling
+her neck tighten. Despite complaints to the nurses, her
+condition was not appropriately monitored or reported to a
+physician. She went into respiratory arrest and suffered severe
+brain damage. It was later discovered that she had a hematoma
+at the site of the surgery. She is now bedridden and totally
+dependent on her mother for care.
+ Now that is pain and suffering. Do you think that pain and
+suffering is worth more than an arbitrary cap of $250,000? If
+you do, I disagree with you.
+ If you think that Lauren Lollini out in Denver should be
+limited to $250,000 for pain and suffering--she went to a
+Denver hospital for kidney stone surgery in February of 2009.
+Six weeks later, her health began to deteriorate, with feelings
+of exhaustion and a loss of appetite. After a week of her
+illness, she became jaundiced and had an inflamed liver. The
+doctors at an urgent care clinic diagnosed her with hepatitis
+C. Thirty-five other patients became infected with hepatitis C
+at that hospital at the same time. A State investigation
+revealed that the outbreak began with a hospital staff person
+who used hospital syringes and painkillers during drug use.
+ Ms. Lollini is now convicted and sentenced to a lifetime of
+pain and suffering. How much is that worth? Is that worth
+$250,000? No. It is worth a whole lot more than that.
+ And what this legislation does is puts an arbitrary cap of
+$250,000 on noneconomic losses; pain and suffering. It is
+actually an affront to the United States Constitution, the 7th
+Amendment, which guarantees people a right to a jury trial when
+the amount in controversy is in excess of $20.
+ So, on one hand, we are talking about eliminating health
+care for everybody, and now we are talking about, 1 day later,
+we are talking about denying access to the courts for people
+who have been hurt.
+ That is about all I have got to say.
+ Thank you, Mr. Chairman.
+ Mr. Lungren [Presiding]. The gentleman's time has expired.
+ Next, the Chair recognizes Mr. Ross from Florida for 5
+minutes.
+ Mr. Ross. Thank you, Mr. Chairman.
+ Being from Florida, it is interesting, we did a little bit
+of research, and we saw that for an internal medicine
+physician, they pay as much as $57,000 for medical malpractice,
+but yet in Minnesota, they pay just a little bit more than
+$3,000, which makes you wonder whether the injuries are more
+severe in Florida than they are in Minnesota or whether it is a
+result of the litigation environment.
+ And what I would like to do is just step away from the
+substantive part of what we have been talking about and not
+talk about damages or awards, but let's talk about the
+procedure. For example, in my practice, I will probably say
+that the vast majority of my cases have resolved at the
+mediation level. Whether it be court-ordered or voluntary,
+mediation seems to work.
+ And I guess, Ms. Doroshow, I would ask you, would you not
+agree that dispute resolution, as opposed to an actual trial,
+is more efficient, more effective in getting the needed
+benefits to the injured parties?
+ Ms. Doroshow. Ninety percent of cases do settle, but it is
+because of the threat of a jury trial, the possibility of a
+jury trial, that that happens. You take away the jury trial
+option, and that won't happen.
+ Mr. Ross. I am not saying take away the jury trial, but I
+am also saying that when you are in the dispute resolution, a
+lot of factors come into play as to why you want to settle the
+case, whether it be because of the facts or the law. And in
+some cases, it is the burden of proof, is it not?
+ Ms. Doroshow. Well, the cases, the studies that I have
+looked at least, show that the cases that settle, there is
+negligence, there is error, there is injury. The cases that end
+up--the small number of cases that end up going to trial are
+the ones where it is a little more unclear, and they need a
+trial to resolve it.
+ So I think the system as it is right now is very efficient
+because most cases do settle. And that is really a system that
+really shouldn't be played around with. It is working now.
+ Mr. Ross. But in terms of burdens of proof, I mean,
+different jurisdictions have like scintilla of evidence as
+opposed to clear and convincing. And that, would you not agree,
+that a burden of proof will be a factor that comes into play as
+to whether you want to settle a case?
+ Ms. Doroshow. For example, in Texas, for emergency room
+injuries, they made the burden of proof so incredibly difficult
+that it has knocked out all--every single emergency room
+negligence case. So what has happened there is the state of
+care in emergency rooms has become much more unsafe. And that
+is sort of what happened there. So, yeah, it does vary, and
+State law does determine that.
