unconstitutional, it is un-american, thank you. . the speaker pro tempore: members are advised to address their comments to the chair and not members within the -- in the second person. the gentleman from massachusetts. mr. mcgovern: thank you, madam speaker, for maybe taining decorum in the house. at this time i yield two minutes to the gentleman from new yorkmr. weiner. the speaker pro tempore: the gentleman from new york is recognized. mr. weiner: madam speaker, we are seeing today that after 75 or so hours of markup, hundreds of hours of hearings, 16 months of long debate, thousands upon thousands of meetings and town halls the republicans come to shington and don't know what they want to do in health care yet. . . should understand that this resolution says go bacand figure out what we want to do. ladies and gentlemen, i would remind you that last year during the health care debate

the republicans had a ance to offer an alternative, they didn't. now they come to washington and say, oh, let's have the committees try to figure this all out. yesterday they were the party of no and today they are the party of we don't know how to go. who are these republicans? after months and months and months of the national debate, you can go into any coffee shop, any church basement, just about any card game in this country and people have solid ideas about what they think about health care, but not the republicans. they've got a resolution today that says, hey, committees, go try to figure this stuff out. it's complicated. by the way, i don't know, madam speaker, if i read it correctly, i don't think there are any deadlines. i don't think there are any deadlines. i will eat this rostrum if they come back with legislation that actually accomplishes the things that they just repealed yesterday. it's not going to happen. ands in the fundamental problem that i believe -- and this is the fundamental problem that i believe the majority party now

has. they have the campaign slogans all down. i heard the gentleman from florida do one. unconstitutional. they have the campaign slogans, and i got to give them credit, they were successful with them. they came here we are against, against, against. now here it is. unlike pastcongresses come up geared up for the things they want to do, they are geared up with a resolution saying, hey, go figure out what it is we should do. the american people deserve a lot better than this. they deserve comprehensive health care that saves them money. that's what was repealed yesterday. the speaker pro tempore: the gentleman's time has expired. the gentleman from california. mr. dreier: i yield myself 15 seconds to say to my friend from new york it's very interesting that the president of the united states the day before yesterday said that he was willing and eager to work with republicans to ensure that we rectify this flawed bill. the distinguished assistant majority leader, the former majority whip, mr. clyburn, said he's willing to work with republicans in a bipartisan way to address this. with that, madam speaker, i

yield one minute to my good friend from allentown, pennsylvania, mr. dent. the speaker pro tempore: the gentleman from pennsylvania is recognized for a minute. mr. dent: yesterday the house voted to repeal the misguided health care law of 2010 which is seriously flawed both in its structure an practical implementation. i keep hearing discussion about the affordable care act. if one believes the affordable care act will not add to the deficit, i think one is apt to believe just about anything. today we have the opportunity to direct to the committees to produce practical and effective reforms. i urge my colleagues to join me in supporting this resolution and commit to working together to enact meaningful reforms that will lower health care costs, expand access to affordable insurance coverage, and foster economic growth and jobs. the current law is simply unwise and unsustainable. i believe we must replace the misguided policies of the current law, reforms that will address rising health care costs, specifically i support medical liability reforms to reduce the practice of defensive medicine. i believe congress must provide americans with more optionsor

affordable health coverage such as low cost catastrophic plans for individuals, patient centered health careavings account. cross state purchasing, and effective high-risk pools. i urge my colleagues to support this resolution and let get on with this today. i yield back. the speaker pro tempore: the gentleman from massachusetts. mr. mcgovern: 10 seconds to the gentleman from new york. mr. weiner: i want to respond to the distinguished chairman. the president did not say anything about thistardly flawed bill. he said we should implement a improve. that's the way we build importantlegislation. he didn't say look forward to republicans -- mr. dreier: would the gentleman yield five seconds? madam speaker, let me just say to my friend that the president did say that he is willing and eager to work with republicans to rectify the problems that are here. right after the election he said he wanted to correct the

1099 -- the speaker pro mpore: the gentleman's time has expired. members will suspend. who yields time? the gentleman from massachusetts. mr. mcgovern: i yield two minutes to the gentlewoman from maryland, ms. edwards. the speaker pro tempore: the gentlewoman from maryland is recognized tore two minutes. ms. edwards: thank you, madam speaker. i'm actually disappointed i'm standing on the floor of the house of representatives today yet again defending and protecting the rights of the american people to health care. it's such a shame that yesterday and the day before for seven hours our members on the other side spent their time deciding for the american people to take away the ability of parents to provide health care for their young people up to age 26. they spent seven hours other than findingobs, trying to make sure that small businesses who are providing health care don't get a tax credit anymore for the health care that they are providing for their

employees. they spent seven hours trying to strip away the ability of our seniors to make sure that they don't have to reach into their own pocket, deeper pockets, not deep anymore, to y for prescription drugs. yesterday they spent seven hours a and the day before debating whether it's good idea for insurance companies to be able to deny people health care for pre-existing conditions when they know that at least 129 million of us, 65 or so percent of us, have pre-existing medical conditions. it's disappointing here we are yet again where the republicans say we took it all away in one day. and now we are going to think about some of it that we might replace again. well, we have created a health care law for the american people that's about affordability and accessibility. i know that the democrats are going to stand on the side with the president and implementhe law. thank goodness for the american

people, they should know that the republicans didn't do anything yesterday other than put a whole bunch of stuff on a piece of paper that has no chance of going anywhere. the paper is not even worth the ink that's printed on it. the speaker pro tempore: the gentlewoman yields back. the gentleman from california. mr. dreier: thank you very much, madam speaker. the native of the show me state, i'm pleased to yield to my friend from s elizabeth, missouri, one minute, mr. luetkemeyer. the speaker pro tempore: the gentleman is recognized for one minute. mr. luetkemeyer: i'm proud in support of this resolution. a bill that would help committees and our country back into theight direction. it will entail more than tweaking the law, it means replacing the health care bill real reform. last august 71% of missourians went to the poll and said no. as i go about my district and talk to my employers, they tell me instead of premiums going

down they have gone up 25%o 40%. instead of improving access to care we actually have doctors retiring in record numbers. true reform should be passing significant la through reforms so doctors can perform their jobs ever taking their of their patient. i also support increasing access to insurance by allowing small business to pool together to get the best plan for the employees. all along republicans have offered a commonsense approach approving our health care system in a way that controls costs and provides the quality of care that americans deserve. today's vote is important in realizing that goal. i yield back. the speaker pro tempore: the gentleman yields back the balance of his time. the gentleman from massachusetts. mr. mcgovern: could i inquire how much time remains? the speaker pro tempore: the gentleman from massachusetts has 12 1/4 minute remaining. e gentleman from california has 16 1/4 minute. mr. mcgovern: we reserve. the speaker pro tempore: the gentleman from california. mr. dreier: at this time i'm happy to yield to one of the other new members who come with

a very strong message here, she's a nurse and she's from tennessee, two minutes. the speaker pro tempore: the gentlewoman from tennessee is recognized for two minutes. mrs. black: i thank the gentleman for yielding. madam speaker, i rise on behalf of the people of middle, tennessee, who spoke loud and clear this last year that they do not want the federal government dictating their health care. the plan that was sigd into law by the preside was supposed to increase access health care and lower costs for american families. however in the months since the bill passed it has been shown to do neither. we now know that the health care bill not only increases premiums for families, but hinders job creation and is filled with unintended consequences that not only diminishes the quality of our health care system but also do great damage to our economy and increase our deficit. this new congress was sent here to follow a more responsible path. through commonsense,

market-based solutions we can replace a flawed health care bill to have the best health care system in the world. i'm eage to take part in drafting the new republican plan and focusing on rolling back the individual mandate, eliminating the onerous demands on small businesses, and actually lowering the costs for families and increasing access to quality, personalized health care. i also look forward to a thoughtful discussion that includes solutions that went ignored before like tort reform, increasing competition, and tax breaks instead of tax hikes. as a nurse for over 40 years, my top priority will be making sure our plan honors the doctor-patient relationship that is so sacred in medicine because there is no place for a government bureaucrat in an individual's health care decision. as a member of ways and means committee, i am excited to work with chairman dave camp and my fellow committee members on a

new way to forward responsible health care reform. let's do the work that the american people sent us here to do. madam speaker, i yield the balance of my time. the speaker pro tempore: the gentlewoman yields back. gentleman from massachusetts. mr. mcgovern: we continue to reserve. the speaker pro tempore: the gentleman from california. mr. dreier: madam speaker, may i inquire of my friend if he has any further speakers on his side? mr. mcgovern: we do have further speakers. but there is a time discrepancy. we'll let you catch up. mr. dreier: let me say we don't have other speakers here yet. we are others on the wayver to the floor. so i'd like to reserve the balance of my time. i understand the disparity that exists in the timing, but -- i can talk for all that period of time but i don't want to have the gentleman suffer through that. mr. mcgovern: i'm happy to suer through it if you use your time. at this time, mr. speaker, i'd like to yield two minutes to the gentleman from california, mr. garamendi. the speaker pro tempore: the gentleman from california, mr. garamendi, is recoized for two minutes. mr. garamendi: madam speaker,

as i'm sitting here listening to this, i'm thinking this must be something like "alice in wonderland." this is the most bizarre debate i have heard in a long time. we need jobs. we need to be focusing on the american economy. this particular resolution has no sense of reality. i have heard debates here and discussions on the floor about association health plans. i know about association health plans. i was the insurance commissioner for eight years in california having to deal with these noninsurance programs that let hundreds indeed ousands of people holding the bag when the association health plans went belly up. it doesn't make any sense. california's had tort reform for 30 years. we have in the law today in america a protection for every individual in america from the onerous hands of the insurance

companies thatave continued over the years to deny benefits, to make the doctor decisions, and to literally put people's lives at risk. it's called the patient's bill of rights. it's the law in the land. and our republican colleagues want to repeal that? we have a law that's in place. it should be implemented. the cost issues that have been discussed here on t floor are really a discussion about what has taken place in the past. the law has yet to be implemented with regard to cost containment. thoversight of the insurance companies. all of those things are in the days ahead and a market system is available witthe exchanges. you want to talk about market, that's how you get there with exchanges. replace, repeal, how bizarre is that? americans have a protection. yesterday our republican colleagues voted to remove their protections. they caved to the insurance

companies once again the power to regulate their lives. we cannot allow that to happen. this step today is just "alice in wonderlan" i yield back. the speaker pro tempore: the gentleman's time has expired. the gentleman from california. mr. dreier: i'd like to ask unanimous consent that all members may have five legislative days to revise and extend their remarks on h.res. 9, and i'd also like to ask unanimous consent that my distinguished vice chairman of the committee on rules, mr. sessions, be able to insert a statement in the record at this point. the speaker pro tempore: without objection, so ordered. mr. dreier: i'd like to yield one minute to my hardworking colleague from lincoln, nebraska, mr. fortenberry. the speaker pro tempore: the gentleman from nebraska is recognized for one minute. mr. fortenberry: i thank the gentleman for the time. madam speaker, health care reform, the right type of reform, is important to me, important to every american. and the right type of reform will actually reduce cost and improve health care outcomes while we protect vulnerable persons. .

however, this health care law is an -- is a complicated mess that will increase spending and reduce health care liberty. americans deserve better. i believe it'smportant to craft a new, commonsense policy that provides new insurance models for families, farmers, and small business owners, but any model we craft must continue to build upon a culture of healthnd wellness. allow newly insured persons to keep their curnt coverage, and also retain protection for pre-existing conditions. this will be important. so now the hard work begins. but this time, we have the opportunity get it right. i yield back. the speaker pro tempore: the gentleman yields back. the gentleman from massachusetts. mr. mcgovern: i yield two minuteto the gentlewoman from wisconsin, ms. moore. the speaker pro tempore: the gentlewoman is recognized for two minutes. ms. moore: thank you so much,

madam chair and thank the gentleman for yielding. i rise as the incoming co-chair of the congressional women's caucus to talk to you a little bit about the impact that repealing this health care law will have on women. as you all may be aware, women are twice as likely to be dependent upon their spouses for health care and they're less likely than meto have employer-sponsored insurance. as single female heads of household, this has a devastating impact on the entire mily when there's no health insurance. all of us have heard stori from our dict about how the repeal of this law will have on women and i heard such a story just yesterday. meet nicole lipski, she's 25 years old, working part time and going to school part time

because because of the health care law was able to remain on her dad's insurance and lucky for her, because just last week, she had an infected pancreas and had to have her gallbladder removed in an emergency surgery which cost $13,000 that fortunately, was covered by her parents' insurance. you know this law outlaws gender rating, and insurance companies of course charge women higher premiums than men for coverage and it also has a disparate impact on women with respect to pre-existing conditions when you consider that being a victim of domestic violence is considered a pre-existing condition. now, you don't have to be a harvard economist to know that this law is not a job killer. but we do have a harvard economist to back us up. david cutler, professor of applied economics at harvard,

released a study on january 7, finding that repealing the health care law would destroy 250,000 -- can you yield 15 seconds? mr. mcgovern: i yield the gentlelady 15 seconds. ms. moore: would grow 250,000 jobs annuallymark of them are women's jobs, x-ray techs, nurses, and even the cleaning person wo who cleans up the emergency room. the speaker pro tempore: the gentlewoman's time has expired. the gentleman from california. mr. dreier: at thistime i'm happy to yield one minute to my good friend from north carolina, many mchenry. the speaker pro tempore: the gentleman is recognized for on minute. many mchenry: last night, house republicans took a major step in our pledge to america by passing a repeal of obamacare. now we must work to replace this budget-busting law with

sensible, market-placed policies that lower costs for families and small businesses and expand access to affordable ce. small businesses are the job creators that hold the key to our economic recovery. they cannot afford the hundreds of billions of dollars in new taxes in the obamacare law and the new employer mandate as well. our small businesses need certainty in the tax code, certainty in regulations coming out of washington and obamacare only makes matters worse. i look forward to an open and transparent debate in this congress on alternative, affordable insurance. that's what the american people want and what my constituents desire. i would also challenge my friends on the other side of the aisle to listen to the american people and join our efforts to work toward better solutions to our nation's health care challenges. the speaker pro tempore: the gentleman's time has expired. the gentleman from massachusetts. mr. mcgovern: i yield one and a half minutes to the gentlewoman

from texas, ms. jackson lee. e speaker pro tempore: the gentlewoman is recognized for one and a half minutes. ms. jackson lee: thank you, madam speaker. thank you to my good friend from massachusetts for yielding. let me say the good news is that the only thing that occurred last evening was simply a vote because the law of the land is still the patient protection and affordable care act and i hope that the president's words are not twisted, because i agree with him, we are all willing to work together to do the right thing, which is tomend the bill. i don't understand the understanding of my friends on the other side of the aisle. repealing the law of the land has nothing to do with questioning the provisions. frankly they're not even listening to a distinguished doctor, senator fritz, the former majority leader who said this bill, our bill is the law of the land and it is a platform, the fundamental platform on which all future efforts to make that system better for the patients and families will be based. what is there not to understand?

