pending before the committee for final adoption, not the hatch amendment, makes clear that any help outcome research shall notr of care. there's nothing gravely unique about the conclusions and

recommendation that's will come out of the center for health outcomes research and evaluation. the center will merely be one source of information regarding professional standards in the practice of medicine. there are many organizations today, academies of professional organization that's have studied and commented on what the standard of care should be in a particular medical situation. expert witnesses from both sides, routinely allude to these sources of information in their testimony. information on the relevant standard of care comes from professional societies, medical schools, studies done at nih and fda and other government agencies, learned treatises and journals and no reason to exclude information from one source if a court determines it to be relevant in a particular case. neither the center for health outcomes research or any other source of medical research sets

the legal standard of care. no organization or national academy sets it. many sources are considered relevant about what information was available to providers regarding a particular condition or treatment. also, staff reviewed this. it points out there's another flaw in the amendment as written, which might have been unintentional. the rules of evidence created by the amendment wouldn't apply to both sides. it says that the conclusions and recommendations of the center should not be used for the purposing of establishing liability. thus could not be used as evidence by an injured person to show malpractice. does not prohibit a defendant, a defendant, from using the same information as evidence to rebut a claim of malpractice. obviously this is unfair. the admissibility of evidence based on the centers research is

precluded. it certainly should be preincluded from both sides equally. that may be what the response of the amendment intended but the language would need to be clarified. i recommend we defeat the amendment. >> if i could, mr. chairman. >> mr. chairman, i would like to echo senator mikulski's concerns about the amendment. i appreciate senator hatch's interest and concern in the area. obviously enormously distinguished lawyer, one of legal luminaries of his home state but i would urge my colleagues to oppose this particular amendment for three reasons. first, this is the health care reform bill. and it seems to me to be an awkward platform from which to drill into an area that is con signed enormously to the discretion of our judges. it would be a colossal intrusion

into the judicial arena. the admissibility of evidence in a particular case is a determination that is very much the province of the trial judge. it is reviewed to an abusive discretion standard and highly unusual for anyone by stat constitute to try to intrude, it is one of core aspects of a judge's control of his on her own courtroom and of the trial of a case before them. i think it's a very poor -- i think we should vote against it for that reason alone. second, these medical malpractice cases reinvolve around expert temperaturstimony array of information to make the decision. it would be unique to take this

one particular source of information and say, well, you can't consider this in the courtroom any longer, it would statutory restrict one or the other and i don't think that adds to the accuracy or fairness ort integrity of the judicial proceeding in any way. it interferes in an improper way and as senator mikulski points out, a one sided way because it limits the use much information, only to establishing liability. it does not limit it if it's to be used as a defense. and therefore, it uniquely protects the defense side in the courtroom while leaving the plaintiff's side without a similar adjustment. i think it's inappropriate and uniquely disqualifies a piece of evidence without proper reason and i think it's one sided.

i would urge my colleagues to vote no. >> senator? >> i think a piece we left out of the bill is something that deals with medical liability, we're talking about costs. we've got to have some ways of con training the costs and i think a lot of people on both sides of the aisle recognize that that leads to a lot of dup my indication and this is one approach for solving that. we have looked at the -- in another committee we looked at the converse of that, which is protection from any liability suit if you were following the best practices of -- of cer or whatever we listed as best practices. some kind of protection so that they don't have to have to go to extraordinary lengths. one of downsides of doing that was if you follow the best practices, you can't be sued but then that encourages people

never to go outside of those lines. if they've got a special case, they won't go outside of those lines, they don't want to lose everything they've got. that isn't why they got into medicine. they got into medicine to help people but not totally their own costs and so we need to have something in this area that will take care of eliminating some of that dupli kaigs of doing extra tests, that will cut costs for us. i would support this approach, i think it preserves the physician/patient relationship, what works with one patient doesn't necessarily work with every patient. and we've got to let them practice medicine, that is one of discussions we had a couple of days ago in the walk-through. and when they do, they shouldn't be subject to the frivolous lawsuits, they are filed in a