+ Mr. Ross. Dr. Hoven, with the AMA, are there not practice
+protocols that physicians, groups, specialties, subscribe to in
+the performance of their duties?
+ Dr. Hoven. Thank you for that question. Yes.
+ The AMA has been upfront going forward in many years, in
+fact, since the mid-1990's, in terms of measures, development,
+quality guidelines, outcome objectives. We have had a major
+role in this, and it has been applicable. And it is now
+standard of care. These guidelines are extremely useful in
+allowing us for evidence-based care.
+ Mr. Ross. Not only extremely essential, but they sometimes
+lead to the practice of defensive medicine. In other words, if
+your practice protocol requires that if this diagnosis is made,
+then this form of treatment is required; sometimes physicians
+may do that even though they may not need to just to stay
+within the realms of the practice protocols.
+ Dr. Hoven. That is correct. And in fact, legislation needs
+to be out there that gives me, using my clinical judgment and
+my clinical knowledge, the ability to provide the best care for
+that patient at that particular point in time.
+ Mr. Ross. Then, Dr. Weinstein, wouldn't you agree that if
+we had established practice protocols and we required by way of
+the funding of Medicaid or Medicare that it is contingent--the
+receipt is contingent upon established practice protocols in
+each jurisdiction and those practice protocols are followed--
+and the burden of proof would then have to shift from the
+physician to the plaintiff to show that by way of either clear
+and convincing evidence that they deviated from the practice
+and protocols or committed egregious error, would that not in
+and of itself provide a substantial reduction in the amount of
+litigation and the amount of awards out there?
+ Dr. Weinstein. Well, I think that, first of all, all
+medical groups, including the AMA and others, have been working
+on guidelines, appropriateness criteria to help physicians
+establish a safer method of practice. But all patients don't
+fit in every single guideline. Patients are individuals. They
+have different comorbidities. And so they provide a general
+framework in which to start. But it is not a one-size-fits-all.
+Medicine is not like a cookbook that you follow this step and
+go this step. It has to be a physician interacting using their
+clinical skills to determine whether that guideline fits that
+particular patient or that appropriateness criteria needs to
+deviate for that.
+ Mr. Ross. And in those cases where practice protocols are
+employed, should not the practicing physician have at least the
+defense that the burden of proof would now shift--that the
+doctor has established that he did the following protocols that
+were required of that particular specialty, and now there must
+be a showing by a greater weight of the evidence, clear and
+convincing evidence, that then the physician deviated from or
+committed egregious error.
+ Dr. Weinstein. Well, I think--again, I am not a lawyer--I
+can only speak from a physician's standpoint--that the
+guidelines and appropriateness criteria are very good
+foundations for me as a practitioner to follow or to look at
+when I see an individual patient. But I have to use my skill
+and judgment acquired over, in my case, 35 years of practicing
+medicine, to decide if my patient fits exactly that paradigm.
+Otherwise, I need to have the ability to not have my hands
+tied. Otherwise, I am going to hurt my patient.
+ Mr. Lungren. The gentleman's time has expired.
+ The gentleman from South Carolina, Mr. Gowdy.
+ Mr. Gowdy. Thank you, Mr. Chairman.
+ Ms. Doroshow, I am going to ask you a series of what I hope
+are narrowly tailored questions in hopes of an equally narrowly
+tailored answer. Do you support any toughening of rule 11
+sanctions for frivolous lawsuits, lawsuits that are dismissed
+or lawsuits where summary judgment is granted?
+ Ms. Doroshow. I think rule 11 is probably sufficient
+enough, but----
+ Mr. Gowdy. But you do not support a toughening of that?
+ Ms. Doroshow. No, I would prefer that to ever taking away
+the rights of victims and the clients----
+ Mr. Gowdy. I may not have phrased my question well, so
+forgive me for that. Do you support a toughening of rule 11
+sanctions for frivolous lawsuits?
+ Ms. Doroshow. I think, obviously, I would have to see the
+provision. I don't have a problem with that, I mean, you know,
+in general.
+ Mr. Gowdy. So the answer is: You don't have a problem with
+that.
+ Ms. Doroshow. I don't have a problem with that.
