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 efforts at 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 pediatricians, 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 congresswoman adams asked about this and i think the issues are the data would be that 64% of suits are either withdrawn, dropped or dismissed because they lack merit.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 extrapolation 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 study has 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 had to 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 judiciary 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 people that we do, but general tort law, from my perspective, has always been a matter of state law.

i happen to live in charlotte, north carolina, 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 they 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, because we have been talking about this for the 18 years that i've been here, 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 original 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 billion 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. >> with 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 very few 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, you'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 patient, you follow an orderly progression. if this doesn't work, then we'll do this study, we'll do a ct scan or myelogram 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 situation, you're saying a doctor would look 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 availability or lack of availability of on-call specialists, that doctor will proceed with the entire battery from step one. >> and not progressively? >> not necessarily in an 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 that true? >> absolutely. >> so doctors, just like human beings, make mistakes. would you disagree with that, 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 can 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 that. now, 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 limited to $250,000 for pain and suffering, she went to a denver hospital for kidney stone

surgery in february 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, we're talking about denying access to the courts for people who have -- who have been hurt

and that's about all i got 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, we did 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 minnesota, 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 about 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 ask 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 and they 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 you 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 lead to 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 funding of medicaid 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 different 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 weight 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 physician'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 individual 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 series 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 about this. 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 settlements 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're 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 practice issues between optometrists, nurses and other traditional state 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 on the 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 you're 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 costs going 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 physician is sued for treating the hypertension. there's avenues to be spur sued by a trial bamplt this is 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 different 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 yield back. 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 system 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 think it 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 improving 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 similar 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 learned 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 deliver 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 has 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 transparency 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 the 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 a doctor 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 unsafe 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 assistance? >> i believe that the civil justice system that exists in this country is able to handle cases that go forward based on the state common law that exists that has been developed by the state. if the state common law and frankly if the state decides -- >> reclaiming my time, most states have specific statutory liability provisions. >> exactly. look at texas. what has happened in texas is they have made the standard of

liability for emergency room malpractice so high that it is has knocked out virtually all cases. you have a situation where a woman was in an emergency room, was misdiagnosed. as a result of that her legs have been cut off. she cannot get an attorney because of that. >> you're again avoiding my question. >> i'm saying. i'm saying i don't agree with you. >> what about on the highway, at the theater, out in public away from a medical facility if a doctor provides care, volunteers that care under those circumstances, very different than emergency rooms. i agree emergency rooms should be different than other standards of care as well, but in an emergency itself, should the doctor have greater protection? yes or no? >> i believe that the law should be what the state common law is. >> i'm going on to another question. thank you. dr. hoeven, some argue that lowering a doctor's malpractice

liability insurance bill does not really lower health care costs in a way that benefits patients. i don't agree with that. what are your views on that? >> i disagree with na statement as well. it's clear that our liability costs have to be something we can budget for and build into our costs of running a practice or a clinic. money that i don't have to spend on liability insurance i can and do turn back into a practice to retain a nurse to provide care to 100 diabetic patients so that our costs are lowered. i think we have to be very careful in this phraseology, but in actuality if i can budget, i know what my monies are going to be. they're not out of sight. i can improve care and quality and access to my patients. >> thank you. dr. weinstein, "news week" reported that younger physicians are especially frustrated with practicing defensive medicine betweening rising insurance

rates and the legislation and bureaucracy in the new health care law. are you concerned that in the future fewer of our best young students will pursue medical career science. >> yes, i think the evidence is very clear. this is born out in the study done by the harvard group and the columbia university legal team which showed that physicians in all residencies are just discouraged, number one, to be doctors. 28% regretted choosing medicine as a career, and that 81% viewed every patient they encountered as a potential lawsuit. i think this is a terrible state of affairs, so there's no question that the younger generation is profoundly affected in the career choices and practice locations. the context in which they practice. in other words, whasht they cut down their skill set to and what they offer their community in which they live. >> they can spend a lot of years and hundreds of thousands of

dollars to receive a license to practice medicine, and the cost then of liability insurance and the risk if they have to make a claim against that insurance or more than one claim against that insurance to their future as a physician, what is that risk? >> i think the issue here is there are plenty of people that need good, medical care that aren't necessarily high risk. if you feel you can have a satisfactory practice without putting your life and your family at risk by unnecessary liability, many younger physicians are taking that route. >> and that is indeed the crux of the problem. the quality of medical care and availability of medical care is very much affected by the perception of the medical profession and the reality to the medical profession of the current standards with regard to medical liability? >> there's no question that access and quality of care are