low cost range. and that's because they know the cost of defending them is greater than the award they are asking for. and the insurance companies buy into that. and that's a different farm of insurance reform because that would be insurance reform for the liability insurance the doctors have to buy. that drives up costs and those lawsuits are increasing, not decreasing. this is one solution to that. >> mr. chairman? >> i said 25 years ago and the ama hotly disputed this, that my experience was that i believe at least that unnecessary defensive medicine was costing the health care system at least $300 billion. now, the ama kind of admitted that 60 billion. you could imagine what it really is. no doctor wants to admit there's any such thing as medical

liability and yet i've seen medical malpractice. those cases are always either settled or won. i know very few cases that are not won. now, all this amendment does and by the way i'm willing to the solve the problem, make it so it can't be used for plaintiffs or defendants. >> i know what's going on here. and i wasn't born yesterday. although, i'm very naive in a lot of ways, but all this says the research conclusions and recommendations shall not be used to define standards of care for the purpose of establishing liability in a civil action. i could put it either way, for plaintiffs or defendants. brought in a state or federal court or pursuant to an alternative resolution system against the health care provider. the health organization or manufacturers, distributor, supplier marketing promoter or

seller of the medical product. good lawyers know they don't knee comparative effectiveness group or as they call it here, to find the liability for them. they don't need that. why do we put in there? the distinguished senator from maryland, with whom i enjoy working and care for a great deal, she thinks that would prohibit the use of evidence. i don't believe that's true at all. it would prohibit the use of evidence that is conjureed up back here in washington. you know, and she mentions that what the democrats are trying to do here is not -- should not be construed as mandates for treatment. on the other hand, that's what's going to happen. and, of course, senator said this would be a kol osal said it

would interfere with the discretion of the trial judge. not really. it would be fair and it would acknowledge we shouldn't have bureaucrats in washington setting standard for medical liability cases. good lawyer will be able to bring his case without the people back here telling him what to do. i happen to know that's the case. as far as expert testimony, you know, the distinguished senator from rhode island said we shall not deprive the judge of just one source and that it would just protect a defense side. i'm willing to correct that. what i'm concerned about here is that we're getting in a situation where one of biggest problems i have with this whole health care situation, is that we're going to start through this kind of legislation that is very broadly written, very

liberal legislation, we're going to have washington, d.c. determine what happens in health care in this country. and that would be a disastrous outcome and the use of the health research and vaevaluatin group, the center for that, is just another way of bolstering the ability to bring litigation, which is killing us right now. and i don't think many people can rebut my position that a lot of those cases are frivolous in nature. and in fact, the vast majority of them are. but they're going to get paid because they're going to -- the insurance company is generally going to pay the defense costs rather than take the chance of a runaway jury. if somebody has a bad result, the doctor may not have done anything wrong at all, may have observed the highest standards of practice in medicine and yet gets hit for what could amount

to millions of dollars and ruin his career, his service and his ability. and doctors now are becoming so jumpy about the process that they're overdoing almost everything and those costs are passed onto all of us. and i'm not just talking about heavy duty high costly medical devices such as mris and c.a.t. scan, there's all kinds of other things that are done and that history the doctor has is kept with all kinds of details so if they get into court he cansy i did this, i did this, i did this and i did this and we still had this result. we did everything that's medically possible and we still had the result. what the language of the bill is and i'm willing to work with the committee on better language, if you don't like my language here, i'm willing to work with you,

let's see if we can work it out. but if we go with the committee language or should i say the democrat party language, that language is another government, powerful government-backed tool for medical malpractice lawyers to use to bring even more lawsuits than we have today. i think we should be putting safeguards towards mitigating these frivolous lawsuits rather than accentuating them, which is what the language will do, what the center will do, what the center's language will do and it doesn't help health care one bit, it doesn't help people to be more healthy all it does is pass on all kinds of stupid dumb costs to all of us in society as a whole. i don't think anybody can really make a very argument against that. we see it every day. in the medical profession.