+ Mr. Gowdy. You could support that.
+ Ms. Doroshow. Provided I looked at what you were asking me
+to support. That is a reasonable request.
+ Mr. Gowdy. How about this, how about joint and several
+liability reform. Do you support that or not?
+ Ms. Doroshow. Absolutely not.
+ Mr. Gowdy. Do you support a higher quantum of proof for
+emergency care?
+ Ms. Doroshow. Absolutely not.
+ Mr. Gowdy. Do you support any tort reform?
+ Ms. Doroshow. I support provisions that would repeal tort
+reform currently in existence in States, absolutely.
+ Mr. Gowdy. Do you support any tort reform?
+ Ms. Doroshow. For example?
+ Mr. Gowdy. Well, I just gave you four of them. We were 0
+for 4.
+ Ms. Doroshow. I support a law that would prohibit
+confidential settlements where there are public health and
+safety issues involved. I would support that tort reform.
+ Mr. Gowdy. Dr. Hoven, many of us oppose the current health
+care law because, in our judgment, individual mandate is
+beginning to make the commerce clause so elastic as to be
+amorphous. For those of us that want to support tort reform,
+draw the nexus for us, draw the connection where it is an
+appropriate use of congressional power to supplant State tort
+laws, and while you are doing it, do we also surrender the
+States determining scope of practice issues if you federalize
+tort reform?
+ Dr. Hoven. There is a role for both. The law we are talking
+about, the Health Act, in fact supports States in what they
+have already done and proffered and what they are putting into
+place. In States that don't have it, such as mine, Kentucky, we
+desperately need the Federal regulation, the Federal
+legislation to get us to a different place, for all of the
+reasons I have talked about before, which have got to do with
+access and cost.
+ So there is a role for both. But the Health Act recognizes
+that, I believe, and would achieve what we are looking for in
+the global topic of medical liability reform.
+ Mr. Gowdy. And when you say the Health Act recognizes that,
+you are referring specifically to the State flexibility
+provision that doesn't supplant current State law.
+ Dr. Hoven. That is correct.
+ Mr. Gowdy. Is there any concern on behalf of physicians
+that if you allow congressional encroachment, if you will, into
+this area, that Congress will also want to decide scope-of-
+practice issues between ophthalmologists and optometrists and
+nurse anesthetists and anesthesiologists and other traditional
+State issues?
+ Dr. Hoven. No. I mean, these are two separate issues. We
+fully recognize scope-of-practice issues. We deal with those;
+have been doing that for years and years. These are two
+different issues.
+ Mr. Gowdy. You don't think we lower the bar on the commerce
+clause at all by federalizing tort reform?
+ Dr. Hoven. I trust you.
+ Mr. Gowdy. I am a lawyer. Don't.
+ Final question. Implicit--actually, more than implicit--in
+some of the questions that have been asked this morning have
+been very thinly veiled accusations of health care fraud,
+Medicare fraud, Medicaid fraud, for what we consider to be
+defensive medicine. Would you take a crack at explaining the
+predicament that physicians find themselves in with this
+culture of litigation and defensive medicine?
+ Dr. Weinstein. Yes, I think that, as I sort of outlined
+before, as a physician, you have skills. History, physical
+examination. You put laboratory tests or imaging studies
+together to come and solve a puzzle for what is wrong with your
+patient or how to treat them. And then there is an orderly
+progression. If this turns out to be this way, I might go into
+in this direction or another direction. But what has happened
+is if you have this progression of multiple steps to get to the
+end, you don't stop at square one and say, let's see how it
+works; how does this treatment work; if they are not getting
+better, we will do something else.
+ What happens is, from the diagnostic standpoint, you do
+everything, because for fear that there is an adverse outcome
+or something happens, then you are at risk. So what happens is
+that the patient gets everything that is out there under the
+sun as opposed to just the stepwise progression toward an
+orderly either diagnosis or management plan.
+ Mr. Gowdy. I would like to thank all three panelists and
+thank you, Mr. Chairman.
+ Mr. Lungren. Thank you. The gentleman from Arizona, Mr.
+Quayle, is recognized for 5 minutes.
