like cer and cer, i'm all for this, in terms of what you said, well established principles. i mean i'm not opposed to to th can't do that i said be for it, maybe they'll give us the doctors. now that's kind of thing that has happened down through theiers. now when my amendment comes up, i'm going to give some specifics

and some of my conversation with kerry weems who used to be, i don't know if he's still around, the head of cms. what worries me is that okay, i am delighted to learn from my distinguished colleague and my very good friend that we have set up a new agency, if you will, to do this kind of research. i'm not sure that we have the people or the expertise to do it, but yet they contract out to nih, fine. but nothing will protect us from the fact that basically cms can use this language from cer and the thing that worries me is that this is going to become as i've said a tab will the coming down from mount h 2 s that will envelop all of health care, these are going to be the principles. if you're senator enzi's doctor and you get outside that pasture, that decision again is rationing.

i have personal experience with this in that regard. so that's my concern and i'm going to quit and i appreciate the time. >> very, very very quickly. >> i'll be brief because i'm prepared to vote. but look, there's no use kidding. we know that ahrq is there now. we all all know it's that going to cms and that cms is under tremendous pressure to cut costs and that's what's wrong with this language and bill. it's going to lead to rationing and and people getting less health and care than they get now. if i could ask one other thing, mr. chairman, i have to leave after the vote but i know our staffs have been talking about a few of my amendments, hatch 27, hatch 9 and hatch 21 as modified. my majority will consider those --. i'm ready to vote. >> i am considering those. just as i said over and over

again, i don't know of anyone on this committee who's for health ration i rationing, it's used all the time and it's not offensive. we're not for health rationing, we're for driving down the costs and deliver affordable health care and by frightening people by talking about rationing does not contribute to the debate. all in favor say aye. >> ask tour a roll call. >> clerk will call the vote. >> no. >> no by proxy. >> no. >> no by proxy. >> no. >> no. senator brown. >> no. >> senator casey. >> no. >> senator occasikagen. >> no, by proxy. >> senator murphy. >> no. >> senator whitehouse? >> no. >> senator enzi. >> aye. >> senator staalexander. >> aye by proxy. >> senator bird. >> aye by proxy.

>> senator mccain? >> aye by proxy. >> senator mikulski? >> aye by proxy. >> senator kennedy? >> no, by proxy. >> i thank the clerk. further amendments, senator robert, you had an amendment you wanted to raise or senator enzi. >> i have one i would like to discuss based on what we discussed over the weekend. that would be enzi amendment number 2. >> clerk will distribute that amendment list. >> this is something i've been working on with senator bachus for a long time and he and i have agreed on a bill and it gets into the same area of liability. we need to make sure that there's some reasonable about the for people that have been injured to get paid and to get paid quickly, but there also needs to be some protection for the doctors to make sure they stay in the field. so we've come up with an award

of grants to the states development implementation and evaluation of alternatives to the current tort litigation. this is that experimental area where they can do some different things and we've actually suggested a number of things that would fit into this area where it would develop an alternative to the current tort litigation it would promote a rediction of health care aerror by providing data to be collect and analyzed by patient safety organizations to improve the quality of health care so if fits in what we're doing right now. and we to do know that the curr litigation system doesn't work for the patients and the doctors. for the patients it takes too long, the doctors never know where they stand. we spend billions of years on unnecessary medicine that can even be harmful. one of the things possible under this amendment would be medical courts where there would be a series of courts where the

judges were familiar with medical litigation and would keep track of relative awards that are made right now under our current system, one person is hurt and they get the right jury, they get the right lawyer, whatever the combination is and they get a huge award. another person has exactly the same thing happen to them. they don't get that jury or that lawyer or that combination, whatever it takes. and they get nothing and that's not fair. so we tried to come up some kind of a fairness way and this would allow a variety of fairnesses to be tested over a long period of time and help us arrive at something. this doesn't put any cap on jury awards. it just gives some alternatives that could be tested out there that might reduce some of these medical costs by getting faster awards to the patients and giving the doctors some protection.