that's one reason why when the president appeared before the american are medical association, he said some things they liked. but when he said that he wasn't for putting cap, i'm not sure caps are the best answer, but we had said that the doctors expressed disapproval. r

they can, rightly or wrongly, but mostly, in many cases wrongly, that happen to be costing our society an arm and a leg. and in medical liability cases, this is a flagrant area and i'm -- if i hadn't had some experience in this area, i might not have been as vociferous about it, but i've had a considerable amount of experience not only in this area but as i worked here with my colleagues on both sides of the floor to try and get health care bills that work, health care amendments that will help and get costs reduced. in this particular case, let me just make the point, one of the things you're having lots of difficulty with with this bill and the bill in the finance committee is without even scoring, with only preliminary estimates, the costs are running off the charts. as we predicted because of some of the ways of writing this

bill. where i think we can do health care at a minimum cost and and cover a lot of more people than we were cover with this bill. this bill isn't going to take care of 40 million people, not that any bill can. my friend from vermont thinks if we had a single payer system, we would take care of everybody and we would probably have some dispute over that. and care is in quotes, i would say. but what i would like to do is get rid of the frivolous suits as much as we can and not ax sent wait them by the language we have in this bill and by saying, you know, giving the center for health outcomes research and evaluation, the ability to set rationing. in health care, which is something i don't want to see happen and i think the american people want to see happen but

that's going to happen if this bill goes through in its current language it appears to me, mr. chairman, you may be able to get it out of committee with the current language and i suspect with the numbers you have, you will, but it's going to be one heck of a criticized bill. >> we're waiting for one more member to consider the amendment, but i note already this morning, we've adopted a number of amendment, some i agree with, some that staff is working on. that's the way the process works. let me just say to my friend and orrin hatch is a friend of mine, we've worked together on a lot of ins. as you'll recall, having been the author of the class action reform bill and private litigation reform bill, i've certainly written legislation here that's not endeared me to certain constituencies when it comes to what i perceive to be in many cases frivolous lawsuits, so i don't take a back seat to anybody in that area.

but the point that senator whitehouse and mikulski have made is this has been a subject of extensive discussion by the judiciary committee, it's a complicated area that is beyond -- >> not this matter. >> well, i understand-- >> litigation has been discussed but not this matter. >> i understand. but this is a matter here that really does go to the heart of judiciary committee jurisdiction for one. i just state that as a point, but secondly, any more that this is a decision by washington to preclude information, anymore by a decision by washington to exclude the information seems to me something we want to avoid and there's going to be, i'm certain, there will be at the appropriate place and time a full throated debate on the question of liability questions that will come. but it seems to me there's a better place for that to occur than in this committee on a matter like this.

so i would urge my colleagues respectfully because of our appreciation for the senator from utah's knowledge of this area, his years of involvement in this area, but respectfully urge hus to reject the amendmen. >> we have 12, chairman. >> yes, senator, may i be heard for four and a half minutes? >> certainly. >> you're looking very sprite, very strong today as opposed to yesterday afternoon where you should have received the golden medal for perseverance. i'm worried about who does this. i'm worried about i think the senat senator, senator mikulski said well established principles and i'm talking about cer, obviously. and nobody could be opposed to that. and the senator, she and i have worked on nurse legislation and

ever since i've had the privilege of being on this committee. and on other committees, i have nothing but the highest regard for her and who could be opposed to well established principles? who sets these principles? who does the research to basically come up with best practices? that defines what's in that pasture of accepted practices and what is not? as senator henrik stensonsenato why i said pasture because he's from wyoming. if the cer well established principles are within this framework. that provider knows if he or she strays into the next pasture in which he or she thinks that the patient and because of that

person's experience and medical profession, should be done, they're not going to do it for fear of several things. i don't know what cms is going to do to them that if fact, well, number one, you don't get paid, but number two, i hadn't thought opening up the floodgate of lawsuits until senator hatch had brought this up. and i guess my question is i don't know of anybody yet who has been able to tell me who is going to do the research and i will tell you that i do not think that cms has the body of researchers that can do this like fda, for instance, who has wide experience in this. and let's not forget that cms used to be something called hicva and everybody knows the representation of hicva and

prior to that it wwas somethinge and prior to that something else. what their job is and it's a terrible job. it's a much needed job. their job is to turn the red beans into black bean, they're bean counters and cost containment gets to be the primary factor. so regardless of what anybody said and i've got an amendment coming um later, cer means cost containment. if that's case and you're def e defining it and putting it in this category and you have people just waiting and salivating at the gate if you open up the gate in regards to lawsuits using cer which will be the golden tab will the that cms will use to come down from mount h 2 s to say this is what you can do and can't do with regard to practicing of medicine, you know there's going to be some lawsuits. i hadn't really thought about the depth or the -- i guess the extent of the problem.