amend the bill, don't repeal. senator fritz said if the bill was on the floor, he would have voted for it. i spoke to some students the other day and they asked about doctors. this bill had in it scholarships for medical professionals, the bill that we have. the issue of course is one that you cannot dispute. this bill saves lives. so much so that the republican majority leader ran to the media to promise seniors that they wouldn't lose the $250 that our bill, the patient protection bill, guaranteed them so that they would have some cushion for their prescription drugs. so my friend, i know we're doing the right thing. we're all willing to amend. but how ridiculous it is that you would repeal the law of the land or attempt to do so and i know the president still has his veto pen. this law will save lives. the speaker pro tempore: the gentlewoman's time has expired this egentleman from california. mr. dreier: i yield a minute and a half to one of our new members

from oklahoma city, mr. lankford. the speaker pro tempore: the gentleman is recognized for one and a half minutes. mr. lankford: thank you, madam spker. thank you for yielding time. the repeated diatribe from members on the other side of the aisle that somehow they're the only individuals in the chamber that care about the health of e american family demonstrates again the deep-seated partisanship that we must defeat. we all want to help the american people. the people don't like obamacare but they want something to be done. we must have tort reform to reduce the cost of defensive medicine. we must deal with the f.d.a. approval process that covers any new discovery in paperwork costing a billion dollars to get ithrough the process. we must open up more options for insurance carriers, allowing someone frustrated with their service to fire em and get a new insurance provider. we must reject price fixing as a

co-cutting solution. we must allow every american to choose their own docto even pay their doctor directly if they choose to do that. we must give senior americans more choices in physicians who accept medicare patients. we must provide states with greater flexibility and deal with portability, high risk and pre-existing conditions. republicans have friends and family dealing with the same medical issues the democrats deal. with suffering, disease, and pain have no respect fb political affiliation. just believe that if you're sick and hurting, you should contact your doctor, not washington, d.c., to see what to do next. let's surprise america. let's work together and get something done. let's show them that even with the divided house and senate, we can reject the gravitational pull of hol picks and put aside our differens for the good of those most vulnerable. the speaker pro tempore: the gentleman's time has expired. the gentleman from massachusetts. mr. mcgovern: i want to respond to the gentleman who just spoke. we hear distortions other and

over again. we heard them during -- er and over again, we heard them during the campaign, that were perpetrated by our friends on the other side of the aisle and their friends in the insurance industry. that somehow what we passed was a bill that wouldn't allow you to keep your own health insurance. we passed a bill that provides competitions. i'd like to yield two minutes to the gentleman from minnesota, mr. ellison. the speaker pro tempore: the gentleman is recognized for two minutes. mr. ellison: madam speaker, repeal and replace? what about protect and improve. what about improving the bill that is there right now, rather than repealing and replacing? you know, the fact is, the republican caucus is talking about replacing a bill and yet whether it's pre-existing conditions or filling in the doughnut hole, i've heard several of them say, we want to keep that. yet they don't want to protect and approve -- and improve, they want to repeal. why?

to protect the insurance industry. i can't see any other ason why they're doing this. the affordable care act is a good bill. can it be bet her of course. but that's not what we're talking about today. we're talking about taking away benefits that americans have in their ha. the republican caucus is snatching away people who want to get their children on the health care insurance who are under 26 years old. -- years of age. snatching away. -- snatching away free preventive care for seniors, snatching out of the hands of families whose children are trying to be able to get care who may have pre-existing condition. snatching out oaf thnds half seniors filling in the doe -- out of the hands of seniors filling in the the doughnut hole. this is wrong and it's a shame. the fact is the democratic caucus, en we had the white house and the -- and both houses of congress, within two years, we brought to the american people a health care bill. when the republican caucus had

the house for six years, between 2000 and 2006, they don't do anything other than do a big fat giveaway to pharma. this is what we get. mr. dreier: will the gentleman yields on that point? would the gentleman yield? mr. ellison: i think i'm out of time. mr. dreier: will the gentleman yield. mr. ellison: i'm o of time. the speaker pro tempore: the gentleman from california. mr. dreier: i yield myself 15 seconds. the speaker pro tempore: the gentleman from california is recognized. mr. dreier: the gentleman's time did expire. i yield myself 15 seconds to say, as i said to my friend earlier, it's interesting that they continue to say we did nothing. associated health plans which democrats and republicans like, designed to drive down the cost for small businesses to provide health insurance, was submitted from this republican house to e other body, the democrats, in fact, killed that measure,

attempts were made to put into place real reform. with that, back by popular demand, the rules committee member from lawrenceville, georgia, for two minutes, mr. wood yawl. the speaker pro tempore: the gentleman is recognized for two minutes. mr. woodall: thank you for yielding, michigan. i return to the well because i wonder if folks have the same small business people in their district i have in my district? i wonder if folks are doing the same listening in their district i'm doing in my district? we are here today to respond to what folks have been asking for. to give credit where credit is due, last year, before the lt congress expired, democrats and republicans came together to extend for one year, i would have like to see it extended longer, but to extend for one year the tax cuts our small business men and women were demandin buthe second part of the indecision there in the business community, the anxiety and uncertainty that was there, is

what's goi to happen with the health care costs? what's going to happen with the health care plan? we have not solved that anxiety. we have not solved that indecision. because we've only gotten half of it done. we've gotten it passed in the house. but we've still got to take it to the senate and to the white house. in the spirit of giving credit where credit is due, i told folks throughout my campaign that i thought the president identified exactly the right two health care challenges. rising costs and access. then came up with exactly the wrong solutions tohose problems. we talk about what's going to happen to folks when the doughnut hole change goes away. didn't we have a chance last year? i'm new to congress, did we have a chance in the last congress to vote on that stand-alone doughnut hole closure? i don't believe we did. did we have a chance to vote on the pre-existing condition solution? i don't believe we did. did we he a chance in the last

corning to talk about the kids up to 26 issue? i don't think we did. but now we have the opportunity to vote on this one by one. the only option congress had last time under democratic leadership to vote for a doughnut hole solution to vote for pre-existing condition solutions to vote for inrance for kids under the age to have 26 was to do iwith the unconstitutional mandate a trillion dollars of new spendi and hundreds of new bureaucracies. i yield back. the speaker pro tempore: the gentleman's time has expyred. the gentleman from midwest. -- from massachusetts. mr. mcgovern: i remind the gentleman, we could have had a chance to vote on those individually. he did have a chance to vote on whether or not we could vote on them on the floor but he and republicans voted each and every one of those protections down. they voted against protecting people against pre-existing conditions, they voted against people, putting people on the

doughnut hole. the speaker pro tempore: the gentleman's time has expyred. mr. mcgovern: they voted against everything. mr. dreier: would the gentleman yield. the speaker pro tempore: the gentleman's time had expired. mr. dreier: i yield 30 seconds to our rules committee colleague in the name of comity and civil discourse to respond. . mr. woodall: i would say to my friend i absolutely voted no on every single one of those amendments in the name of repealing the bill yesterday. and now today i have returned to speak in favor of this resolution so that you can work with t committee leadership to bring each and every one of those provisions to this floor for a vote again for the very first time. for the very first time. i'm glad to support you in having that opportunity and i'm pleased to be here to support this resolution. the speaker pro tempore: the chair must ask mbers to bear in mind the principle that proper courtesy in the process of yielding and reclaiming time in debate and especially in asking another to yield must

foster the spirit of the comity that elevates our deliberations over and above mere argument. with that the gentleman from massachusetts is recognized. mr. mcgovern: i yield -- i reserve the balance of my time. the speaker pro tempore: the gentleman reserves the balance of his time. the gentleman from california. mr. dreier: may i inquire of my friend if he has further speakers? mr. mcgovern: i'm the final speaker. mr. dreier: madam speaker, with that i reserve the balance of my time. the speaker pro tempore: the gentleman reserves the balance of his time. mr. mcgovern: may i inquire how much time i have left? the speaker pro tempore: the gentleman from massachusetts has four minutes remaining. mr. mcgovern: madam speaker, i want to -- i have one additional speaker. the gentleman from virginia, mr. moran, would like to be able to speak for 30 seconds. mr. dreier: the gentlan told me he was the closing speaker. and now he has one additional speaker? mr. mcgovern: i was misinformed. the speaker pro tempore: the gentleman from virginia is recognized for 30 seconds.

mr. moran: i appreciate the lenience of the chair of the rules committee. thank my very good friend from massachusetts. what troubles me with this debate, and i would have particularly address myself to my colleagues on the other side of the aisle, is that we took two votes yesterday. one w to provide coverage for ourselves, the next, really, to deny it to our constituents. that i find troubling because we all have the right for guaranteed coverage regardless of pre-existing conditions. we have a choice of easy to compare health insurance plans. we have coverage for early retirees. women have equa premium coverage. we have access to affordable care, low cost preventive service. all these things. the speaker pro tempore: the gentleman's time has expired. mr. mrian: voted to deny i to our constituents. thank you. the speaker pro tempore: the gentleman from california. mr. mcgovern: thank you, madam speaker. the speaker pro tempore: does the gentleman from california

seek recognition? mr. dreier: i don't seek recognition. i continue to reserve the balance of my time. the speaker pro tempore: the gentleman reserves the balance of his time. the gentleman from massachusetts. mr. mcgovern: i yield myself the remaining time, madam speaker. the speaker pro tempore: gnat is recognized for 3 1/2 minutes. -- the gentleman is recognized for 3 1/2 minutes. mr. mcgovern: this is not a serious legislative effort. it's a series of sound bites that mean nothing. committees don't have to do anything. speaker boehner is quoted in the hill basically saying he's not going to hold any of these committees accountable. they can do it if they want to, whatever, if they don't, so be it. what we are dealing with here today is kind of a political ploy. not a serious legislative effort to replace anything. my friends on the other sidof the aisle have got up over and over again said we are really with you on pre-existing conditions, on the doughnut hole, allowing parents to keep their kids on their insurance until 26. yet they are really not.

because if they were they wouldn't have voted yesterday to repeal all those protections. and if they were really with us, we would be talking about today coming to the house floor with a series of initiatives that would actually continue to protect those benefits for consumers. but they voted to repeal all of that. i want to know how could anybody in this house, how can anody in light of the protections that have been put in place, go back to an individual who has been -- who is now able to get health insurance because we prohibited insurance companies from discriminating against them for pre-existing cdions,ow can you go to them anday we are going to change o mind, we are not going to do that anymore? how do you go to senior citizens who are struggling with that doughnut he and we have begun to close it, how do you begin to say we are going to raise your taxes? how do you do that? how do you go to a parent whose child can remain on the health insurance because we have

extended it to allow them to stay their until they are 22 to say that doesn't matter anymore? it doesn't make sense. that's not what people voted for. they didn't vote for you to repeal all those things. what they voted against was this distortion of a health care bill that you put out there, my friends on the other side of the aisle, that was very well funded by the most expensive advertising campaign funded by the insurance company in the history of our country. this distortion out there. everybody was against that distortion. that is not the reality. and as the months have gone by and the reality has become clear to people, as they have seen the benefits and protections, as people have been able to wrest control of their health care from the insurance industry, as consumers realize they have more and more rights, there are more and more protections built into the law to protect people of all ages, people say we don't want you to change that. we want that to be saved. i'll just say one thing, when my friends say we can do a little bit of this and little

bit of that, you can't. because it's like a domino effect. everything has an impact. so this is a serious debate. and there's indignation on th side of the aisle it is because we no that this is a big deal and real people have -- who have real challenges affording their health care and dealing with the complexities of a health care system and the inequities of the health care system are getting some relief and they will be hurt by what you are doing. so let's be honest here. atappened yesterday was my friends on the other side of the aisle went on record as saying we are against everything. today they were -- we are going to pass a resolution, i guess, that doesn't do anything, doesn't even require committees to do anything, but just says we are for all these nice feel good sound bites. that's not a serious legislative effort. that's why people are cynical. we can do better. i urge my colleagues to vote no on this. the speaker pro tempore: the gentleman's time has expired. the gentleman from california. mr. dreier: madam speaker,

there was a very powerful and resounding messa that came last november 2 and that is the imperative for us to create jobs and get this economy growing. the american people are hurting. in my state of california we have a 12 1/2 percent unemployment rate, part of the area i represent has a 15.5% unemployment rate in the inland empire in southern california. it is essential that we focus our attention on creating jobs. and i believe, i believe that the step that we are taking today is going to be very, very impoant as we pursue that goal. why is that? when we look at what passed last year, was signed last march 23 by the president,t was a measure that imposes mandates on small businesses.