>> senator mikulski? >> well, first of all, this amendment would provide federal grants for states for private programs to elimb gninate the r it a jury trial. yes. this amendment provides grants to states to implement alternatives to tort litigation, well that might be interesting. but it would provide for federal grants to states for a pilot program to reeliminate the right it a jury trial for victims of malpractice. i'm taken aback by that. i understand all the discussion around malpractice, it's a worthwhile topic. i believe malpractice, medical malpractice should be the subject of the judiciary committee that has extensive

experience in this area and with the courts, et cetera. beyond, it is beyond the scope of medical malpractice, i believe, should not be a part of this debate, though of this committee, but anyway, by promo promoting health courts and other alternatives to the judicial system, the amendment could seriously have a negative impact on injured victims in its quest for efficiency, which i could understand. the amendment would deny these victims basic rights. jury trials are not an inefficiency to be circumvented. they're the heart of the american system. of the focus of health care reform should be improving on quality, we should not be taking this up. fair treatment for seriously injureded victims is the yardstick by which we should evaluate proposals that would dramatically change the current system for adjudicating medical

malpractice claims, i'm concerned are that by that standard the enzi amendment would fail. it would potentially deny the victims of malpractice the right to trial by jury and full and fair compensation for their injury, that's too far of a price to pay for administrative efficiency or looking at creative ways for all parties involved to look to alternatives to trial. >> on the face, it would seem that way, but there's a little bit more detail to it than that. and in order for them to use this kind of an approach, they would need both the agreement of the patient and the doc. and i suspect that any state that does anything in this area would also have some alternatives so that this could give a preliminary ruling and then they could take it to another court if they wanted to it isn't that specific that it

limits or eliminates any right it a jury trial. again, it allows the states to propose some alternative methods of swifter, fairer justice. that's what we always want. i'm sure the courts would play a big part in this and any proposal from any other state. but we've got to look at ways other ways of doing things. i thought about something specific but that runs into trouble, so i thai thought having the experimental situation of the states being able to develop possibility, put it into grant form, they've got to meet the requirements of their constituents in their states and i'm sure some of these objection raised would be taken care of in their proposals, they would have to be or they wouldn't be able to do

them. this has been an ongoing discussion but it is something that senator bachus and i have work and 0 for a long time and gotten to a point where we could agree on the principles and this is mechanism to see if we couldn't save some someone in area and get patients awarded quicker. >> mr. chairman, this will be an ongoing discussion about how to control health care costs but also to make sure that we're not injuring in the process the right it a jury trial, the right to fair compensation in instance where you have negligent or intentional conduct. if the objective here is to control health care costs and to reduce the incidence of lawsuits being filed that should not be filed, there are lots of ways to get there, i believe, without changing -- without going to

alternative ways to resolve disputes necessarily and also, of course, in my judgment by not going the direction of capping damages. for example, in pennsylvania, we had over the course of two governors, a republican governor and a democratic governor and several years within the general assembly, between the general assembly and what the governor can do and what the court system has done, they've adopted a series of changes as long as your arm, a certificate of merit, for example, so that before a lawyer can file a medical malpractice case, they have goat an expert opinion before they can file it. that's in place now and it's helped. change of venue requirements that you can only file the case after an action arose. that cut down on some suits. then court rule changes and

other legislative or regulatory changes. the point is there are ways to get to reform that don't deny people their day in court, don't arbitrarily cap damages and actually reduce the number of suits. i don't think the number of suits are as high as some would assert. but that's a point of dispute. but there are lots of ways to get there and not in ways that arbitrarily cap damage, not in ways that injure the right to a jury trial and not in a way that unfairly disadvantages those who have legitimate claims. i know we'll talk more about it but pennsylvania is a good model, not perfect by any means, but a good model of actions that a state government can take to deal with this problem. >> senator whitehouse? >> madam chair, i appreciate the

