vote:

the presiding officer: on this vote the jayce are 96 -- the yeas are 96. the nays are zero. under the previous order requiring 60 votes for the adoption of this amendment, the amendment is agreed to. the senate will be in order. there will now be two minutes of debate equally divided on the johanns motion to commit. mr. baucus: madam president? the presiding officer: the senator from montana. mr. baucus: this is very simple. a vote for the johanns amendment is a vote for the status quo. that means seniors continue to

pay higher premiums, higher cost sharing due to wasteful overpayment. a vote against johanns means we can extend the solvency of the medicare trust fund that helps seniors and helps benefits. a senator: the senate is not in order? mr. enzi: the senate is not in order. the presiding officer: the senate will be in order. please take your conversations out of the well and outside. mr. enzi: senator collins. the presiding officer: the senator from maine. ms. collins: madam president, home health care is a compassionate, cost-effective alternative to institutional care. it allows our seniors to receive care just where they want to be in their own homes. under this bill, home health

care would take a disproportionate cut. madam president, let me quote a home and health care director in my state who sums up what the approach will be, what will happen if this motion is not passed. she says, "our staff is scared, but it is our patients who will pay the price if congress makes cuts in home care." madam president, i urge support for the motion to recommit offered by the senator from nebraska. the presiding officer: the yeas and nays have been called for. is there a second? there appears to be. the clerk will call the roll. vote:

vote:

the presiding officer: are there any senators in the chamber wishing to vote or change their vote? in that case on this vote the yeas are 41, the nays are 53. under the previous order, requiring 60 votes for the adoption of this motion, the motion is withdrawn. a senator: mr. president? mr. president? the presiding officer: yes? i'm sorry. i'm sorry.

the senator from nevada. mr. ensign: i have an amendment at the desk. the presiding officer: the clerk will report. the clerk: the senator from nevada, mr. ensign, proposes an amendment number 9127 to amendment 2786. mr. ensign: i ask that further reading be dispinsed with. -- dispensed with. the presiding officer: without objection. the senate will be in order. mr. ensign: thank you, mr. president.

the amendment that i'm offering today is an amendment on medical liability reform. the presiding officer: the senate will be in order, please. mr. ensign: i believe that meaningful medical liability reform should be included in any overall health care legislation that we do this year. i have a separate bill from this amendment, a complete comprehensive medical liability reform that i've introduced earlier known as s. 45. it's an effort -- in an effort, though, to find xri mierksz i'm offer -- compromise, i'm offering this amendment today. this amendment was originally offered by edward kennedy in 1995. while many of the members of the senate were not here in 1995, 21 members from the other side of the aisle who were the majority at the time supported this

amendment. those members included, senator akaka, senator baucus, bingaman, boxer, byrd, conrad, dodd, dorgan, feingold, feinstein, harkin, inouye, kerry, kohl, senator lautenberg, leahy, 11, mikulski, murray, reid, and senator specter. i would hope these members would continue to support senator kennedy's amendment from 1995 today. clearly the issue of medical liability reform is even more pressing than it was back in 1995. we, as americans, spend more money on lawsuits than any other country in the world. and more than twice as much as all but one other country. and, according to a recent nonpartisan study, the direct cost of health care lawsuits is around $30 billion a year. that's a direct cost to our

health care system is around $30 billion a year. now, these costs are multiplied by indirect costs, especially doctors ordering costly tests out of fear of being stewed. estimated money spent on unneeded tests range frdz dz 100 billion annually to $250 billion a year annually. let me repeat the numbers. in unnecessary tests, the estimates are as high a as $100 billion to $250 billion in unnecessary tests by doctors annually. most of those because of out of fear of lawsuits. and in 2006, in the "new england journal of medicine," suggests in this article that as much as 40% of medical liability lawsuits are without merit. medical liability insurance premiums are threatening the stability of our nation's health care system. these rates are forcing many