jeopardizing their ability to hire new workers. it's a measure that imposes dictates on doctors, on doctors, a regulatory structure which undermines their potential to hire new employees. it is a measure which in many ways jeopardizes our potential to grow the economy because it is a dramatic expansion of the entitlement programs which democrats and republicans alike say need to be addressed if we are going to create jobs and get our economy back track. one of the things that i think is imptant to note is that peop have said that repeal of the health care bill in fact is going to cost $230 billion based on those c.b.o. numbers that came out. only in washington, d.c., can one cut a $2.7 trillion

expenditure and have it labeled as a cost. as a cost. why is it a cost? it's a cost because the measure that was signed last march 23 imposes a /4 of a trillion dollar -- 3/4 of a trillion dollar tax increase on working americans. now, what does that do to create jobs and get our economy growing? obviously it undermines, it underminesur shared priority of creating jobs and getting our economy ba on track. we know that with the $14 trillion national debt that we have and deficits down the road, we need to do what we can to rein in that spending, tackling entitlements, and dealing with issues le the one that we are facing today. now, having said that we all know that democrats and republicans alike want to

ensure that every single american has access to quality, affordable health insurance so that they can have access to quality health care. and i underscore the word quality because if one looks at the important research and development that takes place in the united states of america, i believe that the measure that was signed last march 23 and that we voted in this house to repeal yesterday, that that measure undermines the very important pursuit of research and development to deal with many of the diseases that e out there. so, madam speaker, i've got to say that we all say that we want every american to have access to quality, affordable health care, and everyone has acknowledged that that bill that was signed march 23 is flawed. in his news conference right after the election the president of the unitestates said he believed we need to address the so-called 1099

provisions that impose, again, and onerous mandate on small businesses. undermining their ability to create jobs. exactly what i was saying earlier. i quoted the distinguished assistant minority leader, the former majority whip, mr. clyburn, who on a program earlier this week said republicans and democrats need to work together to rectify some of the problems that exist with this measure. and as i said, it was two days ago that the president of the united states wrote his editorial in which he talked about in the "wall street journal" the need to reduce the regulatory burden that is imposed on the private sector so that we can get our economy going and create jobs and he also said on that same day that he is wiing and eager, madam speaker, willing and eager to work with republicans to rectify some of the problems that exist in this measure. now, i heard my friend, mr. matheson, this morning on national public radio state

that there was not a plan out there, and that's the reason having voted against the bill he did not vote for repeal because there is not a plan out there. i heard that at 7:35 this morning on wamu. and mr. matheson made that statement but the fact of the matter is, unlikehe plan that was signed into law march 23 of last year, that did not include the kind of bipartisan participation that we believe is essential, i've got to say that we are planning to proceed with this direction to the four committees that will allow virtually every mber of this house to be involved. we have 12 items and i'm happy to say that under this rule we have made in order, mr. matheson's amendment that we'll be considering in just a few minutes, that will add a 13th item to deal with the so-called doc fix. so that again underscores our desire to work in a bipartisan way to address some of the concerns that are there.

what is it that we say needs to be done? and frankly the president of the united states has indicated some of these he supports. we need to make sure that people do have a chance to purchase insurance across state lines which is now denied. we need to make sure that we have put into place associated health plans. a provision that passed a republican house but was killed by democrats in the senate when we lats were in the majority. we need to do everything that we can to allow for pooling to deal with pre-existing conditions. we need to make sure that we expand medical savings accounts that provide incentives for people to put dollars aside to plan for their health care needs. and one of the things that the president of the united states said in his state of the union message one year go right here in this chamber, we need to deal with meaningful lawsuit abuse reform so that we can have atension focused on patients and doctors and not on

trl lawyers. so i would say to my friend from utah, those are five items that are part ever our plan that i believean enjoy strong bipartisan suppo. so, madam speaker, i urge my colleagues to support h.res. 9 so that we can proceed with a bipartisan consideration of this very important goal that we share of creating jobs, getting our economy back on track, and ensuring that every single american has access to quality, afford and health insurance. with that i yield back the balance of my time. the speaker pro tempore: the gentleman yields back. all time for debate has expired. for what purpose -- for what purpose does the gentleman from utah seek recognition? mr. matheson: i have an amendment at the desk. the speaker pro tempore: the clerk will designate the amendment. the clerk: amendment printed in part b of house report number 112-2 offered by mr. matheson of utah. the speaker pro tempore: pursuant to house resolution 26, the gentleman from utah, mr. matheson, and a member

opposed each will control five minutes. the chair recognizes the gentleman from utah. mr. matheson: thank you, madam speaker. i yield myself such time as i may consume. the speaker pro tempore: the gentleman is recognized. mr. matheson: i rise today to offer an amendment to h. resolution 9. i did not support repeal legislation but i do believe there are bipartan improvements that could be made to the existing law. and i think now is the time for all of us in congress to roll up our sleeves and work together. the goal of this amendment is pretty straightforward. it is set up to maintain adequate health care service to stabilize the business practice of doctors and to take into account the long-term economic health of this country. we all agree that the doctor-patient relationship's a fundamental part of quality health care, but we have found that we have a flawed formula when it comes to setting reimbursement levels and every year threatens the ability of doctors toer care for patients and threatens the ability of patients to see their doctors. .

members on both sides of the aisle, stake holders throughout the health care community, citizens, have all recognized we have a flawed policy. how many times have we come together to provide a temp care -- temporary patch to this problem without fixing the underlying problem. in 2010 alone, congress took five different votes to delay a scheduled cut without stepping up and dealing with a permanent fix to the problem. by an overwhelming vote a few weeks ago, congress supported a one-year delay to a looming 25% cut in physician paynts. my amendment is very straightforward and clear. it adds an additional instruction to the committees of jurisdiction over health care legislation to replace the flawed sustainable growth rate formula used to set medicare parmtes -- payments for doctors and instructs congress

to find a permanent fix. it's the right thing to do on behalf of physicians as we look to make health care more sustainable and predictable and as we begin the yearing looging at this extremely complex yet highly personal issue, i think that adopting this amendment would be a good step to move in that direction. i ask my colleagues to support this amendment in a bipartisan way. i'll reserve the balance of my time. the speaker pro tempore: the gentleman reserves the balance of his time. for what purpose does the gentleman from california rise? mr. dreier: i'd like to claim the time in opposition to the amendment. the speaker pro tempore: the gentleman is recognized. mr. dreier: i claim time in opposition to say i support the amendment, madam speaker. i believe that as you look at the list of 12 items that we have in h.res. 9, they are not to be limited at all. i think that by virtue of our making the matheson amendment in order to deal we the so-called doc fix issue, we have made it clear we are already beginning

at this juncture to work in a bipartisan way in our quest to create jobs, get our economy back on track and ensure that every single american has access to quality, affordable health care. so this is again the beginning of a very important process. and i'm very pleased thamr. matheson has been able to play a role in fashioning h.res. 9 and i hope very much that with the president of the united states saying that he is willing and eager to work th republicans, to rectify the problems that exist with the past health care bill and the fact that mr. clyburn, the assistant minority leader said he wants to work in a bipartisan way to deal with these issues, will lead to strong, bipartisan support for mr. matheson's amendment and for the underlying resolution. withhat, i yield bk the balance of my time. the speaker pro tempore: the gentleman yields back. the gentleman from utah.

mr. matheson: i yield one minute to my colleague from new jersey, mr. pallone. the speaker pro tempore: t gentleman is recognized for one minute. mr. pallone: thank you, madam speaker. i rise in support of mr. mathes's amendme. i do want point out, though, that the democrats, when we were in the majority, many times tried to pass a permanent fix and did not receive support, i believe, from many republicans, except i believe we did have dr. burgess' of texas, his support. we passed a permanent fix, the doctors fix but because we could not get any real republican support, we had to continue to rely on short-term fixes. we did, however, as you knowat the end of the last session, pass a one-year fix which is in effect now. i do think this is a commendable response that mr. matheson has

and i certainly intend to support it, but the difficulty is, that the many years when the republicans were in the majority, they had the opportunity to pass a permanent fix and to deal with this issue and they always kicked the can do the road and did not cooperate with us on a bipartisan basis when we were in the majority to try to achieve a permanent fix. i certainly intend to work with the republicans to do that, but they are the reason we don't have it now. the speaker pro tempore: the gentleman's time has expired. mr. dreier: the gentleman from california. i was mistakenly under the impression that the gentleman had exhausted his five minutes. i'd like to reclaim the remaining time i have. the speaker pro tempore: is there objection? mr. dreier: i reserve the balance of my time. mr. mathston: i have no further speakers, i ask for the support of my colleagues, i yield back my time. the speaker pro tempore: the gentleman from california. mr. dreier: as we know, i have claimed time in opposition to the amendment but i will state once again, i am supportive of

the matheson amendment. i urge my colleagues, democrats and republicans alike, to come together and vote for adding what will be item number 13, which will be the beginning of wide-ranging reform to ensure that every single american has access to quality health insurance so we can, again, get our economy back on track and focus on job creation and growth

>> i don't think there's

translation errors. >> if you get the question, i'm happy to answer. >> what are you? >> i don't -- yao no. we always planned on doing -- as we said yesterday consecutive translation for the answers. it does slow things down and makes it more cumbersome. >> yeah, he -- he did give a fairly long first answer to the -- to the cannot secondtive translation. yes. mr. fowler? >> [unintelligible] >> a better question for the chinese. i would say this -- i think the answer that he gave be -- be it ben's question or the hans asking ben's question, in all seriousness, i think -- i think he -- you would all have to strain your recent memory to find a leader from china traveling outside of the country or in after meeting with the president on a number of occasions on this trip, making

such a frank admission of the improvement that needed to happen in the area of human rights and in the country of china. the process of translation was not the news yesterday. the news was -- was just that, that -- president hu realizes that -- that -- and told the world that china has to do better. we will certainly -- while we appreciate those words, the united states, the united states will -- will watch the actions -- of -- of, will watch the actions of -- of -- of the chinese government to make sure that they meet the words that were spoken in the white house yesterday. >> all right. >> the question was ib then -- was maybe a follow up. >> you have been waiting to use

that for a good while. >> if i i go -- if i ignore it, hans, you'll come in on the back end. >> regarding the re-election campaign, a couple of points on that. can we say now or can you say from the podium that the president officially runs for re-election? >> i think that will -- i think it is likely that's going to happen. obviously. i will say this, i think -- as the article says, the president is likely to file papers in the future that would -- that would officially make him a candidate. but i think it is safe to say, ben, that the -- that the president -- we have started and made some progress on getting our economy back -- back in order. i think the president wants to continue to do that. >> will it be -- for an [unintelligible] >> i don't know that -- that the

campaign is that far down the road in the plans of that. >> who will be the main voice here? >> well, i think it is the -- the article says that -- the political office close here and -- you got some -- a matter of duplication and efficiency that makes sense to house that operation over at the democratic national committee. >> i also wanted to ask as the state of the union comes up quickly here if you could give us some sense of where that speech is but maybe more importantly -- do you have some sense of the broad themes of where we're setting when you talk about that? >> i think what i would say about the state of the union is -- obviously this is a speech that will will center around and a grat majority of the speech will be on the steps the

president believes our country has to take to continue the economic recovery. steps in the short-term regarding jobs and the medium and long term to -- to put our fiscal house in order and increase our competitiveness and innovation that allows us to create the jobs tomorrow. i think you heard the president talk about innovation recently. he's spoken about it in speeches. one that comes to mind is in december in north carolina. ?>ñ

>> the judiciary committee will come to order. welcome to everybody. appreciate the members who are here as well as our witnesses. it's nice to see so many people in the audience interested in such an important subject as well. one quick announcement as most members know but not everybody else may know, we are expecting

votes in 15 minutes. however we're only having two votes and will be taking a recess for about 20 minutes. we'll return to resume the hearing. i'm going to recognize myself in opening statement and turn to the ranking member for his opening statement as well. the purpose of this hearing is to discuss the need to reduce the waste in our health care system caused by defensive medicine. this practice occurs when doctors are forced by the threat of lawsuits to conduct tests and prescribe drugs that are not medically required. according to a harvard university research study, 40% of medical malpractice lawsuits filed in the united states lack evidence of medical error or any actual patient injury. but because there are so many lawsuits, doctors are forced to conduct medical tests simply to avoid a possible lawsuit. taxpayers pay for this wasteful defensive medicine which adds to all our health care costs without improving the quality of patient care.

a survey released last year found defensive medicine is practiced by nearly all physicians. president obama himself acknowledged the harm caused by defensive medicine stating "i want to work to scale back the excessive defensive medicine that reinforces our current system and shift to a system where we are providing better care simply rather than simply more treatment." yet the health care legislation he signed does nothing to prevent defensive medicine. in fact, it makes matters worse by allowing trial lawyers to opt out of any alternatives to health care litigation proposed by the states. by exposing doctors to even more lawsuits if they fall short of any of the many new federal guidelines the law creates. the encouragement of lawsuit abuse will not only make medical care much more expensive, it will also drive more doctors out of business.

t the judiciary committee will model california health care reforms. those reforms have a proven record of reducing medicine, reducing health care cost and increasing the supply of doctors. there is a clear need for reform at the federal level. many states supreme courts have nullified reasonable litigation management provisions enacted by state lennel slate tgislaturleg. that may be the only means of addressing the state's current crisis in medical professional liability and restoring patient's access to quality health care. we need to stem the flow of doctors from one state to the other as they flee states to avoid excessive liability costs. doctors should feel free to practice medicine wherever they want and patients should be able to obtain the medical care they need. last year, the congressional

bulgt office determined the package would reduce the budget deficit by an estimated $54 billion over the next ten years. that was a conservative estimate. another cbo report estimate that is premiums for medical malpractice insurance would be an average of 25% to 30% blow what they would be under current law. rising litigation awards are responsibility for skyrocketing medical professional liability premiums. this report state that is the gao found losses on medical malpractice claims which make up the largest part of insurer's cost appear to be the primary driver of rate increases in the long run. the gao also concluded that insurer profits "are not increasing indicating that insurers are not charging and profiting from excessively high premium rates." the national commission on fiscal responsibility and reform

which was created by president obama also supports health care litigation reform in his 2010 report. "many members of the commission also believe that we should impose statutory caps on punitive and noneconomic damages and we recommend that congress consider this approach and evaluate its impact." as a usa today editorial concluded one glaring omission from the health care law was the significant tort reform which was opposed by trial lawyers. i look forward to hearing from our witnesses today who will help us access the extent of the current health care litigation costs. i'm now pleased to welcome the remarks of the ranking member, congressman john calliers. >> thank you, chairman smith and members. this is our first hearing in the