profoundly affected by the current situation. >> thank you. thank you, mr. chairman. >> thank you very much. i yield myself five minutes. i come to this like everybody else does as a product of my experience. my dad was a doctor, a board certified cardiologist and internist from long beach, california. i was his wayward son that went to law school, but i spent five years doing medical malpractice defense, although i did some plaintiffs' cases in southern california. my practice bracketed the time before micra and after. for anybody to suggest that micra didn't make a difference, you weren't there. i happened to be a young attorney at the time, and i had some classmates from high school and college that went to medical school, and they were about ready to enter the practice of

medicine. a number of of them left the state of california because the insurance rates were so hichlt i remember a good friend of mine who is an anesthesiologist left the state. some ob/gyns left the state. some doctors involved in brain surgery left the state because of the high costs. i don't know where you get these figures that it wasn't until '88 we saw any progress, because the absolute increase on a yearly basis of the premiums paid for by the tdoctors leveled off aftr we passed micra. it was interesting to hear the gentleman from georgia talk about noneconomic damages. it puts a limit on noneconomic damages, pain and suffering. why? that's the most potentially abused part of the system. i can prove losses for future

earnings. i can prove what the costs are, the direct costs. pain and suffering, if you think about it, if before an instant you were to ask somebody, how much would it be worth to you to lose your arm or leg? they'd say you couldn't pay me enough money to do that. after the fact when you talk about pain and suffering, it's a very difficult figure to determine. so you make a rational judgment by the legislature or the people as to what that limit would be, because otherwise it has an adverse effect on the potential for people having access to medical care. i mean, it's not a perfect system. never has been a perfect system. so i'll just say from my standpoint as someone who was there when we passed it in california, i saw a tremendous difference. when people talk about frivolous

lawsuit, let's talk about the real world. when a plaintiff's attorney begins the lawsuit, he or she sues everybody in sight because he or she can't be sure who was responsible. by the time you get to trial, you ought to know as the plaintiff, plaintiff's attorney who you think really is responsible. you ought to let out the other people. if you don't, we ought to have a very simple, modified loser's pay provision so that at the time of trial you can present to the judge and say, if they have no case or they get less than what i am offering now, all attorney fees and costs should be borne by the plaintiff. i was in settlement conferences where the judge would say to me, i know your hospital or i know dr. c doesn't have any liability, but the cost of defense will be $10,000 so throw in $10,000. that was considered a

quote-unquote settlement. in every case i'm aware of you have that dilemma, and so when you're talking about even real cases of malpractice, a lot of other people are involved in the case and they may settle out but there was no real liability. unless you sort of change that dynamic, you're going to have this situation. i have to overcome my reluctance to do this on a federal level, because i thought california, we were ahead of the rest of country when we passed what we did. you probably couldn't have passed micra on the federal level at that time. i'm sorry my friend from north carolina is not here, because he said very clearly to me that health care is not covered by the commerce clause. i would hope that he'll make that presentation before the courts that are considering the lawsuits right now. so i'm sorry i don't have any questions for you.

just listening to everything, i have to put it into my sense of -- no, he said someone is not taking care of across a state border. they're in a hospital here, a hospital there. it's not in interstate commerce. that's what he said. having heard all of this, it brings me back to the argument that is we were making in california in 1974-1975. we made a reasonable judgment in california, frankly i think it has worked very, very well and is a model for the rest of the country. i don't think there's any doubt that the specialties that are available in california are available in larger numbers today than they would have been had we not passed micra. so there's no perfect system. i think we all recognize it it. what we're trying to do is find that which will give us the best overall response to a continuing

challenge. how do we provide health care for the people of the united states? last note is i take my hat off to the medical community because i had major kidney surgery when i was four, i've had five knee surgeries and i have a new hip and knee, you repaired my achilles tendon a while ago. i'm a walking example of what medical care can do for people in the united states. my wife said you're getting older, but i said i'm getting new parts. there is hope. i'd like to thank our witnesses for testimony today. they have five days to submit the chair additional written questions for the witnesses which we will forward and ask you to respond to those, please, as quickly as you could so we could make your answers a part of the record. if we send them to you, there will be serious questions for members, some who weren't able to attend, some who had to leave, some who have more questions for you. i would thank if you you

seriously consider that, all three of you. without objection all have legislative days to submit additional materials for inclusion in the record. i'd like to thank the witnesses. i know this is an imposition on your time and we have to run off and vote and so forth and you sit here. we thank you very much for your testimony. it is very, very

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