physicians, hospitals, and other health care providers to move out of high-liability states, limit the scope of their practices and even to close their doors permanently. mr. ensign: this crisis is affecting more and more patients and is threatening access to reliable, quality health care services. i have a good friend in southern nevada who practices obstetrics. in his practice he specializes in high-risk pregnancies. because of the medical liability problems that we have seen in the past several years, his insurance company limits the number of high-risk pregnancies in which he can assist. so you have one of the best doctors practicing obstetrics because of the fear of lawsuits by his insurance company. they limit the number of pregnancies -- high-risk pregnancies in which he can assist in. if you are a woman and you're

pregnant with a high-risk pregnancy, it would seem to me that you would want the best doctors tyke care of you -- to take care of you. this only makes sense. however, because of the medical liability faces -- we are facing in this country, the best of the best are limited to the number of cases in which they can handle. because of the unaffordable medical liability premiums, it is now common for obstetricians to not even deliver babies an just practice gynecology. and for other specialists to no longer provide emergency calls or to provide certain high-risk procedures. ask yourself this question: whan need of a high-prisk procedure? what if you were a woman in need of a high-risk procedure and could not find a specialist to provide you with the care that you needed? the medical liability crisis is threatening patient access to reliable, quality health care services all over america?

additionally, costly medical liability insurance premiums have forced some emergency departments to shut down temporarily in recent years. in my home state of nevada, our level 1 trauma center was closed for ten days back in 2002. this closure left every patient within a 10,000-square-mile radius unserved by a level 1 trauma center. 10,000-square-mile area, excuse me. unfortunately, jim lawson was one of those in need of trauma -- of the trauma unit at the time. jim lived in las vegas, was just one month shy of his 60th birth day. he had recently returned from visiting his daughter in california, and when he returned, he was injured in a severe car accident. jim should have been taken to the university medical center's level 1 trauma center. unfortunately, it was closed. instead, jim was taken to another emergency room where he was to be stabilized and then

transferred to salt lake city's trauma center. tragically, jim never made it that far. he died that day due to cardiac arrest caused by the blunt force from physical trauma. why was nevada's only level 1 trauma center closed for those ten days? due to a simple fact. the to come ters coul doctors cd medical liability premiums and there were not enough doctors to provide the caremen care. ultimately the state had to step in and take over the liability for these doctors and this level 1 trauma center in order to reopen this level 1 trauma center. more than 35% of the neurosurgeons have altered their emergency or trauma call coverage because of this medical liability crisis that we have in america. this means that patients with head injuries, those who are in need of neurosurgical services must be transferred to other facilities, delaying much-needed

medical care. dr. alamo of henderson, nevada, brought another example to my attention. dr. alamo was presented with a teenager suffering from myastinigravis. she was in a crisis at the time and needed immediate medical treatment. because of the medical liability situation, however, there was no emergency neurologist on call to assist this young woman. dr. alamo called several in the area and none of them wanted to take her case because of the medical liability situation. so dr. alamo had the young woman transported to california by helicopter to receive the medical care that she needed. just imagine if that was your daughter or some close friend or relative was suffering from this situation, how would you feel? these kinds of situations should not happen and should not be forced to happen because of medical liability problems that we have in america today.

stories such as these are all too common in america today. to address the growing medical liability crisis in my home state of nevada, the state enacted legislation that included a cap on noneconomic damages and a cap on total damages for trauma care. several other states have enacted similar reforms.. this should not be a republican or a democrat issue. this is fundamentally a patient issue. simply put, the current medical liability crisis means patients cannot find access to care when they need it most in many areas. and without federal legislation, the exodus of providers from the practice of medicine will continue and patients will find it increasingly difficult to obtain the care that they need. so as we work on a comprehensive health care reform bill, one of our primary goals must be to enact meaningful medical liability reform, to help ensure

patients the access to the care that they need. as you know, president obama addressed the intiefer congress on health care reform back in september. during his speech, he said -- and i quote -- "i don't believe medical malpractice reform is a silver bullet, but i've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. well, i think that's quite an understatement. talk to health care providers. it's just -- it just not may be a contributor to unnecessary costs, that it drastically contributes to unnecessary costs. the president went on to say that he asked secretary sebelius to move forward on demonstration projects in individual states to test ways to put patient safety first and let doctors focus on practicing medicine. let's face reality, though. there is no doubt that defensive medicine occurs.