112th session, and i would like to just add for your consideration my recommendation s that we review, in connection with health care, the antitrust exemption that health insurance companies enjoy. mccarron ferguson exemption, and the sunshine litigation act that ensures and prevents secret settlements from being used to endanger the public safety are sealed, those who may be guilty of fraudulent acts, including the medical community, that in turn would protect all patients and protect professionally

responsible doctors from abuse of claims of wrongdoing. and then you remember the act that me and a former member, campbell, introduced that empowers doctors to negotiate and even playing field with health like us to kindly consider those measures that might be more important in an oversight hearing on a subject matter that members of congress have already announced that they're going to introduce, namely hr 5, which i expect will be coming down the pike one day

next week. the letters are already circulating on it, and so i find an oversight hearing on a -- for a bill that's being written to straight to our committee. it isn't exactly reverse, but there's a certain irony in the way this is coming off today. i just wanted to put it in the record. now, legislative hearings should be held prior to the oversight hearings. but also i hope that we can get into the issue of the shortage

of doctors in rural areas, which is critical and which many of us view would be increased by a cap on medical liability. this $250,000 cap, most of our witnesses here today realize that that may have a perverse effect but it's all over with. now, about the large number of cases file d, one out of every eight cases filed that ever results in a lawsuit, and that's

because, with the statute of limitations, attorneys have to include in the filings, many people who are -- may not be involved and are usually excluded from any trial liability, but they get counted as the ones that are sued. so i'm looking forward to a discussion about that. now, we have states that constitutionally preclude any limitation on medicare damages. kentucky and iowa limit the damages. dr. hoven is from kentucky. dr. weinstein is from iowa.

kentucky is one of the four states that constitutionally prohibit limits on damages, but there are other states,arizona, thnnsylvania, wyming, including trauma centerh provided such excellent care to our colleague, gabby giffords, are , the gentleman from arizona, m franks, for his opening statement and then we'll go to the ranking member of the constitutional law subcommittee. >> well, thank you, mr. chairman. mr. chairman, the medical liability litigation system in the united states, i think, by all accounts is broken and in desperate need of reform. the current system is as ineffective a mechanism for adjudicating medical liability claims as it can be, whh leads to increased health care costs, unfair and unequal awards for victims of medical malpractice and recuduced access to health

care for all americans. unfortunately the massive health care overhaul that president obama signed into law last year did not meaningfully address medical liability reform. thus we are here today to examine this continuing problem and evaluate national solutions to this, what i believe to be a crisis. one of the largest drivers of this crisis is the practice of defensive mecine. defensive medicine leads doctors to order unnecessary tests and procedures, not, mr. chairman, to ensure the health of the patient, but out of fear of malpractice liability. the cost of defensive medicine is indeed staggering. according a 2003 department of health and human services report, the cost of defensive medicine is estimated to be more than $70 billion annually. additionally, medical liability

litigation increases the cost of health care by escalating medical liability insurance premiums. this, in turn, leads to higher costs throughout the entire health care system and reduces access to medical services. however, mr. chairman, despite the increased costs medical liability litigation imposes, this litigation fails to accomplish its ostensible purpose, tort law first place, that is fairly compensating the victims and deterring future negligence. the system fails to compensate victims fairly for several reasons. first, according to the studies, the vast majority of incidents of medical negligence do not result in a claim and most medical practice claims exhibit no evidence of malpractice. so, victims of malpractice or most of them go uncompensated and most of those who are compensated are not truly

victims. mr. chairman, medical mal practice awards vary greatly from case to case, even where the claims and injuries are virtually identical. finally, attorneys regularly reduce damages awarded to victims by more than 40% through fees and costs. moreover, there appears to be little evidence to suggesthe current medical liability system deterz negligence, but the available evidenceeem oz to suggest the threat of litigation causes docrs not to reveal medical errors and to practice defensive medicine. and this, of course, subjects patients to unnecessary tests and treatments once again. so we must reform the medical liability system in the united states, mr. chairman. among other benefits reform could do some of thefollowing, could lead to a significant savings on health care. it could reduce the practice of defensive medicine halt the exodus of doctors from high litigatn states and medical scialties, improve access to health care, and save the american taxpayers billions

of dlars annually while increasing the affordability of health insurance. mr. chairman, meaningful medical liability reforms have worked in states such as california and texas and it is time for action at the federal level to extend the benefits of reform to all americans. and i thank you for the time and yield back. >> thank you, mr. franks. the gentleman from new rk, mr. nadler, the ranking member of constitutional law subcommittee is recognized for his opening statement. >> thank you, mr. chairman. mr. chairman, i've not prepared an opening statement because i didn't know we were going to have opening statements for rankings and the chairman of the subcommittees, but i'll make an opening statement nonetheless. i have always believed that this problem is the wrong problem and it is a solution in search of a problem. if you look at the evidence over many years and i've looked at the evidence since 1986 consideration of reforms to this problem in the new york state assembly when i was a member there, i've been involved with this off and on for 25 years,

you find that the real problem is not the excessive costs of malpractice or that -- the excessive costs of malpractice insurance is not caused by lack of theso-called tort reforms that are being advanced here and that have been advanced over the years, namely making it harder to get attorneys capping fees or capping recoveries. but these recoveries -- capping the recoveries wod simply be unfair to people who are very seriously injured. first of all, we know that most people who suffer real damages as a result of medical negligence never sue. so the amount of recovery is very small compared to the amount of costs. secondly, study after study has found that the real problem is that the states, some pple might say the federal government should do it, but that's a separate discussion, but the states in any event whose job it is under current law are not disciplining doctors tha

something like 90 or 95% of the claims dollars that are awarded come from 2% or 3% of the doctors. those 2% or 3% of the doctors are hurting patients, killing patients and should not be practicing medicine. they should be stripped out of practice and if they did, everybody else's malpractice premiums would go down because the amount of costs would go way down and the other 97% or 98% of doctors would find the malpractice premiums much reduced. now what do we find from the kinds of proposals that we consider? number one, in may 2009, wellpoint, a major malpractice insurance, said liability was not driving up health insurance premiums. the -- an economist at harvard university, in an article malpractice lawsuits are a red herring published by bloomberg in june of last year concluded that medical malpractice dollars

are red herrings. there is so many other sources of inefficiency. we know that preventable medical errors kill as many as 98,000 americans each year at a cost of $29 billion. and this -- these proposals would do nothing about that. we're ld that the defensive medicine is costing us huge amounts of money and incleesing the cost of the medical system as a whole. the gao, the government accountability office, issued a statement saying the overall prevalence in cost of defensive medicine have not been reliably measured so we don't really know. studies designed to measure physicians defensive medicine practices examined physician behavior and specific clinical situations such as treating elderly medicare patients with certain heart conditions. given their limited scope, the study's results cannot be generalized across the health care system. multiple gao studies concluded eliminating defensive medicine would have a minimal effect on reducing overall health care

costs. but the proposals that i assume will have before us, the proposals introduced by the colleague on the other side of the aisle every single year, all have in common putting a $250,000 or so-called -- limit on noneconomic damages, thatis to say on damages other than direct medical costs and lost ges, which may be the main damages for someone whose wages you can't measure, like a college student or a child because you don't know what his wages are going to be or would have been. $250,000 is not very much. they felt that $250,000 was a reasonable amount then. in today's dollars, or rather in 1975 dollars, tt's worth $62,000. would they have enacted a $26,000 cap in 1975? and if we wanted to take the 250 and inflate it to keep it at the same value, it would be over a million dollars today. so if we're going to be -- if

we're going to pass this kind of legislation, which i hope we won't, at the least we should put in an inflation factor and start at a million dollars if we want to duplicate what micra did in california. they did not prerhee dureduce ts at all. only after insurance reform was enacted in 1988 by california did the insurance premiums level off and actually go down a bit. but for the 13 years, the perfect experiment for the 13 years, which california had the tort reform, but not the insurance reform, the premiums went up 450%. when the insurance reform was enacted, premiums went down 8%. so maybe we should be talking about insurance reform instead of tort reform, but unfortunately that's not in front of this committ. so i think we're off on the wrong track if we're concentrating on this and i see the red light is on. i apologize for exceeding my time. i yield back whatever time i don't have left. >> thank you, mr. nadler. with that objection, other

members opening statements will be made part of the record and now i'll introduce our witnesses. our first witness is dr. ardis hoven, chair of the american medical association board of trustees. prior to her election to the board, dr. hoven served as a member and share of the ama uncil on medical service. she was a member of the utilization review and accreditation commission for six years and served on its executive committee. most recently she was appointed to the national advisory council for health care, research and quality. we welcome you. our second witness is joanne doroshow, executive director of the center for justice and democracy. miss doroshow is the founder for the center of democracy and ericans for insurance reform. she is an attorney who worked on issu regarding health care lawsuits, since 1986 when she directed an insurance industry and liability project for ralph nader. welcome to you. our third witness is dr. stuart weinstein, a physician spokesman for the health coalition on

liability and access. dr. weinstein is a professor of orthopedic surgery and professor of pediatrics at the university of iowa. he is a former chair of doctors for medical liability reform and we welcome you as well. just a reminder, each of the witnesses' testimonies have been -- or will be made part of the record. we do want you to limit your testimony to five minutes. and there is a light on the table that will indicate by its yellow light when you have one minute left and then the red light will come on when the five minutes is up. so we look forward to your testony and we'll begin with dr. hoven. >> thank you, and good morning. chrman smith, ranking member conyers and members of the committee on the judiciary, as stated, i am dr. ardis hoven, chair of the american medical association board of trustees and a practicing internal medicine physician and infectious disease specialist in lexington, kentucky. on behalf of the ama, thank you for holding this hearing today to talk about this very important issue.

this morning i will share with you results from ama studies that prove how costly and how often unfair our medical liability system is to patients and physicians. most importantly i will talk about a solution. that solution is a package of medical liability reforms based on reforms that have already been proven effective in states like california, texas, and michigan. our current medical liability system has become an increasingly irrational system driven by time consuming litigation and open ended noneconomic damage awards that bring instability to the liability insurance market. it is also an extremely inefficient mechanism for compensating patients harmed by negligence where cost courts and attorney fees often consume a substantial amount of any compensation awarded to patients. let me share with you some of the alarming statistics from an august 2010 ama report that

shs how lawsuit driven our system has become. nearly 61% of physicians aged 55 and older have been sued. before they reach the age of 40, more than 50% of obstetricians, gynecologists have already been sued and 64% of medical liability claims that closed in 2009 were dropped or dismissed. these claims are clearly not cost free and let's also n forget the emotional toll on physicians and their patients involved in drawn out lawsuits which is hard to quantify. out of fear of being sued, physicians and other health care providers may take extra precautionary measures known as the practice of defensive medicine. a 2003 department of health and human services report estimated the cost of the practice of defensive medicine to be between 70 and $126 billion per year.

every dollar that goes toward medical liability costs is a dollar that does not go to patients who need care, nor toward investment in physician practices, a majority of which are small businesses that create jobs that benefit local and state economies. the good news is there are proven examples of long-term reforms that have kept physicians liability premiums stable, but more importantly have ensured and protected patients' access to heal care. back in 1974, california was experiencing many of the problems we are facing today. in response, california's legislature enacted a competencive package of rerms called the medical injury compensation reform act of 1975, over 35 years ago, which is now commonly referred to as micra. while total medical liability premiums and the rest of the u.s. rose 945% between 1976 and

20, the increase in california premiums was less than one third of that, at just about 261%. recent public polls found a majority of americans support reasonable limits on noneconomic damages, and believe that medical liability lawsuits are a primary reason for rising health care costs. we look forward to the introduction of the health act that mirrors california's reforms and also protects current and future medical liability reforms at the state level. by supporting patient safety initiatives along side enacting meaningful liability reform, congress has the opportunity to provide access to medical services, reduce the practice of defensive medicine, improve the patient physician relationship, support physician practices and the jobs ap theyeciation for the you all to pass federal legislation that would bring about meaningful reforms. and thank you. >> and dr. hoven, thank you.