+ Mr. Quayle. Thank you, Mr. Chairman, and thanks to all of
+you for showing up. This is a very important topic if we are
+actually going to address and take control of our health care
+costs going forward. It is an important thing if we are going
+to have access to quality care.
+ My first question is to Dr. Weinstein. You state in your
+testimony that doctors in high-risk specialties have not only
+faced the brunt of abusive lawsuits but over the last decade
+have seen their insurance premiums rise exponentially. While
+some insurance premiums have leveled off recently or decreased
+slightly in some areas, they remain a serious burden for many
+doctors across the country. Moreover, with the implementation
+of the new health care bill, we may discover this has been a
+brief lull before the storm.
+ Can you expand on what you mean by the brief lull before
+the storm and why the insurance premiums might have been going
+off in a lull for a short amount of time?
+ Dr. Weinstein. I think that we are in a lull, if you will,
+until we see how the Health Care Reform Act plays out and what
+happens here in this body and across the way. But I think that
+right now we need to look at the provisions of that and what
+actually becomes law, what actually is implemented, to see
+whether there are other avenues.
+ You know, just in the State of Massachusetts recently Lee
+the Supreme Court I think reinstituted a suit against a
+physician who had prescribed high blood pressure medication for
+his patient. That patient subsequently had an automobile
+accident where someone was killed, and now the physician is
+being sued for treating the patient's hypertension.
+ So there are always avenues that can be pursued by the
+trial bar. This is a very fertile area. The front page story of
+the New York Times in November showed how hedge funds and
+investment banks are investing in medical liability lawsuits.
+This is big money. This is big business. And it is unfortunate.
+But I think with the new health care law, we will have to see
+how things unfold and what happens as to what avenues are
+opened by that.
+ Mr. Quayle. And staying on that with the high-risk
+specialties, and if you look at the aging doctor population
+that is happening, you don't have many people going into the
+profession, and especially in those high-risk specialties, if
+we cannot actually control those liability insurance costs, how
+will that affect the quality of care for these different areas
+of expertise?
+ Dr. Weinstein. When you lose high-risk specialties, I think
+every American is in danger when they have a problem--let's say
+in your State, Arizona, I think that was witnessed several
+weeks ago, unfortunately, but if you don't have the specialists
+available and have level one trauma centers available in a
+reasonable distance, you know, minutes matter. And I think the
+American public now can no longer expect that they could be
+traveling along a highway, have an accident, and expect they
+will go to an emergency room and be saved. That is an
+unrealistic expectation because of the shortage of high-risk
+specialists or, where there are high-risk specialists, their
+unwillingness to put themselves at risk by taking on high-risk
+cases.
+ Mr. Quayle. Do you know kind of the average, I mean, I know
+from talking to some people I know in the OB/GYN profession, it
+is over a $100,000 dollars, or in the area, just to turn their
+lights on. What is the average of some of those high-risk
+specialties?
+ Dr. Weinstein. Well, I think the ranges are significant. It
+depends on the State, but I think, in some areas, even in high-
+risk spine surgery, for example, you are having physicians
+paying several hundred--$300,000, $400,000--in liability
+premiums. I can't tell you what the averages are. They are very
+high.
+ Mr. Quayle. Dr. Hoven, I was just wondering, there is an
+enormous financial toll on doctors when they have to defend
+frivolous lawsuits, but what is the emotional toll, and how
+does that affect the doctor-patient relationship for that
+doctor going forward?
+ Dr. Hoven. It is very traumatic. Doctors want to heal,
+provide care, and take the best possible care. And when, all of
+a sudden, you are confronted with a lawsuit over which you have
+no control or you are part of something else in the suit
+process, it devastates you. I was sued. I tried to talk about
+that little bit ago. I was sued. For 5 years after that--and
+this goes to the issue of practicing defensive medicine--I
+refused to see--add any new patients to my practice. I found
+myself constantly thinking, what have I missed, what have I
+missed, what have I missed, even though I know I was bringing
+the best potential care there. This affects a physician's
+health. This affects their family's health. And most
+importantly, it begins to affect the relationship between the
+patients and the doctor, because all of a sudden, that threat,
+that fear of threat and trauma, is out there.
+ I consider myself a very good physician. And yet, in that
+process, I felt that I was damaged by the process.