every day and that the costs to the health care system are staggering. and as i mentioned earlier, tens if not hundreds of billions of dollars are wasted of year due to the prosecute of defensive medicine. largely in an attempt to avoid frivolous, junk lawsuits. so just think of how many uninsured patients we can take care of with that money or how much cheaper premiums will be for those who currently have insurance. we must stop playing games and start doing something real to address this important health care issue. unfortunately, the underlying bill does not meaningfully address medical liability reform. it only contains a toothless sense of the senate. this sense of the senate notes that congress should consider establishing a state demonstration program -- should consider establishing a state demonstration program to evaluate alternatives. this is just window dressing that does nothing.

let's be honest with ourselves. this sense of the senate is just bluff. it ignores the substantial progress that many states have already made with medical liability reform. capping noneconomic damage awards has been highly successful in a number of states, such as texas, and is something that we should consider as part of health care reform. but if we cannot reach a consensus on this, then we should at least follow senator edward kennedy's example and limit the amount of attorneys' contingency fees as an important first step. let's do the right form -- let's do the right thing. let's enact real liability reform. -- real liability medical reform. the amendment i'm offering to place real limits on attorneys' fees on medical malpractice cases. it would limit to 33.3% of the first $150,000 of the total amount recovered by the judgment

or settlement. anything further than $50,000, the contingency fee would be limited to 25%. and while helping to rein in the costs of frivolous medical malpractice lawsuits, this ensures that states' rights aalso protected. this amendment explicitly allows states that have different fee limitations to keep them in place instead of these caps. this amendment ensures appropriate state flexibility while at the same time helping to include access for care and reduce health care costs. let me repeat again, back in 1995, when senator edward kennedy offered this amendment, these 21 senators who were here at the time, who are part of the democrat majority, all voted for senator kennedy's amendment. to be clear, my amendment contains more detailed

limitations on contingency fees than those contained in the amendment i am proposing today, but in the interest of finding a starting point on medical liability reform, i am willing to start off the debate bee enacting senator kennedy's limitations before. oh, by the way, the other side's going to say that the trial lawyers need this money because these cases -- to be able to take these cases. but let's face it, the trial lawyers are mostly the ones that get the money out of these cases. we want to make sure that that money also goes mostly to the patients. so when you see pictures put up on -- by the other side, you'll notice that my amendment would actually help those very patients that they're going to put those pictures up about. medical liability reform does work and it's already turning the tide against frivolous lawsuits and outrageous jury awards in some states. we've seen it in california, in texas, in my home state of nevada, where the number of

medical malpractice lawsuits has decreased dramatically. it's been a crisis driving doctors out of business for too long now. it's time to protect patients across the contract and ensure access to quality health care. to illustrate my point, i'd like to tell you the point of medical liability reform in texas. to begin with, access to health care has improved. over 18,000 new physicians have come to texas. texas. the ohio-risk medical specialists in -- the number of high-risk medical specialists in texas is growing since 2003. in 1993, the state has offered over 100 new doctors, over 200 new ob-gyn's, and over 200 orthopedic surgeons. these additions are not limited to metro texas, though. the ranks of rural obstetricians has grown by almost 30%. 22 rural counties have added an

obstetrician and ten counties have added their very first o.b. so 23 rural counties have added at least one emergency medicine physician. so it's not just helping the cities, it's also helping rural parts of texas. in addition to these improvements in access to health care, charity care has also greatly expanded due to medical liability reform. today, texas hospitals are rendering around $600 million more in charity care each year than they were just a few years ago. that is a -- almost a 25% increase in charity care. which is due mostly because of the savings in liability. liability savings in states across the country have allowed hospitals to upgrade medical equipment, expand their emergency rooms, expand outpatient services, staff e.r. rooms 24/7 with high-risk