and miss doroshow. >> thank you, mr. chairman. mr. conyers, members of the committee, the center for justice and democracy of which i am executive director is a national public interest organization that is dedicated to educating the public about the importance of the civil justice system. this is the fourth time i've been asked to testify before a congressional committee in the last nine years on this very important subject of medical malpractice and i'm honored to do so. i also spoke at two different informal hearings chaired by mr. conyers which featured families includg chdren from all over the country whose lives were devastated as a result of medical negligence. one of those hearings lasted four hours as victim after victim told their stories and pleaded with congress not to cap damages and enact tort reform. they're all paying rapt attention today from afar and i will d my best to represent them, but i do hope this committee decides to hear from themirectly because these

families are always the forgotten faces of the debate about how to reduce health care and insurance costs. while i understand this is an oversight hearing and we do not know what bills may be considered by the committee, typically the push has been for caps on economic damages and other measures that force patients who are injured by medical negligence or the families of those killed to accept inadequate compensation. meanwhile, the insurance industry gets a pocket money that should be available for the sick and injured and they force many to turn elsewhere, including medicaid, for further burdening taxpayers. and by the way, with rard to the california situation, rates did not me down in california for doctors until 1988, when insurance regulatory reform was passed. it was not due to the cap. these measures will reduce the financial incentive for hospitals to operate safely which will lead to more costly errors. in fact, when congressional budget office looked into it, they looked at several studies that looked at the negative

health outcomes of tort refm and one of them found -- woul lead to a .2% increase in mortality in the overall death rate in this country. that's another 4,000 killed. now while i cover many issues in my written statement, i want to highlight a few other points. first of all, there is an epidemic of medical malpractice in this country. it has been over a decade since the institute of medicine sty finding 98,000 dieing in hospitals every year, costing 17 to $29 billion and experts agree there has been no meaningful reduction in medical airers in the united states. in fact, in november, just last november, hhs reported that one in seven hospital patients experienced a medical error, 44% are preventable. second, medical malpractice claims and lawsuits are in steep decline according to the national center for state courts and the insurance instry's own data. to quote from the harvard school public health study that the chairman mentioned, portraits of medical malpractice system

that is stricken with frivolous litigation is overblown and only a tiny percentage of victims ever sue. this is the press release issuing that study that said study casts doubt on claims that the medical malpractice system is plagued by frivolous lawsuits. premiums have been stable and dropping since 2006 and if you read the industry trade publications, you'll find out that insurers so overprice policies in the early part of the last decade that they still have too much money in reserves and that rates will continue to fall. and this has happened whether or not a state has enacted tort reform. as far as texas, health care costs did not come down when caps passed at all. applications for new licenses are only part of the picture. when it comes tohysicians engaged in patient care, in other words, coidering physicians who retire, leave state or stop seeing patients, the data shows that the per

capita number has not grown. in fact, the number grew steadily through 03 and leveled off. this is not a pattern you would expect of 03 tort reform law is responsible. when competing forphysicians, texas is more hampered by the extraordinary size of its uninsured population, which exceeds just about every other state. in terms of defensive medicine, cbo found that it was not pervasive. .3% from slightly less utilization of health care services, but even this is too high we what we don't -- wha cbo did not consider, for example, are what happens -- the burdens on medicaid, en there are no lawsuits, or the fact that medicare and medicaid liens and subrogation interests. if a lawsuit isn't brought, they can't be reimbursed. all the costs need to be added in. finally, these bills all ignore the insurance industry's major role in the pricing of medical malpractice insurance premiums,

an industry that is exempt from antitrust laws. this needs to be repealed. we need to do more to weed out the small number of doctors responsible for most malpractice and reduce claims, injuries and deaths and lawsuits. thank you, mr. chairman. >> thank you, miss doroshow. dr. weinstein. dr. weinstein, if you'll push the button on the mike, we can't quite hear you. there, thank y. >> thank you, chairman smith and ranking member conyers for holding this important hearing to consider fixing our country's broken medical liability system. i'm stuart weinstein, the ponseti chair and professor of orthopedic surgery and professor of pediatrics at the univerty of iowa. i've been practicing for more than 35 year and the past president of the american academy of surgeons. i would like to begin today by asking each of you to put yourself in someone else's

shoes. imagine your young pregnant mother living in rural america with no practitioner or your local hospital is closed its door to obstetrics or imagine your young doctor saddled with debt trying to pick a specialty. despite the great need for obgyns and general surgeons, you choose a safer specialty because of risk of lawsuits. and imagine being an orthopedic surgeon but you're facing high costs for liability insurance and the threat of potential litigation. to reduce your liability, you decide to avoid high risk cases like trauma cases or maybe you decide to retire altogether. dilemmas like these play out across america every day as medical lawsuit abuse undermines both our health care system and the doctor/patient relationship. moreover, medical lawsuit abuse is driving up health care costs at a time when we're still reeling from one of the worst recessions in modern times. i'm here today to ask you to create a climate for patient centered care by reforming the medical liability system that continues to put everyone's

health care at risk. the current system is clearly broken and there is widespread agreement among lawmakers, health care policy experts, opinion leaders and the public that reform is needed. today more than 90% of obgyns have been sued at least once. neurosurgeons, once every two years on the average. and as you know, most claims are without merit. this toxic litigation environment is fundamentally changing the doctor/patient relationship. it is driving doctors to get out of medicine or to practice defensive medicine. defensive medicine is the antithesis of health care reform because it increases heah care costs and has the potential to lessenccess to care and quality of care in two ways. first, doctors practice avoid assurance behavior including ordering tests, particularly imaging studies or referring patients in order to provide an extra layer of protection

against abusive lawsuits. a recent gallup survey found the fear of lawsuits was the driver hind 21% of all tests and treatments ordered by doctors which equates to 26% of all health care dollars, a staggering $650 billion. defensive medicine icludes avoidance behaviors where doctors eliminate high risk procedures like head injury, trauma surgery, vaginal deliveries or procedures prone to complications and they avoid patients with complex problems or patients wh seem la tithous. in 2008, half of america's counties had no practicing obstetrician. this shouldn't be happening in america. there are remedies to fix this broken system but it is imperative we act now before defensive medicine practices and costs associated with it becomes the standard of care. before health care costs go high are an unemployment along with it, before doctors shortages change the very nature of our

health care system. successful reform efforts in states, especially califora and texas have given us a blueprint for federal medical liability reform legislation. hicla outlined several legislative proposals that preserves state laws working effectively to make medical malpractice systems fair for both patients and health care providers and broaden coverage across the nation. i'd like to close by telling you about maryland gynecologist dr. carol ritter who stopped delivering babies in 2004 when her liability premiums hit $120,000 a year. she couldn't deliver enough babies to pay the trial bar's tab. today, dr. ritter maintains a gynecology practice and still delivers babies, but does it in haiti, and honduras and dozbosn. she says she does it for the sheer joy of what she does best, but she can't do it in maryland. i would say to you today, that something is very wrong when a

caring, committed physician like dr. ritter can't bring an american baby into this world for fear of frivolous lawsuits. ladies and gentlemen, you have the ability and i think the responsibility to help right that wrong. thank you very much. >> thank you, dr. weinstein. and i'll recognize myself for questions and dr. hoven would like to address my first question to you. you heard mention a while ago and you know of course, that the congressional budget office estimates that we would save $54 billion over ten years if we reduce the cost of defensive medicine. there are other studies, for instance the pacific research institute says that defensive medicine costs $1 billion. pricewaterhousecooper study puts it at $239 billion and newsweek reports that all told doctors order $650 billion in unnecessary care every year. i don't know which of those figures is correct, but they all

point to the same direction, which is defensive medicine is expensive and costs, let's say at a very minimum tens of billions of dollars, probably every year. my queion is this. who pays for the cost of all that defensive medicine? >> thank you. we all pay for the cost of that defensive medicine. at the end of the day, patients pay for it, we pay taxes that pay for it, we all pay for the cost of that defensive care. now, it is very important to realize, in the culture of fear in which we are all practicing medicine now, i use that term because i think it is very real, this most physicians want to practice medicine the best possible way they can. they want to do the best job they can, but what they recognize is that their clinical judgment is not allowed to carry any weight in the crt of law. so that in fact we do these

things for assurance, to protect ourselves. and at the end of the day, that's where those costs do come around. >> okay. >> thank you, dr. hoven. dr. weinstein, the congressional budget office estimates that we were to enact medical liability reform, premiums would drop 25 to 30%. who benefits from a drop in premiums of 25% to 30% or maybe i should say is the benefit limited to the physician and medical personnel or t? >> i think ultimately, mr. chairman, is that when medical ability premiums begin to drop, the culture of fear amongst physicians eventually will change. it is a cultural change that will have to occur over ime. and once that cultural change occurs, then the practices of defensive medicine which you've heard about over and over again will eventually change as well and our health care costs will go down. so ultimately patients and the american public will benefit. >> patients and the consumers benefit. my last question is to both dr. weinstein and dr. hoven. i want to ask you all to respond

to a pint that miss doroshow made that where he had said is sn't medical liability reform that reduced premiums it was inrance reform. and she gave the example of california. who would like to respond, either california or texas, dr. hoven? >> i'll go first. it takes eight to ten years to see the effects of these reforms when they are enacted. there really is not firm, hard evident that in fact the insurance change was the result. it was the fact that across the country it takes eight to ten years to begin to see the evolution of change when these reforms are put in place. >> okay. and dr. weinstein? >> i think all would agree that the system in california compensates the patients in a much more rapid fashion, and also more appropriate so patients who are injured get the majority of the reward. >> okay. and dr. weinstein, or dr. hoven, respond to this, if you would, in regard to the california

insurance reform, i'm looking at a newspaper article that said that proposition 103 that required a rollback of insurance premiums and not california's health care litigation reforms have controlled medical professional liability premiums. that's the assertion. accord to the orangeounty register, "a rollback under proposition 103 never took place because california supreme court amended proposition 103 to say that insurers could not be forced to implement the 20% rollback if it would deprive them of a fair profit." it is hard to see the correlation therefore between the insurance reform and the drop in premiums and clear the drop in premiums were a result of the medical liability reforms. i thank you, all, for your responses and i'll recognize the ranking member for his questions. >> thanks, chairman. and i thank the witnesses. where are we now in terms of the health care reform act, which

sometimes is derogatorily referred to as obama care. i use the term because i think it is going to go down historically as one of the great advances in health care. but didn't the health care reform act, which still, by the way, is the law of the land and will be until the president signs the repeal, which i wouldn't recomnd anybody to hold their breath on, we provided money for this very -- for examining this very same subject, section 10607.

does anybody know anything about that here? >> yes, sir. >> i do. >> mr. conyers, are you referring to the demonstration projects? >> yes. the $50 million for five-year period that demonstration grants for the development to states for alternatives to current tort litigation. that's right. >> if i could address that question, i would say that t way the demonstration projects, which haven't been funded, i don't lieve yet, the way the demonstration projects are outlined, i believe that the patients can then withdraw at anytime and choose another alternative. and i'm a full-time educator clinician scientist and when you design a research study, which allows patients to cross over or change, you don't get good information at the end of the day. it is not the good scientific method, if you will, if you want to find out what works best. so i would argue thathe way

that is designed has a flaw to it. and also there have been demonstration projects across the states for a number of years. >> if i could comment? >> could i? >> sure, you can. actually, in conjunction with the provision in the health care bill, hhs has actually awarded now a number of grants to many states, up to $3 million to develop alternative procedures and other kinds of patient safety oriented litigation reforms. so those grant proposals were already given. there was money. and these demonstration projects are in the process of being explored now at the state level. i live in one state wre that is true, new york. >> well, are we here -- can i get a response from all of our

witnesses about the whole concept of providing health care for the 47 million or more people that can't afford it? and are any of you here silently or vocally in support of a universal health care plan? >> i may speak to that, sir. >> sure. >> the american medical association recognizes this is not a perfect bill, but it is a first step in getting us to where we need to be in this country. medical liability reform, alternative mechanisms for dispute resolution that are to be funded through that legislation are under way as we speak. we in no way support a mechanism that does not recognize that every person in this country needs affordable care and access

to quality health >> well, the bill that was just repealed yesterday provided for millions of more people getting health care because we raised the ceiling on medicaid and we allowed the inclusion of children in the parents' health care plan until age 26, a seven-year increase. did that help any? >> we'll wait and see. >> we'll wait and see, you mean you wait to see if there are any parents that want to keep their kids included for seven more years? i haven't foundne yet that doesn't want that provision in the bill. >> let me go back to my earlier comments. access to care for everyone is what we want and need in this

country. >> well, i know it. yeah, that's a great statement. that's what i want, too. and that's why i was asking you about some of the provisions of the bill that was just dunked last night by the 112th congress. but i thank you, mr. chairman. >> okay. thank you, mr. conyers. the gentleman from new york is recognized for his questions. >> thank u, mr. chairman. i thank the witnesses for appearing today. i'll ask dr. weinstein, when i looked at the national commission on fiscal responsibility and reform, the president's commission to explore ways to reduce the deficit, it was recommended in there that hlth care litigation reform as a policy could save money and go to limit the deficit. deficit is a huge issue and a priority for many new members of congress, of which i am one.

do you agree that lawsuit reform could and would reduce the deficit? >> yes, sir, i do. i think that's been shown. i think the cbo report that senator hatch had requested information on showed it reduced it by $54 billion over ten years and depending on what study you look at, i think there's been widespread discussion in the media by members of congress and also by various groups who have looked at this issue, senator kerry and senator hatch this week, and i think both felt it would be a significant step forward addressing the medical liability issue. i think to us there's no question that this would indeed reduce health care spending. >> dr. hoven, would you agree? >> i most certainly would agree. i think clearly that's not chump change we're talking about. we clearly need to move ahead and that's a conservative estimate. it may even be greater than

that. >> and would you agree or disagree, miss doroshow? >> i disagree with that. i think what cbo did, unfortunately, avoided a number of verymportant issues that will end up increasing the deficit, burdening medicaid and medicare in particular. three things in particular. one is when you enact these kind of severe tort reforms, there are many people with legitimate cases that cannot find attorneys anymore, cannot bring cases. this is well documented as having happened in california. in kt fact, you had a witness before this committee in 1994 testifying t that effect and it is certainly happening in texas. so you have many people that are going to end up going on medicaid that otherwise would have been compensated through an insurance company. second, as i mentioned, there are liens and subrogation rights that medicare and medicaid have when there is a judgment or verdict in a lawsuit.

in other words, they can get reimbursed. ifhere's no lawsuit, that reimbursement is gone so they lose money in that regard. third, these kinds of measures are going to make hospitals more unsafe. there are going to be many, many more errors. even the cbo in its letter to senator hatch talked about one study that would increase the mortality rate in this country by .2% and that doesn't even include the injuries. so you're going to have more people hurt, more expense taking care of those people and frankly, when you enact any kind of cap on non-economic damages in particular, those have a disproportionate impact on senior citizens, children, low income earners and certainly senior citizens, what has happened in texas with the cap, those cases really are not being brought anymore.