+ Mr. Quayle. Thank you very much.
+ Mr. Chairman, I yield back.
+ Mr. Lungren. The Chair would recognize the Chairman from
+the Subcommittee that has jurisdiction over this issue, Mr.
+Franks from Arizona, for 5 minutes.
+ Mr. Franks. Well, thank you, Mr. Chairman.
+ Dr. Weinstein, I guess my first question would be to you,
+and perhaps, Dr. Hoven, you would follow up as well. Opponents
+of medical liability reform often argue, as you know, that
+reforming the medical liability system, especially through
+limiting noneconomic and punitive damages, will lead to the
+practice of medicine itself being less safe. I think that is a
+pretty critically important question to answer.
+ So, based on your experiences, do you believe that placing
+limits on noneconomic and punitive damages will affect whether
+doctors practice high-quality medicine or not?
+ Dr. Weinstein. No, I don't, sir. It is pretty clear that
+the current system we have neither protects patients who are
+injured, nor does it make the system safer. We are not a
+country of infinite resources. And when you talk about economic
+damages, those can be quantified; whereas, you talk about
+noneconomic damages, there is no way those are quantifiable.
+And without infinite resources, it does not affect the quality
+of care of systems such as that.
+ Mr. Franks. Dr. Hoven, do you have anything to add?
+ Dr. Hoven. Thank you. I would agree with the doctor's
+comments.
+ And I would also add that in this era, in the last 10 to 15
+years, medicine, physicians have taken huge leadership roles
+following the IOM report, for example, in moving medicine to a
+different place, improving quality, improving systems,
+diminishing errors. So this discussion about physician
+responsibility and liability in this setting is difficult
+because we in fact have made major, major strides in improving
+health care throughout this country.
+ Mr. Franks. Dr. Weinstein, I thought one of the most
+striking pieces of your written testimony was your discussion
+of how our broken medical liability system disincentivizes
+doctors from entering certain medical specialties and
+discourages others from performing high-risk procedures or
+treating really high-risk patients. How could legal reforms
+similar to the California's MICRA or the Health Act, which
+passed the House in 2003 here, positively affect a doctor's
+decision to practice in high-risk specialties or to treat high-
+risk patients.
+ Dr. Weinstein. Well, I think with reasonable reform I think
+physician culture will change. Physicians will then feel it is
+worth the risk. There is always a risk when you talk about
+high-risk medicine. But it is worth the risk to be able to use
+the skills that you learned in your medical school and
+residency training and your fellowship training to help restore
+function, alleviate pain, and restore life to individuals. But
+unless reform such as those previous ones you have outlined is
+implemented that just won't happen.
+ Mr. Franks. Dr. Hoven, I have to tell you, just personally
+I am extremely grateful to the medical community because of
+having them have a tremendous impact on my own life. I had
+major surgeries starting out at birth. So I think that, you
+know, the importance of allowing doctors to pursue that calling
+that they have to try to help heal their fellow human beings is
+a profound significance in our society.
+ If I could ask sort of a hypothetical or just sort of ask
+you to reach out, if you could do one thing--and Dr. Weinstein
+I'll put you on deck, too. If you can answer it, it will be my
+last question. If you could do one thing in terms of public
+policy that we might pass that would strengthen the doctor-
+patient relationship, that would allow you as a doctor to work
+better with your patients and would also deliver the best care
+possible where you would protect both the patient and the
+doctor and the entire medical process in terms of liability
+reform, what is one thing you would do? What is the one
+priority that you would tell us, if you could only have one?
+ Dr. Hoven. Thank you. Thank you for your comments.
+ And the answer to that is stabilization. The medical
+liability situation must be stabilized, and that stabilization
+includes addressing economic and noneconomic payments. It also
+has to remove from us in that stabilization the culture of fear
+and when somebody is looking over our shoulder all of the time.
+And that will improve and continue to enhance the patient-
+physician relationship. It will stabilize care in this country,
+it will improve access to care, and it will improve quality.
+ Mr. Franks. Thank you.
+ Dr. Weinstein.
+ Dr. Weinstein. And I would say we need a rational solution
+to this situation. Because, right now, it is irrational. Nobody
+has benefited from it. And unless we do have some type of
+stability injured patients will not get compensated
+appropriately, and the system will never get better. Because
+system errors require a system of transparency, and you can
+only have a system of transparency when you have a stable
+situation where everyone can work together toward the same end
+of making a safer health care system.
