may not, i have be an advocate of tort reform. in fact, i have offered legislation, i wrote the class action@@@@m@ tort reform issues at all. in fact, quite the opposite. here's my concern. i know my friend from new hampshire cites texas and california. the heart of his argument is that by putting caps on damages reduces premium costs. if i honestly felt that that were the case and that you get premium costs down, i would be hard-pressed not to support the amendment. the fact of the matter is every national study that's been done

regarding damage caps, the premium costs have not effected by it. >> they have gone down 30% in texas the last two years. >> well, this is just to give you what my perception is on this. between 2000 and 2003 there was a dramatic increase in the cost of medical malpractice insurance in states that already had damage caps and another restrictive tort reforms on statutes, on their books. no substantial increase in the number or size of malpractice judgments suddenly occurred, which would have justified enormous increases in the premiums many doctors are being forced to pay. now rates have stabilized again in both states with and without damage caps. the record shows the cost of malpractice insurance is affected much more by the investment earnings of the insurance industry than by the events in nation's courtrooms. studies show that medical malpractice premiums are not significantly lower on average in states that have enacted

damage caps and other restrictions on patients' rights in states without those restrictions except where there has been a limitation placed on the actual amount that insurance industry can charge. when that has been imposed there is an effect but on damage caps alone, there is no significant impact on these decisions. evidence clearly shows there's not a states torts laws which determine the rates. overall caps do not make a significant difference in the malpractice premiums which doctors pay. there are other factors which do. but the assumption somehow that by having caps or not having caps affects that outcome, it just, i say respectfully, is not borne out by the evidence. if i thought it were, you would find an ally in this effort. it seems there are other matters that do affect that, but damage caps really do not create that result. that's the heart of the argument. more than anything else. >> mr. chairman? >> senator coburn. >> i will produce for the record texas' costs have gone down each year for the last six years

since they introduced that. it's very close to a third decrease in the cost of malpractice insurance in the state of texas. so i don't know where you got your statistics and which legal organization put it out but it is not, in fact, accurate for the state of texas which has done it and we're seeing that happen in mississippi now, which they passed it two or three years ago. so -- but that's not really what i want to address. the very thought that when some doctor sued doesn't change their practice patterns is ridiculous. it does change their practice -- and if indeed they have done something wrong, it markedly changes it because they corrected what they did wrong. but when they didn't do anything wrong, it actually changes them more, because it moves the patient from a patient to a potential adversary. and having been through this

personally, i would refute much of what my colleague from rhode island said. the other thing i would have you know in the statistics quoted, doctors don't miss cervical cancer. cytopathologists do. the institute of medicine study which was an estimate which was not within the competence limit that it would not have happened by chance alone is nothing more than a guess. now, when you take the multitude of procedures, it's dangerous to be in a hospital if everybody does everything perfectly but when you look at those numbers in light of all the things that happen, the billions of procedures that happen in hospitals every year, we need to decrease that number. statistically speaking, unless you're one of the hundred thousand guests in terms of any other area that we have an expertise in the field of science, we are doing well.

let me tell you what happens to you when you have experienced this, and it totally changes the way you practice medicine. i don't know if senator gregg's numbers are right. what i do know is the cost of defensive medicine is in excess of $300 billion a year, based on a study by the american medical association, it's been extrapolated forward from 1993, i think. but here's what happens. you stop thinking about the patient and you start thinking about how do i cover myself in case something doesn't go right. you undermine the confidence in the physician so that now they're spending dollars, very scarce resource dollars, on patients that they don't need. and actually it hurts them because when we order a ct scan on somebody that doesn't need it, when we do a test on somebody that they don't need

it, we're spending money and we're also putting them at risk. one of the things we ought to do is find out, good addition to this is a study of what is the cost because there's not a current study out there on what the cost of defensive medicine is. but i can tell you it's high. i can tell you i do it all the time. because to not do it, you lose your insurance because now the insurance companies are saying you have to have done to this standard level even when it's not necessary. so here we have another attack on the art of medicine when we know we are patient well and i will give you one quick example. if you have a child who plays baseball, much like bob casey plays baseball, gets hit on the head with a baseball, every one of those kids now that hits an e.r. in the united states gets a ct. why do they get a ct? because the e.r. doctors are

absolutely afraid even though they have a totally normal neurologic exam, even though they have good parents at home, even though they think they will follow signs of onset of coma or change in behavior, even though they know that, they get a ct. now, multiply the number of kids in this country that get hit on the head with a baseball every summer in this country and add to it $1500 of which less than 1% are indicated, you're coming up with hundreds of millions of dollars just for baseball in this country. whereas the prudent man would say parents, here are the things you have to watch in this child. there is absolutely no neurologic sign that your child has been significantly injured, but if any of these five things start happening, i want you to come back here immediately. that's not good enough anymore. in a court of law. why didn't you do the ct. so everybody gets the ct.