so senior citizens who are on medicare who should have a right to seek accountability from a hoital that caused negligence, no longer are bringing those lawsuits, so medicare is paying. there are lots of costs that are going to end up increasing the deficit. >> but my understanding is that we're not looking to discourage legitimate lawsuits. we're allowing economic damages to be fully compensated in the subrogation rights that you refer to are derived from the econom damage calculation, because those are medical bills, past and future, the subrogation rights are derived from. what we're talking about is fosing in on the frivolous lawsuits that are there. i guess i don't follow your logic saying that's a reason why -- >> no, i think that's actually not what history shows. history shows when you cap non-economic damages, there are certain classes of cases that

are no longer brought. that is what has happened in california andhat is what this individual -- insurance dfense lawyer testified, before this very committee in 1994. entire categories of cases can no longer be brought. those that involve primarily non-economic damages. for example, one of the people we brought to washington a couple of times, a woman named linda mcdougle, she was the victim of negligence -- >> i think my time has expired there. thank you, mr. chairman. thank you for yr questions. ms. doroshow, if you want to finish the sentence, you may do so. >> well, she had an unnecessary double mastectomy because the lab misdiagnosed cancer when she didn't have it, and she came down to testify a few times but her damages were entirely noeconomic in nature.

a cap would have only affected cases, her case. >> okay. thank you very much. the gentleman from rginia, mr. scott, is recognized for his questions. >> thank you, mr. chairman. one of the problems we have in this discussion is a lot of the problems are articulated and then solutions are offered and very little effort is made to see how the solutions actually solve the problems. mrs. hoven, did i understand your testimony that physicians are routinely charging for services that are not medically necessary to the tune of $70 billion to $126 billion? >> i'm talking about defensive medicine. >> i asked you, are those

services that are not medically necessary? >> they are services that are medically indicated and medically necessary if you look at guidelines and criteria. however, what does not happen is my clinical judgment whether to employ that test is disregarded. >> are you suggesting that the services are not medically necessary if liability were not a factor, would the services be provided or not? >> it depends on the case. it depends on the situation. it depends on the environment of care. >> you're suggesting that in $70 billion to $126 billion worth of cases, services were rendered that were not medically -- were not needed? >> that's not what i said, congressman. >> what are you saying? >> i'm saying health care delivered in the examining room, in the operating room, is driven by what is based on clinical judgment and based on assurance

testing which is documentation and proving that in fact, that is what is wrong with the patient. when we talk about cost control in this country, we're talking about the fact that -- and this goes to the whole issue of cost containment, which is if, in fact, you would recognize my medical judgment and allow me to decide when it is important to do a test or not, then our patients would be better served. >> by not providing the services? >> if in my judgment, they don't need it. >> and you're not able to -- and you charge for services that in your judgment, are not needed to the tune of $70 billion to $126 billion? >> i do not do that. however, let me -- >> imean, your testimony was that physicians are charging $70 billion to $126 billion more than necessary and then blaming it on liability.

no is that your testimony? >> yes, that is my testimony. >> that it is not necessary, you're providing serves that are not necessary. either they're necessary or they're not. >> we're practicing at a culture of fear and that culture of fear lends itself to protecting oneself. i have been sued, congressman. let me tell you -- >> wait a minute. i just asked you a simple question. $70 billion to $126 billion. i just want to know what that represents. >> that is costs for tests and procedures which, if you look at guidelines, would be medically necessary, but my medical judgment is discounted. >> that based on your medical judgment are not -- should not have been provided? >> not necesrily. >> okay. well, i'm not getting -- miss doroshow, if physicians are charging for services that are not necessary, how is that different from medical fraud? >> that's a good question,

because in order to get reimbursed, to file a claim with medicare and to be reimbursed, physicians have to file a form and certify that the test and procedure, the services that they provided, are medically necessary for the healt of the patient so it does raise a question whether or not some claims may be false, if the physicians are not- >> if someone were to do a survey to say why did you provide the service when it was not necessary, what would be the convenient answer? if they asked you why did you provide the services that were not necessary, wh would be -- >> you say they -- >> because they're afraid of lawsuits so they can charge for services that weren't even needed. mrs. hoven, did you indicate that you supported a fair determination for medical malpractice issues so tha those who had bona fide cases could actually recover? >> most definitely, congressman. >> you're aware that it's

estimated 5,000 to ,000 wrongful death cases are paid every year? >> if you look at the statistics which are obviously very familiar, we are talking about apples and oranges here in many situations. we're talking about errors and adverse events as opposed to true malpractice and negligence. i think you have to be careful about the terminology. >> so what would be the barrier to 90% to 95% of the cases that were caused by medical errors from recovering? >> they should be able to recover. what the health act would do would allow them to recover. so that they would be appropriately rewarded for what happened to them in their loss. the health act talks about that in terms of all of the economic elements that e involved, including their health care. >> mr. chairman, my time has expired. >> thank you, mr. scott. the gentleman from pennsylvania,

mr. marino, is recognized for his questions. >> mr. chairman, yield my time. thank you. >> all right. we'll go to the gentlewoman from florida for her questions. miss adams. >> thank you, mr. chair. miss doroshow, i was looking at this institute of medicine study and you cited it in your opening statements and in your packet and it says that as many as 98,000 patients die annually due to medical errors, and what we found was it has shown to be exaggerated and unreliable. isn't that true? because based on shortly after its release in 2000, the study came under heavy criticism for imprecise methodology that greatly overstated the rate of deaths from medical errors. for example, the study data treated deaths from drug abuse as medication errors, and dr.

troy brennan, the lead harvard researcher, who compiled much of the data upon the report, which was based, later revisited his methodology and determined that the actual figure could be as little as 10% of the oim's estimate. is that true? >> well, what's true is that many other studies since then have found far more than 98,000 deaths. many other institutions that have looked into it, and just in november, hhs took a look at this issue again and they found that one in seven patients in hospitals are victims of an adverse event and 44% of them are preventible. also, there was a study just also released in november of noh carolina hospitals, north carolina is supposed to be a leader in patient safety, basically finding that since the institute of medicine report, patient safety has not improved at all and it really kind of

shocked the authors of this research study and they found that the errors that are causing deaths and injuries are continuing at an epidemic rate. so i would say that the 98,000 figure at this point is low and has been probably upped by every patient and government study that has looked into it since. >> so your testimony is that every adverse event is a medical malpractice issue? >> i'm looking at the studies and how they define it, and in for example the hhs study, they found one in seven medicare patients are the victim of an adverse event and 44% are preventible. >> again, are you saying that -- >> preventible errors -- >> isn't adverse, in your eyes, is an adverse event medical malpractice? >> a preventible adverse event is. >> the other thing i wanted to know is, i know who dr. hoven is representing and i know who dr.

weinstein's representing, but i couldn't find in your documentation where the justice, center for democracy and justice gets its funding. could you provide the committee with a list of your fellow and associate members so we have an accurate understanding of the point of view which you are representing, and also, you mentioned the demo projects and they are going to get grant funding. are you or anybody associated with the center for justice and democracy able to apply for those grants? >> apply for which grants? >> the ones for the research that you were speaking about earlier. >> well, we are tiny. we have about five people on our staff. we are not a high budget operation. so we don't really have the staff to do research projects like that. we hope other people would do that. >> again, i would like to know, like your fellow and associate members, are they going to be applying for tho grants?

>> our associate members, i would have no information about any of that. i don't know. those grants were already -- that process has already taken place. hhs has already granted the money in new york, for example, it granted $3 million to the office of court administration in conjunction with the department of health that is looking at a specific proposal that was presented to them. so actually, i know a lot about that proposal. i know about a few of the others, but that has already happened. >> are you aware, and this goes to all three of you and i think dr. weinstein and dr. hoven have said this and i want to make sure you are aware, also, there are certain professions in the medical field that have stopped practicing because they can't see enough patients in order to cover their insurance cost. just the co alone, not because they have done anything wrong, but they cannot see enough

patients to cover their malpractice insurance cost. >> well, i hope that also you're aware that since 2006, we have been in a soft insurance market. that's why you don't hear any longer about doctors picketing on state legislatures and capitals and trauma centers, et cetera, that we did in the early part of the 2000s when we were in a hard insurance market, when rates were going up 100%, 200% for doctors. this is a cyclical industry. this has happened in the past 30 years when rates have shot up like this. to believe the legal system has anything to do with it, you would have to believe juries engineered large awards in 1975, then stopped for ten years, then did it again from 1986 to 1988, then stopped for 17 years, and then started up again in 2001. of course, that's never been true. the claims have always been steady and stable, so what's driving insurance, rate hikes is

the insurance and accounting practices of the insurance industry. the solutions to that problem lie with the insurance industry. they should not be solved on the backs of injured patients. >> i see my time has expired. >> thank you, miss adams. the gentlewoman from texas, miss jackson-lee, is recognized for her questions. >> thank you. let me thank all the witnesses for their presence here today. i want you to know that each of your presentations are particularly respected and admired. i want to start with the reesentativerom dr. hoven, from the american medical association, and coming from houston, i think many of you are aware, proudly so, for me, that we have one of the greatest medical centers in the world, the texas medical center. i'm very proud of recent $150 million private donation just

recently received by the texas -- by m.d. anderson so i have a great familiarity with a lot of physicians and applaud their work and thank them for some of the life-saving research they he been engaged in. but building on the present national law which is, of course, the patient protection and the affordable care act, dr. hoven, one of your peers, one of your colleagues who happened to serve in this body, senator fritz, indicated that that law was a fundamental platform upon which we could now base our desire to go forward, to have additional provisions, so i just want to get a clear understanding. it's my understanding the american medical association supported the bill. is tt correc >> the american medical association supported parts of the bill. we believe that access to care covering the uninsured,

decreasing costs and improving quality are very, vy important first steps. >> so you would not -- you're telling me doctors would not suppor eliminating t pre-existing conditions and allowing children to stay on their insurance until age 26? >> we do support that. >> so i think a great part of the bill, you did and you probably would -- i'm not sure, maybe because you're before a large group that you don't want to say that the ama supported it, but it was my understanding that they did. i see someone shaking their head behind you. do you support the bill? did the ama support the bill? >> the ama did support the bill. we recognized it is an imperfect bill. >> you are absolutely right. i will assure you, those of us who are lawyers as well agree with you, because it is very difficult to write a perfect bill, but as dr. fritz said, this is a bill that is the law of the land. he even said he would have voted for it. i want to clear the record that this is a bill that really does answer a lot of questions but we can always do better.

let me indicate to miss doroshow, if i have it correctly, in the process of hearings, we have witnesseshat represent the majority view, majority is represented by republicans, chaired by mr. smith and we have a right to have a witness that maybe has a dierent perspective. so to inquire of your fundinger on whether you're getting grants, every hearing, we will find that we will have witnesses that will agree with the predinant view by the majority but we'll also have in this democracy, the right to have a different view. i suppose you have a different view from the health act that is before us. is that correct? there is a bill that you have a slightly different view, is that my understanding, between this question dealing with tort reform or medical malpractice? >> i certainly have a different view from the other witnesses, yes. >> yes. that's the point i'm making. >> yes. >> let me inquire and as i do that, i think the point that i

wanted to engage with dr. hoven was to say that i want to find every way that we can work with physicians. i want their doors to be open, i want them to be in community health clinics, i want them to have their own private practice, i want them to be og-gyn. in fact, dr. natalie carroll daly, former president of the national medical association, i count her as a very dear friend but also someone who counsels me. let me be very clear. answer these two queions. what is the reality of how many frivolous lawsuits we have? you have a notation of the ho harvard school of public health. number two, insurance companies, isn't that the crux of the problem? are patients the ones charging doctors $120,000 for insurance or is it the insurance companies who have documented that they will not lower costs even if

there is a low count of medical malpractice lawsuits in that doctor's area, in that doctor's office and in that state? isn't that true? >> absolutely. >> would you just comment very quickly? let me as i say that, say to you my mother had a pacemaker for 20 years. she had a procedure to give her a new one. the next day she was dead. i would like you to be able to answer my quesons if the chairman would indulge your answer, please. >> in terms of the harvard study, this is important bause this is the study that gets i think misrepresented often and figures about 40% of cases are frivolous. actually, the harvard study found the exact opposite. in fact, i will read the quote from the author of that study, the leadoff. some critics have suggested that the malpractice system is inundated with groundless lawsuits and that whether a plaintiff recovers money is like a random lottery, virtually unrelated to whether the claim has merit. these findings, the harvard school of public health findings, casts doubt on that

view by showing that most malpractice claims involve medical err and serious injury, and that the claims with merit are far more likely to be paid than claims without merit. there is a lot of extensive research done on that study and the headline of harvard press release was study casts doubt on claims that medical malpractice system is plagued by frivolous lawsuits. >> you didn't -- the gentlewoman's time has expired. thank you, ms doroshow. we will recognize the gentleman from virginia, mr. forb, for his questions. >> thank you, mr. chairman. i want to thank all of our witnesses. i truly believe all three of you are here to do what you think is in the best interest of our patients and of the united states. i feel the same way about the meers that we have up here, but we all have specific constituencie constituencies. as much as i love the chairman, i know there are times that he's from texas and he has a texas constituency. the gentleman from arkansas has an arkansas constituency. gentlewoman from florida has a

florida constituency. that'shat we tell everybody, the gentleman from florida, the gentleman from arkansas. i think it's important that we know when you're testifying who your constituencies are and two of our witnesses have set that forward and the congresswoman adams asked what i think is a fair question to miss dooshow, and that is, if she would just be willing toive us your sources of public funding and your membership, would you make those public so we know who those constituencies are? >> well, we're a 501c-3 tax exempt organization and we do not release the names and information about our donors. i will say that we get different kinds of funding. we get foundation grants, for example. in fact, i started the organization in 1998 and it was just myself, sort of sitting there writing letters to the editor with a little bit of money from a friend of mine, and i got a large grant from the

stern family fund -- >> miss doroshow, i only have five minutes. the answer is that you won't let us know who your membership is and your sources of funding? >> absolutely not. >> okay. then we'll take that into account. let me just say that sometimes, this is not as comex as we try to make it. the reality ishat everybody at home who watches these hearings anwho looks at these issues, they know when you're talking about not changing tort reform, who the true beneficiaries of that are. i mean, they're the trial lawyers and e trial lawyers are the ones that put the dollars behind it. the ial lawyers are the ones that will sit here and tell us if we don't do this, we're going to be impacted and we could be losing our jobs. on the other hand, we know who some of the major beneficiaries are if we do tort reform and that's some of our doctors and they tell us hey, if we don't do this, we could be losing our jobs. one of the interesting things, i can tell you, and tell this

committee, i have never in my entire career, had a single constituent walk in to me and say i am worried because i can't find a trial lawyer out there. but i have been over and over coming to me now, truly worried that they cannot find doctors to represent them. secondly, when i hear people talk about the 2% or 3% of bad doctors, that sometimes falls on hollow ground because the same people that will point and say oh, yeah we can't do malpractice reform because it's 2% or 3% of bad doctors fight us every time we try to get rid of the 2% or 3% of bad doctors, the same way they try to do when we try to get rid of the 2% or 3% of bad teachers. so my question to you is this. all three of you. i am a firm believer in modeling and simulation. we use it in the armed services committee to try to model for us

our most difficult weapons systems, our military strategies. we are so confident in it, although we know it has some flaws, that we put the entire defense of the united states sometimes on modeling and simulation that we can do. do we have any effortsat modeling and simulation that would help show us what the health care world would be like if we did tort reform and if we got rid of some of the litigation and whether it would benefit us or not, and if we don't, what can we do to help you move forward in that? dr. weinstein? >> if i can address that question, i think you have a model out there existing already. that's the most recent texas reform. you also have california which has a longer history. the texas reform obviously showed lowering premiums but increasing numbers of critical care specialists, particularly in underserved counties. that included also pediricians, emergency physicians, et cetera. if i might, could i come back to the issue of the frivolous lawsuits? >> absolutely.