specialists, improve salaries for nurses, and launch patient safety programs. without reforms and attendant savings, these healthy developments would not have been possible. lawsuit reform has been a magnet for attracting doctors and the funding mechanism to improve access to care and to enhance patient safety. physicians have seen a decrease in their medical liability reforms also, and since 2003, for instance, in texas, physicians have saved a collective, almost $600 million in their liability premiums. all major physician liability carriers in texas have cut their rates since the passage of this reform. and more than 43% of texas doctors have seen their liability premiums cut in half n. my home state of nevada, limitedations on economic damages with medical liability reforms have helped to stabilize the medical liability climate

which was severely in crisis just a few years ago. the independent nevada doctors insurance exchange to keep rates -- they followed a 20% deincrease in 2007 and rates stayed steady in 2008. after years and years of increasing dramatically, in mississippi, in 2004, they created a hard $500,000 limit on noneconomic damages. and since that law took affect, the number of medical malpractice lawsuits -- get this number -- has decreased 0% in the state of mississippi, and their insurance -- 90% in the state of mississippi, and their insurance -- medical malpractice insurance costs have dropped anywhere from 30% to 45%. other states have seen similar types of results. these examples prove that lawsuit reform can improve access to care, expand the number of doctors, and -- and types of care that hospitals are able to offer, and help reduce

overall costs in our health care system. according to a very conservative estimate by the congressional budget office, medical liability reform, such as what i've introduced, would decrease the deficit by $54 billion. it would also, according to the c.b.o., save the private sector about the same amount of money. so over $100 billion in savings that now goes to propping up a lot of frivolous lawsuits across the country. and by the way, think about it, if you had medical malpractice committed against you, you -- i believe you should have access to the courts. i believe you should be able to sue. i believe that you should be able to get just compensation. the problem that happens now, because our courts are so clogged up with all these frivolous lawsuits, it takes years, if not up to a decade, to be able to get through the court system. and many of these patients who were severely hurt, many of them die before the case is ever

settled. that's another reason that we need medical liability reform. and we need it now. let me tell you why i believe that medical malpractice reform has been left out of this bill. actually i don't want to tell you why. let me let howard dean tell you why. howard dean, obviously the former chairman of the democrat national committee, i'm going to quote from him. "the reason why tort reform is not in this bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on. and that is the plain and simple truth. now that's the truth." that's a direct quote from howard dean, the former chairman of the democrat national committee. so i hope as this debate unfolds, many of my colleagues on the other side of the aisle will change their mind about

enacting serious medical liability reform. i hope at least these 21 senators who voted for this amendment before will vote for this amendment again when it comes to a vote tomorrow. this isn't a battle between the right and the left. it's a battle between right and wrong. this amendment is a helpful prescription for patients, and i know many on the other side of the aisle would like to cap salaries of people who work in the health insurance industry. i hope these same members would support this simple amendment to limit trial lawyers' contingency fees in a responsible manner. mr. president, i urge the adoption of this amendment, and i also yield the floor. a senator: mr. president? the presiding officer: the senator from illinois. mr. durbin: mr. president, i ask unanimous consent that on the conclusion of senator ensign's remarks that i be recognized for a period of time equal to that utilized by senator ensign. further, that after the conclusion of my remarks members then be recognized in

alternating fashion and that they be permitted to speak for up to ten minutes each. further, if there's any extensions of time requested, then the other side be accorded the same. i ask the democratic speakers be as follows: senator franken, senator lautenberg, senator stabenow, senator dodd, senator kaufman. the presiding officer: is there objection? a senator: mr. president? reserving the right to object, and i won't. i just want to make a clarification that we wouldn't object to a couple of the people going without alternating so that we can have a couple of people that also go without alternate. mr. enzi: hopefully we can make some arrangements on the time limits. i like the provision in there that if one goes longer, then the other side can go longer too. with that provision, i have no objection. the presiding officer: is there objection? without objection, so ordered. mr. durbin: mr. president, could the chair inform me how much time the senator from nevada used. the presiding officer: 21 1/2 minutes. mr. durbin: thank you very

