the subject is open to further amendment. i think senator hatch has number 8. we adopted an amendment before you arrived. we adopted a hatch amendment while you weren't here? >> no, that's a blessing. we're on number eight. >> am i on -- >> you're up, sir. >> we included your chiropractor immunity -- >> that means a lot. that means a lot. i'll call amendment number 8 on comparative ektiveness research. the purpose of the amendment, to summarize -- >> which number is this? >> number eight. number eight. >> staff will please distribute the amendment if it hasn't been already. >> okay.

>> go ahead, orrin. >> thank you, mr. chairman. the purpose is to prohibt the use of comparative effectiveness research by providing the standard of care in state and federal courts. now, what i'm concerned about, i believe patients and providers should better understand their care and be confident of its efficacy but never lose sight of the fact or of the basic understanding that medicine is simply not an exact science. we're all different beings and we sometimes need different therapies, some drugs work for some people, some work for others, some don't work for some people as well. there's a varability that affects their treatment outcomes and only within the confines of the physician/patient relationship should treatment decisions be made. we must preserve and protect

that physician/patient relationship. what might work for one person or even many patients does not mean it will work for every patient. allows physicians to practice medicine without the fear of frivolous lawsuits and add more medicine through frivolous liability lawsuits. in my earlier life, much earlier life, i did some medical liability defense work, defending doctors and hospitals and nurses and health care providers, et cetera. and once they came up with the doctrine of informed consent, rather than the standard of practice in the community, every case went to the jury. with the language in this bill every case will not only go to the jury but they'll have good -- they'll have an easier time making a case to the jury

in certain cases. i don't want to interfere with the physician/patient relationship. i think we got to allow physicians to practice medicine without the fear of frivolous lawsuits. in my experience with medical malpractice lawsuits, a high percentage of frivolous, they are brought because the personal injury lawyers can make money off of defense costs, generally between 50 and 200,000. i think they may be higher today. what insurance company is not going to bow out of the case with whatever the defense costs are and leads to a multiplisty of suits that really will go to the jury but should be found by the jury to be frivolous in nature. this would add to that in my opinion and add to it in very serious ways. without any safeguards in place, the safety and health care delivered to patients would be

in serious jeopardy. patients are different. doctors approach patients differently. your own physician knows what your pluses and minuses are or at least has a better indication than one size fits all safety standard that might be put out from washington here. now, in addition, our president has pledged to the american people he will not sign a bill that does not contain health care costs. well, both sides of the aisle now, one of primary reasons for the staggering rise in the could have of health care is due to frivolous lawsuits against physicians and against hospitals and nurses and health care providers and so many others. and a lot of them are brought to get the defense costs because you can make a darn good living. off of these suits. because they are generally brought on a contingency basis and the attorneys get 25 and 40%

in con ting ent fees. i can't blame the attorneys for bringing these kind of lawsuits. since we don't write the laws to resolve these type of problems. and if we go the way that we're talking about with comparative effectiveness, setting the standards for everybody in the country and for every individual regardless of what that individual's individual needs are, i think we're just opening up the door for a multi -- plethora of frivolous lawsuits. i think you have to put safeguards in place to mitigate these litigations and of course, you know, i'm very strong supporter when you have a true medical liability of resolving those problems having worked in the past i've seen the wrong eye

taken off, wrong leg taken off. wrong kidney. there ought to be tremendous settlements for those and they were settled and those type of cases should be taken care of and others where there is a serious negligence on the part of the physician or the health care provider. but all too often we're providing a means to drive up unnecessary defensive costs. we all want defensive medicine, everyone would like to have doctors rule out a lot of things and by necessity will be some defensive medici but it goes wa beyond that. doctors, give caution to whether somebody comes in with a minor problem, you can't afford to just give them one pharmaceutical and tell them it might help them get through it. you've got to make sure to rule out every possible problem that might possibly arrive. i use commonly the argument that

if somebody comes if with a common cold, you can't say take two aspirin and in seven days you'll feel better or don't do anything, in seven days you'll feel better. 50 bucks. >> no, they come in, you can't -- the doctor can't take the chance of the slight possibility that there might be something more involved. you're going to get respiratory exams and in some cases we know mris and cat scans are overused. sometimes they are used because the doctors are paying for them and have them in the facilities and want to make money off of them. i'm not trying to paint the medical provision as being wrong here or being evil, but it does happen. we all know it. and all i can say is that we're with this language in the bill, if we don't correct it, you're going to open the door to even more medical liability, frivolous lawsuits than ever before, when in fact when you do

have a good case, you still can bring it. i would be the first to stand up for people to be able to bring that case. i think it's a reasonable approach. last but not least, if we don't change it the way i would like to have it changed. we'll have rationing established right here in washington, d.c. and it's going to be by the comparative effectiveness of the people. some people want that. some people think that's the only way to get health care costs under control. i believe we ought to give the best health care we can to everybody nor should we ration care or ignore the fact that different physicians have different specialties and sometimes because patients are different each of us is a different entity in this world and we have different problems and different genetics and we have different makeups and different blood in a lot of ways. and they keep going and on with the differences. sometimes what works for one

doesn't work with another. i see that in the pharmaceutical world all the time. i'm very concerned when we do these type of a bill, we do it in a way that doesn't increase cost and make it even worse than what we have now. i think that language will make it worse. this would correct the language in a small way but nevertheless an important way. >> thank you, senator. let me turn to senator -- i believe the only member of our side of the judiciary committee, i know senator hatch as well. >> let's be clear, senator hatch's amendment number 8 would prohibit the use of research conclusions and recommendations out of the center for help outcomes search and evaluation as evidence in any civil action involving medical negligence or misconduct. this amendment seeks to set rules of evidence for every court in every state in every

state in federal court across the country. that is certainly not something we should be doing in health care reform. the admissibility of evidence in a particular case should be decided by the court based on well established principles of law. so, that's not one. number two, this legislation, in other words, the legislation pending before the committee for final adoption, not the hatch amendment, makes clear that any help outcome research shall not be con trued as mandates for treatment. remember, we are building, we in the bill are building on existing law that was established in the recovery package, the stimulus package where we established a research program that was very clear that this should not be con trued as

mandates for treatment or patient. thus the mere fact that a medical provider didn't follow a treatment recommendation of the center could not and would not give rise to liability t would be. it would only be at the most one of the many factors considered regarding appropriate standards 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 a so i think it is a very poor -- and i think we should vote against the for that reason alone.

as senator mikulski points out, these usually around -- they usually revolve around expert testimony. it can this is a wide array of -- it's canvases a wide array of information on which the judge can make a decision. it would be unique to take this one particular source of information and say, well, you cannot consider this in the courtroom any longer. it would it stature torelli -- statutorally -- it would not add to the fairness in any way. it interferes with it in an improper way. 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. you'll notice i'm using very delicate language here. expressed disapproval because they know that a lot of these cases are frivolous. and i'm sorry to say, you know, as somebody who has a very deep profound feeling about my legal profession, and especially good

trial lawyers, that there are those that would exploit every possible word to make money in the practice of law. and i'm a member of the trial lawyers association. i think most of them are pretty decent people. but there's a significant number who will conjure up any case 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 secondly, this is a decision by washington to preclude