>> congresswoman adams asked about this and i think the issues are the data would be that 64% of suits are either withdrawn, dropped or dismissed because they lack merit. less than 1% are actually decided for the plaintiff. when you come to the new york study which is called the harvard study, which looked at new york data, you're talking about extrapolatn of 280 cases of error. and in that study, errors could be someone falling in the hallway walking and that was lumped together with someone having a significant surgical error. the studyas been flawed as was pointed out -- >> dr. weinstein, my time is up. i don't mean to cut you off. i just wanted to say the point you made about having california and texas is so accurate. we hear over and over we're going to do these demonstration projects, but you have two monstrous demonstration projects and if we are going to ignore those, we are certainly going to ignore the other demonstration projects.

doctor, i don't have time for you to give me your answer but if you could submit it to us in writing or miss doroshow, we would love to have it on the modeling simulation part. i yield back. >> thank you, mr. forbes. the gentleman from north carolina, mr. watt, is recognized for his questions. >> thank you, mr. chairman. let me first apologize to the witnesses. i hato leave to go to a meeting and didn't hear anything other than a small part of the first witness' testimony. i assure you i will read it. i didn't come back to ask questions about what you said because i didn't hear what you said. i came back really to make sure that a perspective that i have on this issue gets into the record. because this is where i differ with a lot of my colleagues who

have thought that this is an appropriate issue for us to deal with in the u.s. house judicia committee. i'm kind of a states rights, old school guy on this. i have always believed that tort law was a matter of state law. i concede that we have the authority to write tort standards for medicare recipients and for the range of peoplehat we do, but general tort law, from my perspective, has always been a matter of state law. i happen to live in charlotte, north carina, and that is

right on the south carolina line, but i've never seen a hospital that straddles the line. they don't operate -- i've never seen a medical procedure take place in interstate commerce. i concede they use stuff that comes through interstate commerce. everything we do comes through interstate commerce. but i just think that this is an issue that my conservative colleagues, the states rightsers, have lost their way on. and were i a member of the north carolina state legislature, perhaps i would listen very intently to whether we need to in north carolina do tort

reform, and ey have at the state legislature level in north carolina. i happen to think that they are as intelligent and bright in the state legislature of north carolina as we happen to be here in the congress of the united states. we don't have any monopoly on knowledge on this issue. it is a state issue. it has historically been a state issue. i think my conservative colleagues have lost their way trying to make this a federal issue. so i want that in the record. they say i used to be the chair of the states rights caucus on this committee. maybe this is one of those times that i got that reputation as being the chair of the states rights caucus.

but we can debate whether state by state, states ought to be doing this. we could even debate whether we ought to be applying some different standards for medicare recipients or medicaid recipients. but i just think as a general proposition, having a debate about doing general tort law reform in the congress of the united states offends that constitution that we read the first day of this session on the floor. so that's my perspective. i appreciate you all being here as witnesses, and -- but i didn't want to miss the opportunity to put that perspective in the record in public. not that i haven't done it before. if you go back to the 111th congress, the 110th congress, the 109th congress and you go

all the way back to when i started, whatever congress that was, i think i have given my perspective on this over and over and over again, becae we have been talking about this for the 18 years that i've been he, and my position on it hasn't changed. we don't do malpractice interstate and if a doctor's operating on somebody that lives in another state, they can get into federal court and apply whatever state law it is that applied in that jurisdiction. that's my story. i'm sticking to it. i appreciate -- >> would the gentleman yield? >> i don't have any time left. >> the gentleman's time has expired. let me say to the gentleman we appreciate his consistency over the years and being for states rights and appreciate his being an orinal founder of the states rights caucus on the judiciary committee. we will now go to the gentleman

from arkansas, mr. griffin, for his questions. >> thank you, mr. chairman. dr. weinstein, i am particularly interested in the gallop poll that came out in february 2010, over the last year or so i talked to a lot of doctors in my district who are advocates for some sort of medical liability reform, and during the last year, this poll came out and i was struck by the numbers, and i saw that you referenced this gallop poll in your statement. the first question i have for you is the data in this poll, the one that came out in february, is it consistent with other data that you've seen, particularly the point that physicians attributed 26% of overall health care costs to the practice of defensive medicine,

and then secondly, that 73% of the physicians agreed they had practiced some form of defensive medicine in the past 12 months. so my first question is whether that data in the gallop poll is consistent with data that you have seen elsewhere. >> mr. griffin, i think the data on the cost of defensive medicine vary considerably from low estimates of $56 blion over ten years to this was the largest estimate of $650 billion. you can go back to studies like kesler, mcclellan and others who looked at it and the costs of defensive medicine are astr astronomic. it is not going away. a very well-known study done not by doctors, but lawyers, the harvard group, shows 90% of physicians in the state of pennsylvania practice defensive medicine. when they surveyed residents, doctors in training across all

residencies in pennsylvania, they found 81% felt they couldn't be honest with patients. they viewed every patient as a potential lawsuit and the most depressing statistic of all was 28% of residents across the spectrum in pennsylvania regretted their choice of becoming a doctor because of the liability crisis. >>ith regard to the pennsylvania data that you're discussing, have you turned that data over to the committee? >> yes, sir, that's in the written testimony. >> what procedures, could you give us some specifics on the procedures that are usually subject to the practice of defensive medicine? >> sure. defensive medicine breaks down, two areas. one is assurance behavior. you need to assure yourself you haven't missed something. as has been pointed out by dr. hoven, in medical school you're trained to take a history, do a physical examination and try and put this puzzle together. occasionally you'll need one test, a lab test, or imaging study, and then you will take an

orderly progression, but the climate of fear that exists from the medical standpoint is such, you need to keep taking that progression, that orderly progression, to the very end from the beginning, because should you miss something, your life and your ability to practice medicine and your craft is over. so that's the assurance behavior. avoidance behavior is most medical students come out of medical school, in our school, over $100,000 in debt, so when they choose a career, they come out of our orthopedic surgery residency able to take care of anybody who is brought in off the highway who has had a traumatic injury and put them together again, but the majority of them don't want to do that. they don't want to cover the emergency room because that's a high risk environment. so you avoid things that are high risk. you avoid ob, if you're a neurosurgeon, you don't take care of children's head injuries. doctor doesn't do vaginal deliveries or any deliveries at all. that's how the avoidance

behavior affects the american public. >> so getting down to the specific medical procedures that are usually subject to that, you mentioned head injuries, you mentioned ob-gyn. can you get even more specific in terms of the actual procedures? >> i think just head injuries in children, there are veryew neurosurgeons willing to take care of a head injury in a child. at one time in this town, 40% of ob-gyns weren't doing deliveries. this was a few years ago. one in seven no longer deliver babies. they now get out, on average of obstetrics at age 48 which would be a mid-career point. you are just reaching your peak. you have another 20 years of practice. but now ob-gyns stop practicing obstetrics at age 48 because of the liability risk. >> if you have a number of tests that are being conducted using equipment and using resources and in some instances they are

not necessary, they are more to assure or to avoid, can you comment on that crowding out tests that need to be conducted that are necessary? >> yeah. i think that when you crowd a system with i won't say that they're unnecessary tests. the gentleman earlier sort of implying that these tests are illegal, that you're doing, u're defrauding medicare. i think that's not the truth. but basically as i mentioned, when you progress to solve a puzzle in taking care of a do t scan or myogram or mri but we can't afford to do that anymore. so what happens is you use valuable resources, imaging resources in particular, to do defensive medicine, to take that step number ten and bring it down to step number two, and you deprive someone who actually needs that resource from the use of it.

>> so if a young child who has a head injury comes into the emergency room, in an ideal tuation, you're saying a doctor would lk at that child and say well, i'm going to start at step one, and if i think i need to go to step two, on my way to ten, then i'll do that progressively but in the current environment, they see the child and they automatically say we got to do one through ten? >> i think if there is a pediatric neurosurgeon or neurosurgeon willing to take care of that injury at that hospital, because i think three-quarters of our emergency rooms are at risk because of the avlability or lack of availability of on-call specialists, that doctor will proceed with the entire battery from step one. >> and not progressively? >> not necessarily ian orderly progressive fashion which you learned in medical school. >> thank you, mr. griffin. appreciate those questions. the gentleman from georgia, mr. johnson, is recognized, who had the advantage of going to law school in texas. he's recognized for his

questions. >> thank you, mr. chairman. dr. weinstein, it's a fact, is it not, that doctors are human beings? >> yes, sir, they are. >> and it's also a fact that human beings are not perfect. isn't th true? >> absolutely. >> so doctors, just like human beings, make mistakes. would you disagree witthat, dr. hoven? >> errors occur. >> errors occur. mistakes can be made, isn't that true? >> they can. >> by doctors. correct? >> that's true. >> and so now, when a doctor makes a mistake, it n cause a death or it can cause a

diminished quality of life in the victim. would anybody disagree with that? hearing no objection or hearing nothing, i will assume that you agree with me on tha w, that diminished life of a victim of what i will refer to as medical negligence, it has a value that a jury puts on it, and we call that non-economic loss what? lawyer doroshow, what do we call that, non-economic loss, recovery for? >> permanent disability, blindness, disfigurement,

mutilation -- >> pain and suffering for whatever may arise as a result of the doctors' negligence. pain and suffering. non-economic loss. that is worth something, don't you think? now, the question is how much is pain and suffering worth. that might be a little different for cornesha scott who, back in little rock, arkansas, in 2007, 29-year-old went for a partial thyroidectomy to remove a goiter and 12 hours later, she began to develop a shortness of breath and began feeling her neck tighten, despite complaints to the nurses, her condition was not appropriately monitored or reported to a physician.

she went into respiratory arrest and suffered severe brain damage. it was later discovered that she had a hematoma at the site of the surgery. she is now bedridden and totally dependent on her mother for care. now, that's pain and suffering. do you think that pain and suffering is worth more than an arbitrary cap of $250,000? if you do, i disagree with you. if you think that lauren lalini out in denver should be limit to $250,000 for pain and suffering, s went to a denver hospital for kidney stone surgery in febary of 2009. six weeks later, her health began to deteriorate, with feelings of exhaustion and a loss of appetite. after a week of her illness, she

became jaundiced and had an inflamed liver. the doctors at an urgent care clinic diagnosed her with hepatitis c. 35 other patients became infected with hepatitis c at that hospital at the same time. a state investigation revealed that the outbreak began with a hospital staff person who used hospital syringes and painkillers during drug use. and miss lalini is now convicted and sentenced to a lifetime of pain and suffering. how much is that worth? is that worth $250,000? no. it's worth a whole lot more than that. and what this legislation does

is puts an arbitrary cap of $250,000 on non-economic losses, pain and suffering. it is actually an affront to the united states constitution, the seventh amendment which guarantees people a right to a jury trial when the amount in controversy is in excess of $20. so on one hand we're talking about eliminating health care for everybody and now we're talking about one day later, wee talking about denying access to the courts for people who have -- who have been hurt and that's about all i g to say. thank you. >> thank you. the gentleman's time has expired. next, the chair recognizes mr. ross from florida for five minutes. >> thank you, mr. chairman. you know, being from florida, it's interesting, weid a

little bit of research and saw that for an internal medicine physician, they pay as much as $57,000 for medical malpractice but yet in minnesota, they pay just a little bit more than $3,000 which makes you wonder whether the injuries are more severe in florida than they are in minneso, or whether it's a result of the litigation environment. what i would like to do is step away from the substantive part and not talk abo damages but let's talk about procedure. for example, in my practice i would probably say the vast majority of my cases have resolved at the mediation level, whether it be court ordered or voluntary mediation seems to work. i guess, miss doroshow, i would k you would you not agree that dispute resolution as opposed to actual trial is more efficient, more effective in getting the needed benefits to the injured parties? >> 90% of cases do settle but it's because of the threat of a jury trial, the possibility of a jury trial, that that happens. when you take away the jury trial option, that won't happen. >> well, i'm not saying take

away the jury trial. i'm saying when you're in the dispute resolution a lot of factors come into play whether you want to settle the case. in some cases it's the burden of proof, is it not? >> well, the cases -- the studies i have looked at, at least, show the cases that settle, there is negligence, there is error, there is injury. the cases that end up, the small number of cases that end up going to trial are the ones where it's a little more unclear anthey need a trial to resolve it. so i think the system as it is right now is very efficient, because most cases do settle and that's really -- that's a system that really shouldn't be played around with. it's working now. >> but in terms of burdens of proof, different jurisdictions have like scintilla of evidence compared to clear and convincing. would you not agree burden of proof would be a factor that would come into play? >> for example, in texas, for emergency room injuries, they made the burden of proof so