+ Mr. Franks. Thank you all for coming.
+ Thank you, Mr. Chairman.
+ Mr. Lungren. The gentleman's time has expired.
+ The gentleman from Virginia, Mr. Goodlatte, is recognized
+for 5 minutes.
+ Mr. Goodlatte. Ms. Doroshow, I would like to follow up on a
+question asked by the gentleman from South Carolina, Mr. Gowdy.
+One of the questions he asked you related to whether or not you
+would support a higher proof of negligence or substandard care
+for emergency care, and you said not just no but absolutely
+not.
+ So if we have--and all of us have at some time or another
+been in a theater, a sporting event, in a stadium or whatever
+where somebody becomes injured or ill; and the first question
+is, is there a doctor in the house. Now, you expect that doctor
+to identify themselves and come forward and help that
+individual. If they know very little about the circumstances,
+don't know what this patient's medical records are, previous
+history, treatment, what they might be allergic to, to try to
+save their life, you wouldn't provide a higher standard of
+protection for that doctor under those circumstances?
+ Ms. Doroshow. The standard is already pretty high. I mean,
+you're not finding lots of emergency room cases moving forward
+in this country. But when you do that--first of all, the
+emergency room, according to the Institute of Medicine----
+ Mr. Goodlatte. But you would support--you would support a
+higher standard of----
+ Ms. Doroshow. No.
+ Mr. Goodlatte. Well, that's the question he asked you--
+higher standard of negligence for somebody in an emergency
+situation.
+ Ms. Doroshow. Emergency rooms are the most unsafe and
+dangerous parts of a hospital. That is according to the
+Institute of Medicine. It is where many people go who don't
+have insurance.
+ Mr. Goodlatte. How about a theater or a sporting event or
+somebody injured in an accident on the highway where a doctor
+happens to be coming by to provide assistance?
+ Ms. Doroshow. I believe that the civil justice system that
+exists in this country is able to handle cases that go forward
+based on the State common law that exists, that has been
+developed by the State. If the State common law--and, frankly,
+if the State decides----
+ Mr. Goodlatte. Well, most--just reclaiming my time, most
+States have specific statutory liability provisions in addition
+to the common law.
+ Ms. Doroshow. Exactly. Look at Texas. What has happened in
+Texas is they have made the standard of liability for emergency
+room malpractice so high that it has knocked out virtually all
+cases. So you have a situation where a woman was in an
+emergency room, was misdiagnosed, as a result of that her legs
+have been cut off, and she cannot get an attorney.
+ Mr. Goodlatte. Well, I am going to reclaim my time because
+it is limited and tell you that you are again avoiding my
+question.
+ Ms. Doroshow. I am not.
+ Mr. Goodlatte. What about on the highway, in the theater,
+at the sporting event, out in public, away from a medical
+facility, if a doctor provides care, volunteers that care,
+under those circumstances, very different than an emergency
+room? But I agree an emergency room should be different than
+other standards of care as well. But in an emergency itself,
+should the doctor have greater protection?
+ Ms. Doroshow. I believe that the law should be what the
+State common law is right now.
+ Mr. Goodlatte. I am going to go on to another question.
+Thank you.
+ Dr. Hoven, some argue that lowering a doctor's malpractice
+liability insurance bill does not really lower health care
+costs in a way that benefits patients. I don't agree with that.
+What are your views on it?
+ Dr. Hoven. Well, I disagree with that statement as well. It
+is very clear that liability costs have to be something we can
+budget for and build into our costs of running a practice or a
+clinic. Money that I don't have to spend on liability insurance
+I can and do turn back into a practice to retain a nurse to
+provide care to 100 diabetic patients so that our costs are
+lowered. So I think that we have to be very careful in this
+phraseology. But, in actuality, if I can budget, I know what my
+monies are going to be, they are not out of sight, I can in
+fact improve care and quality and access to my patients.
+ Mr. Goodlatte. Thank you.