concern over costs and complexity that motivates this amendment, but i think we take enormous risks as a country if we interfere with the institution of trial by jury. trial by you're is provided for in the continues constitution, article iii, section 2, if i remember correctly. it's reinforced in the fifth amendment and seventh amendment. the best observers of our system of government have described it as one of the essential elements of the american democracy. alex alexis toqueville rode on what tempers the tyranny of the majority. in that there was a section of the juror in which she observes

the jury is a mode of the sovereignty of the people. says the institution of the jury places the real direction of society in the hands of the governed or in a portion of @@@r faith within the republican party that the institution of

the jury is a problem for america. i think they are deeply, deeply wrong. i think it is as much a political institution that allows the little guy a chance as it is a judicial institution and i think any efforts to interfere with it, trespass into very, very dangerous and problematic territory for our country. and i'd like to make just one more point if i may because it touches on another article of faith that has been raised here today and that is that there are an avalanche of frivolous suits that the insurance industry pays for because it's cheaper to pay the case than it is to defend it. that implies that an entire industry, a profit motivated and rational industry is making the calculated decision to pay for

the continuation of cases that they could end and get out of more cheaply if they simply stopped paying for so-called frivolousplies that the entire insurance industry is acting irrationally and against its interests in continuing to fund frivolous lawsuits by paying for them. i don't think that passes the test of economic self-interest. and so i know that there's a consistent effort from the other side to try to interfere with people's rights, interfere with the jury, i really think that it's an important place for america and for our history and put in historic context. i think it's -- we trespass in dangerous territory when we do this. i firmly believe. >> i appreciate the lecture on jury trials. this does not interfere with

jury trials. so that issue is not on the table. senator bachus wouldn't have signed on to this if it was going to eliminate jury trials. so the jury trial issue is not there. in order for any person to even participate in this, both the patient and doctor have to agree to going through this process and on page 4 they can opt out and voluntarily withdraw from participating in the alternative, that's a requirement of it. so that's a false stocking horse there. trial by jury can happen under this bill. we're not going to eliminate trial by you're if they want a trial by jury. now, what i tried to do when i worked with the senator bachus on this bill and what i'm trying to to do now is point out that there is a problem of medical liability driving up costs,

otherwise i don't think the president would have made that comment to the american medical association this week. you know, he doesn't just make a lot of extra statements. and that's something they were definitely interested in and it was something he said we would provide. i'm just trying to come up with, i hate it use the word, a very liberal way of doing it. you know, it's wide open to a lot of possibilities out there and none that i think violate what we're trying to do. and on the discussion about frivolous lawsuits, unfortunately most of the companies out there are taking a look at their bottom line and saying it's cheaper to do it this way than paying it off. i've had some cases when i was mayor that didn't have anything to do with medical if liability but my insurance company paid them off, i said no, no, these are ones we ought to take a stand on because it's going to lead to other suits that would

be very similar. they said we can't afford to do that. so it's a cost factor. and it will happen. and so somehow we've got to have a mechanism and i'm hoping that we can rely on the states to come up with a mechanism and then that will expand to all of the states without us even interfering. but this was the most liberal way that i could figure out to to have something that would deal with medical costs and have some possibility of working as. an experiment state by state. no state has to participate. all tats could participate. so i'm not going to be able to come up with a more reasonable way, but i hope somebody comes up with areasonable way of dealing with medical liability. ipdz where the donation come from and that sort of thing. i expected this kind of a difficulty on it. but not when i went this liberal. so. >> with all due respect, mr. chairman, i don't think

alexis detoqueville was affected by this. and i don't appreciate the suggestion mine was. >> don't have the wrerequisite numbers to vote on this. so we can continue the debate. >> i'd like to continue the debate because i think senator enzi says i don't -- he doesn't stifle trial by jury. i think we need to talk about that and i think we need to talk about what a health court is. it sounds great like a drug court. like a mental health court, et cetera. but really, what a health court would be, it would be a new entity emerging within our legal system and health courts don't have juries. okay? they don't have juries, they're like workman's compensation courts, if you will. so you don't have a trial by jury. and then there's this whole section of voluntary which is