now the average obstetrical patient gets four ultrasounds. twice as many as they need. why? because you've got to demonstrate that you did an ultrasound in case something's wrong. then i'll talk about one other thing, called cerebral palsy. what the science tells us now is 97% of it occurs in utero. doesn't have anything to do with the birthing experience yet every year in courts across this country, we're rewarding hundreds of billions of dollars for something that was nobody's fault other than an accident of reproduction. or progression and the maturation of an infant. yet a doctor changes his practice forever because of that. we pay out tremendous dollars and we raise the cost of health care for everyone. so to sit and say that this is an attack on the legal system and our foundational principles

is inaccurate at best, but also reveals there's a complete lack of understanding what's actually going on out there. somebody who has experienced it. here's the other side of costs that you don't know. every doctor that gets sued in this country is going to spend about three weeks not practicing medicine and paying lawyers to give depositions for both his own defense counsel and the plaintiff's counsel, and then at a minimum, is going to spend another two or three weeks in court. and 80% of those suits are absolutely frivolous. absolutely frivolous suits. they're not somebody cutting off the wrong leg. they're frivolity. so i don't like senator gregg's amendment because i don't think we really have any business

telling the states what to do on their malpractice. if they want to fail, they ought to have the right to fail. at least i'm consistent. but if we're going to do a policy where we're going to address access, we ought to address it all. and so i appreciate him offering this because it raises the issue, but i also know how powerful the trial bar is in this town, and how unlikely we are to get this, and how lucky they are in california and texas that they have now applied some sort of common sense, some sort of common sense to this addiction of forced perfection rather than practical standards. >> senator casey? >> mr. chairman, i'm going to propose the amendment and this is going to be a debate that will go on for a long time in a lot of different context, in this committee and with regard to this bill. and with regard to other bills as well.

just to make a couple brief points, this is in no way -- we don't have time for a fully developed argument, but the premise of a lot of these efforts that i think is the foundation of senator gregg's amendment is to somehow control health care costs. i think there's a lot of mythology about what's the relationship between this issue on capping damages and health care costs but also, mythology about how you do it, but just to read you one statistic, just in terms of costs. the cost of medical malpractice premiums constitutes less than two-thirds of 1%, basically .66% of the nation's health care expenditures each year. for example, then it goes on to talk about total costs being just under $2 trillion and all

the medical malpractice insurance premiums total about $11 billion. so i think the cost number there is a myth. there are lots of arguments to support my position but one thing that always comes back to me is if you're going to say that in a situation where there's negligent or intentional conduct that leads to injury, serious injury, if you're going to say that you can have no, and i believe punitive damages help and i support them when a jury imposes them. but if you're going to say that you can only get, say, economic damages, you cannot get damages -- you cannot have punitive damages or damages for pain and suffering, what you're saying, for example, to -- let's say there's a woman who for a variety of reasons was not in the work force for a long time,

didn't develop earning capacity because she was at home for many years and didn't work outside the home. what you're saying to her when you have these laws that are passed to limit her damages, because you don't have -- your earning capacity is limited, you're limited to what that capacity tells you. on top of that, you're not getting anything else, no matter what kind of pain and suffering, no matter how permanent your injuries are, you're getting nothing except this cap. i just think that's totally unfair. this is a philosophical difference. you either believe that people should be compensated in accordance with what a jury would say, or you don't. some people don't think juries make the right decisions. i have a lot more confidence in the system. i also know that in our system, there are procedures for if there's a jury award that goes beyond the bounds of reason,

judges have petitions and judges can respond to petitions to reduce a jury award. but it's just a philosophical difference. you either believe that someone should be awarded damages for pain and suffering or you don't. or awarded damages that are punitive in nature. it's a basic philosophical difference and the big divide here. >> mr. chairman? >> i think that's evident. >> mr. chairman? >> mike enzi, please. >> i appreciate the senator from new hampshire bringing this up. there's a part here that i think we're missing the point on. we're talking about access, access to a doctor, and i've got to just mention one brief story. we've got the town of wheatland and the town of douglas and they are 70 miles apart, and there used to be one ob-gyn that served them both until a couple years ago, when in the middle of a basketball game at halftime,