+ And, Dr. Weinstein, Newsweek magazine reported that younger
+physicians are especially frustrated with practicing defensive
+medicine. Between rising insurance rates, increasing defensive
+medicine, and the regulations in bureaucracy in the new health
+care law, are you concerned that in the future fewer of our
+best young students will choose to pursue medical careers?
+ Dr. Weinstein. Yes. I think the evidence there is very
+clear. And, again, this is borne out in the Pew Charitable
+Trusts study that was done by the Harvard Group and the
+ Columbia University legal team which shows that physicians
+in all residencies are discouraged, number one, to be doctors.
+Twenty-eight percent regretted even choosing medicine as a
+career. And that 81 percent viewed every patient they encounter
+is a potential lawsuit. I think this is a terrible state of
+affairs.
+ So there is no question that the younger generation is
+profoundly affected in their career choices, in their practice
+locations, and the context in which they practice, in other
+words, what they cut down their skill set to and what they are
+willing to offer the community in which they live.
+ Mr. Goodlatte. They can spend a lot of years and hundreds
+of thousands of dollars to receive a license to practice
+medicine. And the cost then of liability insurance and the risk
+if they have to make a claim against that insurance or more
+than one claim against that insurance to their future as a
+physician, what is that risk?
+ Dr. Weinstein. Well, I think the issue here is that you--
+there are plenty of people who need good medical care that
+aren't necessarily high risk. And if you feel you can have a
+satisfactory practice without putting your life and your family
+at risk by unnecessary liability many younger physicians are
+taking that route.
+ Mr. Goodlatte. And that is indeed the crux of the problem,
+that the quality of medical care and the availability of
+medical care is very much affected by the perception of the
+medical profession and the reality to the medical profession of
+the current standards with regard to medical liability.
+ Dr. Weinstein. Yeah. There is no question that access and
+quality of care are profoundly affected by the current
+situation.
+ Mr. Goodlatte. Thank you.
+ Thank you, Mr. Chairman.
+ Mr. Lungren. [Presiding.] Thank you very much.
+ I will yield myself 5 minutes.
+ I come to this like everybody else does, as a product of my
+experience. I confess to you my dad was a doctor. He was a
+board-certified cardiologist and internist. He was chief of
+staff of Long Beach Memorial Hospital in southern California.
+ I was his wayward son. I went to law school, but I spent 5
+years doing medical malpractice defense, although I did some
+plaintiffs' cases in southern California. My practice bracketed
+the time before MICRA and after MICRA; and for anybody to
+suggest that MICRA didn't make a difference, you weren't there.
+ I happened to be a young attorney at the time, and I had
+some classmates from high school and college who went to
+medical school, and they were about to enter the practice of
+medicine. And a number of them left the State of California
+because the insurance rates were so high. I remember a good
+friend of mine who is an anesthesiologist who left the State.
+Some OB/GYNs I knew left the State. Some doctors who were
+involved in brain surgery left the State because of the high
+costs.
+ I don't know where you get these figures that it wasn't
+until '88 that we saw any progress, because the absolute
+increase on a yearly basis of the premiums paid for by the
+doctors leveled off after we passed MICRA.
+ It was interesting to hear the gentleman from Georgia talk
+about the noneconomic damages. That is true. That is one of the
+key parts of MICRA. It puts a limit on noneconomic damages,
+pain and suffering. Why? Because that is the most potentially
+abused part of the system. I can prove losses for future
+earnings. I can prove what the costs are, the direct costs.
+ Pain and suffering, if you think about it, if before an
+instant you were to ask somebody how much would it be worth to
+you to lose your arm or your leg, they would probably say you
+couldn't pay me enough money to do that. After the fact, when
+you talk about pain and suffering it is a very difficult figure
+to determine. And so you make a rational judgment by the
+legislature or the people as to what that limit would be.
+Because, otherwise, it has an adverse effect on the potential
+for people having access to medical care.
+ I mean, it is not a perfect system. It never has been a
+perfect system. So I will just say from my standpoint, as
+someone who was there when we passed it in California, I saw a
+tremendous difference.