much, mr. president. mr. president, this is an issue that is very personal and very important. i know a little bit about this because many years ago before coming to congress, i was a trial lawyer. i spent many years defending doctors when they were sued for medical malpractice, and i spent as many years representing plaintiffs who claimed to be victims of medical malpractice. so i've literally been at both tables in the courtroom, and i at least in a previous life knew a little bit about this field of legal practice. what the senator from nevada is trying to do is to reduce the contingency fee that can be paid to a lawyer who represents a plaintiff. well, here's how it works: if you believe that you or a member of your family have been a victim of medical malpractice, or you've either been hurt or someone in your family has died,

you'll go to a lawyer and say i don't think i was treated right, and the lawyer will say to you, if i think you have a good case that we can prove in court, i will represent you. but i know you don't have enough money to pay me my legal fee. i will take your case, accept your case on a contingency, which means if you win, i get paid. if you lose, i don't get paid. and that's what a contingency fee is. and for most americans who are not wealthy, this is the only way that they can get a good attorney to go into court, is to pay a percentage if they win, a contingency fee. that's one side, one table of the courtroom. there's another table in the courtroom. at that table sits the doctor or hospital and an attorney. that attorney isn't paid on a contingency fee.

that attorney is paid by the hour by the insurance company. no matter how many hours that attorney puts into the case, that attorney's confident at the end of the day he'll be paid. so the senator from nevada comes here and says we think it would be just to limit how much victims' attorneys can get paid. i waited patiently and listened, hoping that at some point he would say, and in all fairness, we think defense attorneys should be limited in what they are paid too. but i didn't hear that. because what it gets down to is really not about attorneys, if we're about making it fair and equal for both tables in the courtroom, you would limit both attorneys' fees. no. what this is all about is to discourage attorneys from representing vic victims. limit the amount of money that a

plaintiff's attorney can receive as a contingency fee. there's been a lot said about frivolous lawsuits for medical malpractice. i want to tell you as a person who did this for a living, the last thing in the world i would consider doing is taking a frivolous lawsuit. it costs a fortune. at the end of the day, you're likely to lose. you can't keep the doors open and the lights on in a law practice taking on lawsuits that are going to lose, taking on frivolous cases. you weigh carefully the cases you're going to take because you as attorney representing a victim have to spend a massive amount of time to bring that case to trial realizing at the end of the day if they're not guilty, you have nothing to show for all that time and all that money spent that's what's behind contingency cases.

that's why the senator from nevada focused on one table in the courtroom: the victims' table saying we want to discourage lawyers from taking on victims' malpractice cases. we want to discourage them by paying them less. against lawyers, no limit -- defense lawmakers no limit how much the insurance companies can pay them. that is the ensign amendment in summary. i'm sorry in a way that senator ensign has invoked senator kennedy's name to support his effort i'm sorry that senator kennedy isn't here, because i think i know what ted kennedy, sitting right back haoerbgs would -- back here, would be saying at this moment. he would explain to the senator from nevada that the amendment he's referring to is part of the gingrich revolution which some may recall, which was an attempt to change tort reform laws across america with onerous provisions, removing, for example, the right of people to recover punitive damages in lawsuit, all sorts of

limitations on bars against filing lawsuits. it was an onerous law which senator kennedy offered his amendment to in the hopes of slowing it down. senator kennedy wasn't successful. and at the end of the day this bill passed, this gingrich revolution bill passed, was sent to president clinton who vetoed it. so to suggest this was senator kennedy's life work, it was his attempt to slow down a steaming locomotive that was coming through the senate. it didn't work. and to invoke his name at this point is to at least not tell the whole story behind the amendment. but if you're going to tell the whole story about this amendment, you need to get beyond lawyers and start talking about victims going into courtrooms. for the longest time the argument on the other side of the aisle, on the republican side of the aisle is if you go into a courtroom saying you're the victim of medical malpractice and prove that you are, they want to limit the