he announced his retirement. and the reason he picked that @> no access. you can have a midwife or something deliver the baby but you couldn't have an ob-gyn. >> my point, i'm not debating at all about whether or not the premium costs are skyrocketing and it's having an effect on the number of ob-gyns or others. i've had a series of town hall

meetings in my own state and had physicians bring up this matter and talk a lot, i can't remember the exact numbers but they're staggering numbers, the premium costs. i'm not disagreeing about the fact that this is having an impact. the question is why is it having an impact. to parrot my friends from oklahoma, you got the right issue, just got the wrong solution. again, based on a lot of states have caps on damages. california has caps on damages. they also give the insurance commissioner the right to regulate and control premium costs. so in texas, there are a lot of variables in addition to the caps on damages that have an impact. but the national studies show that where there are caps and damages and where states don't, there was no significant difference in the premium costs. they're still going up. so the idea that this solution solves the problem is my difficulty with the amendment. not that the issue's illeg mate.

it's a legitimate question. the problem is how do you address it. i don't believe this is the answer, castigating the legal profession, but it doesn't do justice to the issue. it seems to me you've got to have and studies indicate this and as i say, i'm not a stranger to be supporting tort reform at all. i know others never -- want to support every tort reform that comes along. i'm prepared to be supportive of matters that i think make some sense. this one i just tell you, the work i've done on this issue, i don't see the correlation. i think it's a legitimate issue. i think premium costs do impact but the idea that this is all associated with the trial bar and the lack of caps on damages, i don't think holds up. >> i don't think anybody is saying it's all related to that. for the record, here is texas medical association. liability costs have defined 27% since 2003, they have saved $322

million per year by texas physicians in insurance costs since they put the cap on. i don't know what study -- i would love to see the studies you're quoting and see if they actually include the three states now that truly have caps. if you blend those three states with everybody else, i'm sure you're not going to see any effect. but if you look at the three states that do have caps, you will see an effect. that's for the record. that's straight from the texas medical association. >> mr. chairman? >> yes. senator whitehouse? >> even if it were efficacious, i still think that it is completely wrong because it puts 100% of the cost of this social problem on the woman who's coming home from the hospital with a disabled baby who she's going to have to take care of for the rest of her life, with the woman who is coming home from the hospital with a disfiguring injury that she will carry for the rest of her life,

the woman coming home from the hospital, coming home from the doctor's office, being told that she's dying of cancer because of a missed diagnosis. those are the people who are going to suffer when their damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, i'm reading the amendment now, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, et cetera, et cetera, et cetera can't be adequated ely compensated. why we have to put 100% of the cost on that woman, i don't understand and even if we did save millions in texas, guess who paid?

>> i thank my colleague. this is an issue where -- there still is the issue of premium costs which are high. my point being simply that the correlation between that and caps on damages does not square up in my view. anyway, this is a subject matter, senator casey has said has been around for a long time. it's not going to go anywhere. this debate is here. lisa, i see you. >> you have suggested this isn't necessarily the solution and it may not be the solution for the high costs that we experience with health care, but i think it has to be viewed as a piece of it. when i met with a group of doctors when i was home on friday, we would kind of go around the room saying okay, within your practice, what are the things that you can do, that we can do, you can do from your side and we can do from the

federal side that would help reduce the health care costs that we experience here in anchorage, alaska. and whether they are a family practitioner or whether they are an orthopedic surgeon, their response was we've got to get ahold of what's going on with the medical malpractice, and not one of them in that room had had a situation where they had -- there had been a claim that had been filed against them that went against their record, if you will, or against their good name, but they pay for it. and as tom has mentioned, it's the frivolous claims that are filed, it's the claims where you got to blame somebody and so you'll blame the doctor, and it causes an escalation in the costs because the doctors do

feel that they have to practice defensive medicine, preventive medicine. more defensive than preventive, and ordering things that they would otherwise not do. so there has got to be some element of how we deal with the malpractice issue as a driver of health care costs. and to suggest that the costs argument is a myth, it's not to any of the practitioners that i was speaking with on friday. it is very real and very tangible. we have all got our stories about driving the 70 miles but in most of the communities in my state, they are not road accessible so when my sister was pregnant with her second child, she was living out in dutch harbor at the end of the aleutian islands, practically