+ And then when people talk about frivolous lawsuits--let's
+talk about the real world. When a plaintiff's attorney files a
+lawsuit, begins the lawsuit, he or she sues everybody in sight
+because he or she can't be sure who was responsible. By the
+time you get to trial you ought to know as the plaintiff,
+plaintiff's attorney, who you think really is responsible and
+you ought to let out the other people. And if you don't we
+ought to have a very simple modified losers pay provision so
+that at the time of trial you can present to the judge and say
+if they have no case or they get less than what I am offering
+now all attorney fees and costs should be borne by the
+plaintiff.
+ Because I was in settlement conferences where the judge
+would say to me, I know your hospital or I know doctor C
+doesn't have any liability, but the cost of defense will be
+$10,000, so throw in $10,000. And that was considered a, quote,
+unquote, settlement.
+ In every case I am aware of, you have that dilemma. And so
+when you are talking about even real cases of malpractice, a
+lot of other people are involved in the case and they may
+settle out, but there was no real liability. And unless you
+sort of change that dynamic you are going to have this
+situation.
+ So I have to overcome my reluctance to do this on a Federal
+level because I thought California, we were ahead of the rest
+of the country when we passed what we did. You probably
+couldn't have passed MICRA on the Federal level at the time.
+ But I am sorry my friend from North Carolina is not here
+because he said very clearly to me health care is not covered
+by the commerce clause. So I would hope that he would make that
+presentation before the courts that are considering the
+lawsuits right now.
+ So I am sorry I don't have any questions for you. Just
+listening to everything I have to put it into my sense of--no,
+he said if someone is not taken care of across the State
+border, they are in a hospital here or a hospital there, that
+is not interstate commerce--that is what he said--it is not
+covered by the commerce clause.
+ Anyway, but having heard all of this it brings me back to
+the arguments that we were making in California in 1974 and
+1975. And we made a reasonable judgment in California. Frankly,
+I think it has worked very, very well. I think it is a model
+for the rest of the country. And I don't think there is any
+doubt that the specialties that are available in California are
+available in larger numbers today than they would have been had
+we not passed MICRA.
+ So there is no perfect system. I think we all recognize it.
+What we are trying to do is define that which will give us the
+best overall response to a continued problem. How do we meet
+our challenge? How do we provide health care for the people of
+the United States?
+ And the last note is I take my hat off to the medical
+community because I had major kidney surgery when I was four, I
+have had five knee surgeries, I have got a new hip, I have got
+a new knee, you repaired my Achilles tendon just a while ago. I
+am a walking example of what medical care can do for people in
+the United States. And my wife says, you are getting older; and
+I say, yeah, but I am getting new parts. So I just want to let
+you know, there is hope.
+ I would like to thank all of our witnesses for their
+testimony today.
+ Without objection, all Members will have 5 legislative days
+to submit to the Chair additional written questions for the
+witnesses which we will forward and ask you if you would
+respond to those please as quickly as you could so that we
+could make your answers a part of the record. If we send them
+to you, they will be serious questions from Members, some of
+whom weren't able to attend, some who had to leave, some who
+have more questions for you. And I would thank you if you would
+seriously consider that, all three of you.
+ Without objection, all Members will have 5 legislative days
+to submit any additional materials for inclusion in the record.
+ With that, again, I would like to thank the witnesses. I
+know it is an imposition on your time. I know we have to run
+off and do votes and so forth and you sit here. But we thank
+you very much for your testimony. It is very, very helpful.
+ And with that this hearing is adjourned.
+ [Whereupon, at 1:15 p.m., the Committee was adjourned.]
+ A P P E N D I X
+
+ ----------
+
+
+ Material Submitted for the Hearing Record
+
+ Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
+ Representative in Congress from the State of Georgia, and Member,
+ Committee on the Judiciary
+
+
+
+
+
+
+
+
+
+
+Prepared Statement of the Honorable Linda T. Sanchez, a Representative
+in Congress from the State of California, and Member, Committee on the
+ Judiciary
+
+
+
+
+
+
+
+
+ Prepared Statement of the American Congress of Obstetricians
+ and Gynecologists (ACOG)
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+ Prepared Statement of the American College of Surgeons
+
+
+
+
+
+
+
+
+
+
+ Study of the American Enterprise Institute (AEI)
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+ Prepared Statement of Lawrence E. Smarr, President/CEO,
+ Physician Insurers Association of America
+
+
+
+
+
+
+
+
+
+
+
+
+
+