amount of money a jury can give you for your injury. they used to call it caps. right now if you are a victim of medical malpractice and you are successful in a courtroom, you're likely to recover your medical bills and your lost income and some money for what they call noneconomic damages. those would be scarring, disfigurement, pain and suffering. so what most of the effort has been on the other side is to limit the amount that you can recover for these noneconomic losses -- scarring, disfigurement, pain and suffering. for people who have proven that they were the victims of malpractice, they have tried to limit the amount they can take from a jury. in some states, over half the states in the nation, those limitations or caps have been put in place. what is the scope of this problem? the institute of medicine tells us that they believe that -- at least this was a finding that

they made back in 1999 that -- that there are 98,000 deaths in america each year, preventible deaths because of medical malpractice. 98,000. when you look across the board at the number of claims filed each year in america, it's about 11,000. one in ten of the deaths and injuries, frankly, much smaller number than one in ten, actually end up in a lawsuit. so the vast majority of victims of medical malpractice don't bring a lawsuit. either they don't know they were victims or they decide it's just not something they want to do. a very small percentage do. with a what the senator from nevada did -- what the senator from nevada did not tell us is since 2003 when this issue has been addressed by so many states, the number of lawsuits, medical malpractice lawsuits filed each year has gone down, continues to go down. and the premiums for medical malpractice insurance have

started to come down as well. so there is a positive trend here because of state reform and other circumstances which has led to fewer medical malpractice lawsuits. but, make no mistake, there are still victims, and there still will be. and we have to be honest about what those victims face and what the ensign amendment will mean. what the ensign amendment means is that many of them won't be able to find a lawyer, and some of them should. let me tell you some real-life stories of victims of medical malpractice and what happened to them. this beautiful couple, molly acres of new lenox, illinois, and her husband tell a story that is heartbreaking. molly had a swelling in her breast and her doctor performed a biopsy and determined that she had breast cancer. she had several mammograms which found no evidence of a tumor. the doctors decided, however,

that it must have been some rare form of breast cancer, and they said that molly, to be safe, needed a mastectomy. they removed her right breast. after the operation the doctor called her into the office and revealed that they discovered that she never had breast cancer. instead, the radiologist who reviewed her slides accidentally switched molly's slides with those of another woman. molly was permanently disfigured because of this mistake, this negligence. she said "i never thought something like this could happen to me, but i now know that medical malpractice can ruin your life." by the way, the other woman whose slides were switched with molly's were told she was cancer-free. that was a medical error that ended up injuring two people. not just one. is she entitleed to her day in court? is she entitled to be

compensated for what she went through? is she entitled to have at least those responsible pay for her medical bills, her lost wages, pain and suffering, scarring and disfigurement? by most standards of justice in this country, the answer would be yes. but if she isn't rich enough to pay an attorney's fee, she walks in and says the best i can do is tell you if i win, you win. it will be a contingency fee basis to the lawyer. what the senator from nevada wants to do is to reduce the likelihood that she will find a lawyer to represent her. this is another story of another man, another person, i should say from illinois. glenn steinberg is shown here. in 2004, glenn went in for surgery in chicago to remove a tumor from his abdomen. ten days after surgery while he was still in the hospital, he was having pain and problems. they did an x-ray of his abdomen, and they found a

four-inch metal retract tor lodged against his intestine that had been left in his body after the surgery. a second surgery was performed to remove this metal instrument during which time glenn's lungs aspirated and he died. glenn's wife mary said not a day goes by when i don't miss glenn's companionship. because of gross negligence, he was not here to support me when our son went off to serve our country in iraq. a real-life story. this man did nothing wrong. an innocent victim who in our system of justice is entitled to compensation. but if his widow didn't have enough money to pay the entire attorney's fees and webt in for a -- went in for a contingency fee, she might be limited because of the amendment being offered by the senator from nevada. this next case in illinois involves children.