i was more worried about cost containment in regards to denying care. i have an amendment to deal with that but i think senator hatch has brought up a whole different thing. can you tell me, sir, or can anybody tell me on the staff, how many people does cms have over there during the research to establish these well-established principles? >> senator roberts, could i respond. >> yes. i would ask you to respond. >> we've worked on this, on so many issues and you and i share a real passion for not creating bloated bureaucracies. so we've talk and it, remember when we know there's extensive hearings really on terrorism when you asked the fundamental question, who's in charge? i supported you and nobody could answer. >> you were princess leah and i was luke skywalker. >> you're right, but we don't weren't to be harry and louise. >> and we know who darth vader

is already. >> cms -- >> darth vader is the head of cms, that's the whole problem. >> senator roberts, cms is not in charge of the center for health outcomes research and evaluation. >> who is? >> the ahqr, the agency under the secretary charged with quality. that is where it is. and in the bill, it creates an agency within an agency there to see this. this is not at cms. >> has this outfit been -- i mean has posse been formed up, is it riding? >> the posse that's been formed up. let's say this, no, where the framework that is in existence was created during because of the stimulus package in which we vo voted for $1 billion to begin to do -- >> well, i didn't. but go ahead. >> for outcomes research and

replaced it with -- we create and interagency task force and put this in ahqr. $400 million of that research is already designated to go to nih. so it's not cms and bean counts. >> but yes, wouldn't nih -- i interrupt you. >> i'm just asking you to read the bill. >> say you have this -- kounds like an acronym for water or gold, maybe. but this doing this. and we establish money to do this and part of it is going to be farmed out to or contracteded out to nih which gives me a lot more confidence than cms, but the person who does the implementing will be cms. >> no, if you again go to the bill, which and what we affirm in the health reform bill is what we did in the stimulus package. and what we say in the stimulus package very clearly is that

nothing shall be construed in this legislation to impact on eith either practice or payments. so if you go to the language of the bill, you will see -- let me go to my notes here. in the stimulus package that we passed, we said nothing in this section shall be construed to permit the counsel, that's the interagency council to mandate coverage, reimbursement or other policies for any public or private payer. none of the reports submitted under this section shall be construed as mandates when clinical guidelines for payment, coverage or treatment. so we've already said this is simply consumer reports, almost

a version of consumer reports on comparative effectiveness or health outcomes and for clinicians or others, it's news that they can use. it is one source of the news. there's the institute of medicine, there's the national academies of pediatrics or cardiology, et cetera. so and it is -- in the agency for health care research and quality which has been around for more than 20 or 30 years. >> let me just say this. nothing in the bill prohibits cms from using cer to contain costs and it's peter orszag who is the omb director, obviously, said cer's principal purpose to is to retain cost,s a direct quote. the acting nih director said costs will be a key factor in cer it just seems to me that we need this amendment to ensure that cer is not used to ration health care.

>> peter orszag is not a member of congress. no matter what they might think. >> i'm going to do a hatch thing but i'm much louder than hatch so people don't listen to him. he's been doing this for a lot of years. now, i used to be a bucket toter, i was a bucket toter here in the senate for two year, went to the house, i was a bucket toter over there as a staff member. my box kathleen sebelius says you're in charge of health care. well i was in charge of everything, window, rug, administrative assistant, whatever else. agriculture, too. but every time that we would get into problems with our hospitals, our doctors, our home health care people, clinical la, everybody in the health care delivery system it was because of some goofy thing out of the hqs on a cost containment