and the protocol is six weeks before your delivery date, you have to come into town. well, town is anchorage, 800 miles away, about a $1,000 plane ticket, and then you're in anchorage and you got to either bunk with friends in your last six weeks of pregnancy or get a hotel and we will probably never have a full-on ob-gyn out in dutch harbor but our reality is there are cost drivers that don't allow for the level of care that we would like to see and we see it demonstrated in our rural communities all the time. i think we have got to do something, if it's not senator gregg's bill that we've got in front of us, we've got to be doing something to acknowledge that medical malpractice is an issue and it's a cost driver and if we can't -- and the president

recognizes. there's a head line in i don't know if it's today's paper, obama opened to reining in medical suits, bargaining chips seen in health overhaul. i think we've got to be talking about it. >> well, as i say, again, when the physicians raise the issue, i think the issue is raised in the context of the cost of the health insurance or the premiums they pay, and the assumption is the premiums are going up because of the litigation issues. and i don't -- i understand the issue about their premium increases. i just think it's misplaced in the sense that it's because of the malpractice suits. i think there are other more important factors but we have debated this -- >> one last point. there is a good study published in 1996 by a former fda commissioner and future fda commissioner by the name of kesler and mclellan.

here's what it showed. if in fact you did do this, this is in '96, you would save between $60 billion and $109 billion a year. $60 billion and $109 billion a year. that was in '96. that equates to about $300 billion to $400 billion right now. >> savings in what? >> in terms of the cost of defensive medicine. tests that are ordered that nobody needs except the doctor fearing they are going to get sued for something or extorted. it's really, you know, i'm going to be really frank with you. we have half the lawsuits filed in the hopes that somebody will get scared and have to spend more on lawyers than it will cost them to settle it. that's the system that we have today. so there's no basis to the claim other than to make you spend money on your own lawyers so you settle for $60,000 or $100,000 so you don't end up having to spend more on that on lawyers. so what that study said published in 1996 is back then, between $60 billion and $109 billion a year just in defensive medicine costs if in fact you had some type of -- that's not

necessarily what judd had in his bill. it just said some type of limitation. they didn't even quantify the limitation. >> thank you. any further debate on this? all those in favor of the gregg amendment say aye. those opposed, no. the noes appear to have it and the amendment is not agreed to. >> mr. chairman? we are ready to accept murkowski amendment number 23 as modified. >> want a roll call? they do want a roll call vote. i was under the impression we did not want a roll call vote. sorry about that. the clerk will call the roll on the gregg amendment. >> senator dodd. >> no. >> senator harkin. >> no. by proxy. >> senator mi cull ski. >> no. >> senator hingeeman. >> no by proxy. >> senator reed? >> no by proxy. >> senator brown? >> no by proxy. >> senator casey? >> no. >> senator hagan? >> no by proxy. >> senator berkeley? >> no.

>> senator whitehouse? >> no. >> senator enzi? >> aye. >> senator gregg? >> aye. >> senator alexander? >> aye. >> senator burr? >> aye by proxy. >> senator mccain? senator hatch? senator murkowski. senator roberts? >> the senator is recorded. senator, would you like to be voted as aye? >> chairman kennedy? >> no by proxy. >> 14 ayes -- or no, 11 ayes, 14 noes. >> the amendment is not agreed

to. senator murray? >> mr. chairman, we are now ready to accept murkowski number 23 as modified. ask unanimous consent it be accepted. >> any objections to senator murkowski number 23 as modified? without objection, the amendment is agreed to. next up? >> mr. chairman, we have a meeting. >> do you have a meeting. maybe it's just as wise at this juncture. my view would be as i said earlier, i know our republican friends have a meeting to attend. >> if i could ask, i know the republicans are going to leave, how many more amendments we expect on this? >> i have no idea where we are -- four? judd, do you have any further ones on this one? this section? >> on this title? >> so we have four -- >> we have four more. we will come back. i will aim to reconvene at 5:30 but ask the senators to keep me informed, if the meeting goes

longer, let me know. we will try to come back in. if we finish up that and if the members are prepared as well, we may take a break for dinner. i will leave it up to the advice of my colleagues or just go straight through and deal with the fraud and abuse. >> am i correct we will reconvene at 5:30? and we will have four coburn amendments and that is the remaining amendments? >> that's what i have been informed, four remaining amendments in this section. then we will go to the fraud and abuse section for this evening and leaving open tomorrow based on the ability to have scoring on the question dealing with the long-term care issues. >> mr. chairman? >> senator whitehouse. >> just one technical question. i thought i heard the clerk say the vote w1b