incredibly difficult that it's knocked out all -- every single emergency room negligence case. so what has happened there is the state of care in emergency rooms has become much more unsafe, and that's sort of what's happened there. yeah, it does vary and state law does determine that. >> dr. hoven, with the ama, are there not practice protocols that physicians groups, specialties, subscribe to in the performance of their duties? >> yes, thank u for that question yes. the ama has been up front going forward for many years, in fact, since the mid '90s in terms of measures, development, quality guidelines, outcome objectives. we have had a major role in this and it's been applicable and it is now standard of care. these guidelines are extremely useful in allowing us for evidence-based care. >> not only extremely essential, but they also sometimes leado the practice of defensive medicine. in other words, if your practice

protocol requires if this diagnosis is made, then this form of treatment is required, sometimes physicians may do that even though they may not need to just to stay within the realms of the practice protocols? >> that is correct. in fact, legislation needs to be out there that gives me, using my clinical judgment and my clinical knowledge, the ability to provide the best care for that patient at that particular point in time. >> dr. weinstein, wouldn't you agree that if we had established practice protocols and we require by way of the fundi of mecaid or medicare that it's contingent, receipt is contingent upon established practice protocols in each jurisdiction and those practice protocols are followed, and the burden of proof would then have to shift from the physician to the plaintiff to show that by way of either a clear and convincing evidence that they deviated from the practice protocols, or committed egregious error, would that in and of itself provide a substantial reduction in the

amount of litigation and the amount of awards out there? >> i think that first of all, all medical groups, including the ama and others, have been working on guidelines, appropriateness criteria, to help physicians establish a safer method of practice. but all patients don't fit in every single guideline. patients are individuals, they have dferent co-morbidities so they provide a general framework in which to start. but it's not a one size fit all. medicine is not a cookbook that you follow this step and go to this step. it has to be a physician interacting using their clinical skills to determine whether that guideline fits that particular patient or that appropriateness criteria needs to deviate for that -- >> in those cases, where practice protocols are employed, should not the practicing physician have at least the defense that the burden of proof would now shift to -- the doctor

has established that he did the following protocols that were required of that particular specialty and now there must be a showing by a greater wght of the evidence, clear and convincing evidence, that then the physician deviated from or committed egregious error? >> i think again, i'm not a lawyer. i can only speak from a phician's standpoint that the guidelines and appropriateness criteria are very good foundations for me as a practitioner to follow or to look at when i see an indivial patient. but i have to use my skill and judgment acquired over, in my case, 35 years of practicing medicine, to decide if my patient fits exactly that paradigm. otherwise i need to have the ability to not have my hands tied. otherwise i'm going to hurt my patient. >> thank you. >> the gentleman's time has expired. the gentleman from south carolina. recognized for five minutes. >> thank you, mr. chairman. miss doroshow, i will ask you a sees of what i hope are narrowly tailored questions in hopes of an equally narrowly tailored answer, okay? do you support any toughening of

rule 11 sanctions for frivolous lawsuits, lawsuits that are dismissed or lawsuits where summary judgment is granted? >> i mean, i think rule 11 is probably sufficient enough but -- >> so you do not -- >> i would prefer that to ever taking away the rights of victims. >> i may not have phrased my question well. forgive me for that. do you support a toughening of rule 11 sanctions for frivolous lawsuits? >> i think obviously i would have to see the provision. i don't have a problem with that. >> so the answer is you don't have a problem with that? >> i don't have a problem with that. >> you could support that? >> provided i looked at what you were asking me to support. >> how aboutthis. how about -- >> reasonable request. >> how about joint and several liability reform. do you support that or not? >> absolutely not. >> do you support a higher quantum of proof for emergency

care? >> absolutely not. >> do you support any tort reform? >> i support provisions that would repeal tort reforms currently in existence in states. absolutely. >> do you support any tort reform? >> for example? >> well, i just gave you four of them. we were 0 for 4. >> i support a law that would prohibit confidential settments where there are public health and safety issues involved. i would support that tort reform. >> dr. hoven, many of us oppose the current health care law because in our judgment, individual mandate is beginning to make the commerce clause so elastic as to be amorphous. for those of us who want to support tort reform, draw the nexus for us, draw the connection where it's an

appropriate use of congressional power to supplant state tort laws and while you're doing it, do we also surrender the states determining scope of practice issues if you federalize tort reform? >> there's a role for both. the law we're talking about, the health act, in fact, supports states in what they have already done and proffered and what they'r putting into place. in states that don't have it such as mine, kentucky, we desperately need the federal regulation, the federal legislation, to get us to a different place. for all of the reasons i've talked about before which have got to do with access and cost. so there's a role for both but the health act recognizes that i believe, and would achieve what we're looking for in the global topic of medical liability reform. >> when you say the health act recognizes that, you're referring specifically to the state flexibility provision that -- >> that's correct. >> -- doesn't supplant current state law? >> that's correct. >> is there any concern on behalf of physicians that if you

allow congressional encroachment, if you will, into this area, that congress will also want to decide scope of practicessues between optometrists, nurses and other traditionaltate issues? >> no, these are state issues. we fully recognize scope of practice issues. we have been doing that for years and years. >> you don't think we lower the bar onhe commerce clause at all by federalizing tort reform? >> i trust you. >> i'm a lawyer. don't. final question. implicit, actually, more than implicit in some of the questions that have been asked this morning, has been very thinly veiled accusations of health care fraud, medicare fraud, medicaid fraud, for what we consider to be defensive medicine. would you take a crack at explaining the predicament physicians find themselves in with this culture of litigation and defensive medicine? and defensive medicine? >> as i outlined before, as a

physician you have skills, history, physical examination, you put laboratory tests or imaging studies together to come and solve a puzzle for what's wrong with your patient or how to treat them, and there's an orderly progression. if this turns out this way, i might go in this direction or another direction. if you have this progression of multiple steps to get to the end, you don't stop at square one and say, let's see how it works. how does this treatment work? if they're not getting better we'll do something else. from the diagnostic standpoint you do everything because of fear of an adverse outcome or something happens, then youe at risk. what happens is the patient gets everything out there under the sun as opposed to just a stepwise progression toward an orderly diagnosis or management plan. >> i'd like to thank all three panelists and thank mr. chairman. >> thank you to the gentleman from arizona, mr. quail, is

recognized for five minutes. >> thank you, mr. clarm. thanks to all of you for showing up. this is a very important topic if we're going to address and take control of our health care costsoing forward. it's important to have access to quality care. my first question is to dr. wine steen. you say doctors have faced the brunt of abusive lawsuits. while some insurance premiums have leveled off recently or decreased slightly in some areas, they remain a serious burden for many doctors across the country. moreover with the implementation of the new health care bill, we may discover this has been a brief lull before the storm. can you expand on what you mean by the brief lull before the storm and why the insurance premiums may have gone off in a lull for a short amount of time? >> i think we're in a lull, if you will, until we see how the health care reform act plays out and what happens here in this

body and across the way. i think that right now we need to look at the provisions of that and what actually becomes law, what actually is implemented to see whether other avenues. just in the state of massachusetts recently the supreme court, i think, reinstituted a suit against a physician who had prescribed high blood pressure medication for his patient. now the phycian is sued for treating the hypertension. there's avenues to be spur sued by a trial bamplt thiss a very fertile area. a front page article in "the new york times" show how hedge funds investigate in liability lawsuit. this is big money and big business. it's unfortunate. with the new health care law we have to see how things unfold and what avenues are opened by that. >> staying on that with the high-risk specialties and if you look at the doctor -- the aging doctor population that's

happening, you don't have many people going into the profession and especially in high-risk specialties, if we cannot control the liability insurance costs, how will that affect the quality of care for these differt areas of expertise? >> when you lose high risk specialties, i think every american is in danger when they have a problem, let's say, in your state, arizona. that was witnessed several weeks ago unfortunately, but if you don't have the specialists available and have level one trauma centers available in a recent distance, men nits matter. ij the american public now can no longer expect that they can be traveling along a highway, have an accident and go to an emergency room and be saved. that will an unrealistic expectation because of the shortage of high-risk specialists but the unwillingness to put themselves at risk by taking on high-risk cases. do you know the average? from talking to people in the

ob/gyn profession it's over $1,000 just to turn on lights, what's the aench in high-risk specialties? >> it depends on the state. in some areas even in high-risk spine surgery, for example, physicians pay high liability premiums. they're very high. >> doctor, i was wondering, there was enormous financial toll on doctors when they have to defend frivolous lawsuits. what is the emotional toll, and how does that affect the doctor/patient relationship for that doctor going forward? >> it's very traumatic. doctors want to heal, provide care and take the best possible care. when all of a sudden you're confronted with a lawsuit over which you have no control or you were part of something else in the suit process, it devastates you. i was sued. i tried to talk about that a little bit ago. i was sued for five years after

that, and this goes to the issue of practicing defensive medicine. i refuse to see any -- add any new patients to my practice. i've found myself constantly thinking what have i missed? what have i missed? even though i knew i was bringing the best potential care there. this affects the physician's headlight and their family's health and most importantly it begins to affect the relationship between the patients and the doctor. all of a sudden that threat, that fear of threat and trauma is out there. i consider myself a very good physician. yet, in that process i felt that i was damaged by the process. >> okay. thank you very much. mr. chairman, i yielback. thank you. >> the chair would recognize the chairman from the subcommittee that has jurisdiction over this issue, mr. franks from arizona for five minutes. >> thank you, mr. chairman.

doctor winestein, opponents of medical liability reform often argue, as you know, that reforming the medical liability system especially through limits noneconomic and punitive damages will lead to the practice of medicine itself being less safe. i think that's a pretty critical, important question to answer. based on your experiences, do you believe that placing limits on noneconomic and punitive damages will affect whether doctors practice high quality medicine or not? >> no, i don't, sir. >> it shouldn't. >> it's pretty clear that the current syem we have neither protects patients who are injured nor does it make the system safer. we are not a country of infinite resources, and when you talk about economic damages, those can be quantified. when you talk about noneconomic damages, there's no way those are quantifiable, and without infinite resources, i thinkt

does not affect the quality of care in a system such as that. >> do you have anything to add to that? >> i would also add that in this era in the last 10 to 15 years, medicine, physicians have taken huge leadership roles following the iom report, for example, in moving medicine to a different place. improving quality and proving systems, diminishing errors. so this discussion about physician responsibility and liability in this setting is difficult because we, in fact, have made major, major strides in improving health care throughout this couldn't. >> dr. weinstein, i thought one of the most striking pieces your written testimony is about doctors entering specialties or

treats high-risk patients. how could legal reform simila to california's mrcia or the health act that passed the house in 2003 here positively affect doctors' decisions to practice in high risk specialties or treat high risk patients? >> i think with reasonable reform physician culture will change. physicians will then feel it's worth the risk. there's always a risk when you talk about high-risk medicine, but it's worth the risk to use the skills that you leard in your medical school and residency training and fellowship training to help restore function, alleviate pain and restore life to individuals. unless a reform such as those previous ones you've outlined is implemented, that just won't happen. >> dr. hoeven, i have to tell you i'm extremely grateful to

the medical community because of having them have a tremendous impact in my own life. i had major surgeries starting out at birth, and so i think that, you know, the importance of allowing doctors to pursue that calling that they have to try to help heal their fellow human beings is a profound significance in our society. if i could ask sort of a hypothetical or ask you to reach out, if you could do one thing -- dr. weinstein, i'll put you on deck, too, to answer it. if you could do one thing in terms of public policy we might pass that would strengthen the doctor/patient relationship, that would allow you as a doctor to work better with your patients and would also deliv the best care possible where you would protect both the patient and doctor and the entire medical process in terms of liability reform, what's one

thing you would do? what's the one priority you've dealt with us? if you could only have one. >> thank you for your comments. the answer to that is stabilization. the medical liability situation must be stabilized, and that stabilization includes addressing economic and noneconomic payments. it also ha to remove from us in that stabilization the culture of fear. and when somebody is looking over our shoulder all of the time. that will improve and continue to enhance the patient/physician relationship. it will stabilize care in this country. it will improve access to care, and it will improve quality. >> thank you. >> i would say we need a rational solution to this situation, because right now it's irrational. nobody has benefitted from it. unless we have some type of stability, injured patients will

not get compensated appropriately and the system will never get better because system errors require a system of transparency. you can only have a system of transpency when you have a stable situation where everyone can work together towards the same end of making a safer health care system. >> thank you all for coming. thank you mr. chairman. >> the gentleman's time has expired. the gentleman from virginia is recognized. >> i'd like to follow-up on a question asked by e gentlemen from south carolina, mr. goudy. one of the questions he asked you reeltded to whether or not you would support a higher proof of negligence or substandard care for emergency care. you said not just no, but absolutely not. so if we have -- all of us have at some time or another been in a theater, a sporting event, a stadium where somebody becomes injured or ill, and the first question is is there adoctor in the house? now, you expect that doctor to

identify themselves and come forward and help that individual if they know very little about the circumstances, don't know what this patient's medical records are previous to the treatment, what they might be allergic to, to try to save their life? you wouldn't provide a higher standard of protection for that doctor under those circumstances? >> the standard is already pretty high? you're not finding lots of emergency room cases moving forward in this country. when you do that, first of all, the emergency room according to -- >> you would support a higher standard of -- >> no. >> that's the question he asked you. higher standard of negligence for somebody in an emergency situation? >> the emergency rooms are the most uafe and dangerous parts of a hospital. that's according to the institute of medicine. it's where many people go who don't have insurance. >> how about a theater or a sporting event or somebody

injured in an accident on the highway where a doctor happens to be coming by to provide