where do you -- at what point do you choose when they're going to trial or when you're being admitted to a hospital. so we can continue that this afternoon. but i want to respect where senator enzi is going and also the extensive work he's done this with senator bachus. i'm just apprehensive about what a health court does. so let's continue that this afternoon. >> i may suggest 12:30, my intention is to take a break and come back at 2:30. let me just inform our colleagues. of this is the eighth amendment we've considered over the last couple of hours, some of them were agreed to obviously early on. >> why would they agreed to? >> well, it's -- i never suggested this was going to be at warp speed. obviously, this going to take time. and there's some 20 amendments i point out earlier that are in consideration. of the 59 that have been offered

to this title so taking those numbers together, we could arguably get almost to half of the amendments on this title of the bill. and that's not bad progress, it's not great, but it's not bad at all, i appreciate my colleague's attendance, by the way. we can't move on this unless people are here to have the necessary votes to consider and dispose of these ideas and suggestions and i certainly encourage member whose have amendments to meet with staff on both sides to see if we can reach some understanding and adopt as many as possible by consent. an then those that will require votes to have a good healthy debate about them and vote up or down and move along as our responsibility obviously in the

speaking. this is live coverage on c-span3. >> insurance premiums, we know that when states adopt liability reforms, malpractice premiums drop. since texas enacted the reforms, malpractice insurance premiums fallen for six straight years and directly translates to lower costs. the only thing my bill would do is encourage states for voluntary alternative ways of resolving disputes around medical care and the ultimate decision on whether or not to use this dispute method would lie with the plaintiff and the defendant, no one could be compelled to forego a jury trial. now, while i understand some may object to the idea in principle, what would you do instead to address the issue the president identified as a significant driver of health care costs? and i might add that senator bacchus recognized it as a

driver. we have other people interested in it, too. so it's an idea that's out there but i don't think that doing nothing is an answer. but that seems to be the approach we have embodied in the bill so far and a couple of suggestions on ways to solve that. there has to be other ways and so i'm hoping somebody can come up with a provision that would reduce the increasing medical liability costs driving up the health premiums and i'll withdraw my amendment for now. i may bring it up later. >> senator whitehouse? >> thank you, mr. chairman. i appreciate the ranking member withdrawing his amendment. i would offer a comment and an answer to his question. the comment is that i think the case that this allows the injured individual a meaningful

choice to stay within the american jury system would be better advanced if it didn't require the patient to opt out of the alternative to the jury system way early on, way before he or she is injured and in a way that, frankly, would allow the opt out to be buried in the fine print of medical and jury information. that would be suggestion of going forward with this idea. i don't think it's a legitimate opt out in the way that it's framed. just my view. in terms of how you get after this, well, the easy way to stop killing 100,000 americans every year with avoidable medical errors and underneath the tip of the iceberg of the 100,000 lethal medical errors is a larger portion of the iceberg of the sub lethal medical errors where somebody lost both legs instead of one or an extra month in the hospital or two because

of acquired infection or -- the litany of horrors is endless. >> i thank you very much. >> i think stopping that is very important. >> thank you, senator whitehouse. i love your quoting but we have to vote in a few minutes. >> looked up quotes in lunch. decided not to use them. >> thank you. we'll make him an honorary member of the committee for markup purposes. >> i would like to thank senator enzi for withdrawing the amendment. it was very gracious on his part rather than putting this through a lock step vote. i do understand the senator's direction to look at fresh and creative ways as we're also looking at the tort system. president obama in his speech to the ama even though there were a couple of lines like damages that got booed he said he wanted to work with the ama on this matter and ought to participate in that conversation and

obviously this is not going to go as fast as we thought and new ideas will emerge but i want to thank you for that. senator dodd, people did work during the break. i've got to thank both sides of the aisle for working on that. and i could go actually quite to some amendments that senator enzi proposed on comparative effectiveness that i'm willing to accept. >> that's good. >> so senator enzi, i would like to say, number one, i want to thank you for even more precise definitions and also, even sharpening their focus and it's this, you know, it's this kind of approach that brings intellectual rigor to the process which you have helped even more finely tuning about the parameters and number three, preserving the integrity of