There is wide agreement that something must be done to ensure reasonable rates and protect access to health care.  Unfortunately, nothing in this legislation would decrease premium costs or increase the availability of medical malpractice insurance.  Instead, it would make detrimental changes to the health care liability system that would extend beyond malpractice and compromise the ability of patients and other health care consumers to hold pharmaceutical companies, HMO’s and health care and medical products providers accountable. 

For example, the three-year statute of limitations on malpractice suits contained in this legislation is more restrictive than most state laws, and could cut off legitimate claims involving diseases with long incubation periods.  Thus, a person who contracted HIV through a negligent transfusion but learned of the disease more than three years after the procedure would be barred from filing a claim. 

In addition, H.R. 5 would arbitrarily limit non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom the action is brought.  This cap would hurt patients like Linda McDougal, whose breasts were needlessly amputated due to a doctor’s carelessness, and Jesica Santillan, who died when her doctor transplanted organs with an incorrect blood type into her body.  It would disproportionately impact women, children, elderly and disabled individuals and others who may not have significant economic losses from lost wages or other factors but are still suffering very real injuries, such as the loss of a limb, pain and disfigurement, the loss of hearing or sight, or the loss of mobility or fertility.  Surely, the impact of these injuries on their lives cannot be quantified at less than $250,000.

As an individual who was paralyzed at the age of sixteen when a police officer’s gun accidentally discharged and severed my spine, I find this provision particularly offensive and callous.  After my accident, my medical expenses were outrageously high, and amounted to more than most people make in a year.  Although there is no amount of money that can ever return what was taken from me, I was awarded non-economic damages in the lawsuit my family filed shortly after my accident.  Granted, my condition was not the result of medical malpractice, but had the non-economic damages in my case been capped, my life would have been profoundly affected because I would not have been fully compensated for my future health care needs.  Likewise, I would not have been afforded the opportunity to attend college or had the hope of beginning a new life.  While our civil justice system has determined that it is the injured party who deserves the greatest measure of protection, I find it a great disappointment that attempts to limit remuneration to victims of malpractice still persist. 

In 1976, California enacted the Medical Injury Compensation Reform Act (MICRA), which limits non-economic damages to $250,000, and is similar to the cap being proposed in this legislation.  However, in the twelve years following the enactment of MICRA, California's medical malpractice liability premiums actually increased by 190 percent.  It took enactment of insurance reform in 1988 that mandated a 20 percent rate rollback to finally lower and stabilize malpractice premium rates.  It is important to note, however, that California’s rates are no lower than the national average.  Moreover, California's 1976 cap on non-economic damages is now worth only $40,389 in 2002 dollars.  As a result, a patient would need to recover $1,547,461 in 2002 for the equivalent medical purchasing power of $250,000 in 1976.

Further, H.R. 5 would completely eliminate joint liability for economic and non-economic loss, preventing many injured patients from being compensated fully.  Joint liability enables an individual to bring one lawsuit against multiple entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among them, if the jury finds for the plaintiff. 

Rather, our top priority in reforming America's health-care system should be reducing the shameful number of preventable medical errors that kill nearly 100,000 hospital patients a year -- the equivalent of three fatal plane crashes every two days.  In fact, only five percent of doctors account for 54 percent of malpractice payments.  Earlier this year, the New England Journal of Medicine reported that surgical teams leave clamps, sponges and other tools inside about 1,500 patients nationwide each year.  Making it more difficult for these victims to seek compensation will not lead to safer medicine; it will only protect egregious medical malpractice behavior. 

Moreover, there is no evidence that the tort reforms proposed in H.R. 5 would guarantee a decrease in insurance rates.  In fact, the average liability premium for both internal medicine and general surgery in 2001 was actually higher in states with caps on damages than in states without caps.  The proponents of this measure claim that limiting “frivolous lawsuits” will lower premiums.  However, a study that appeared in the New England Journal of Medicine in 1991concluded that only about 2 percent of those injured by physicians’ negligence ever seek compensation through a lawsuit.  Recent studies show that this figure remains unchanged.  That means that even completely eliminating medical liability would have virtually no impact on the cost of health care.  Do we need to find a way to lower insurance and health care costs?  Absolutely.  Is H.R. 5 the way to do it?  Absolutely not. 

Instead, I plan to support the Democratic motion to recommit, which would allow patients to seek redress and provide assistance to physicians and hospitals in need.  Specifically, this alternative would end frivolous lawsuits by requiring affidavits to be filed by qualified specialists certifying that the case is meritorious.  It would also establish an independent advisory commission to explore the impact of malpractice insurance rates, particularly in areas where health care providers are lacking.  Again, I would urge my colleagues to oppose the underlying bill, and to support the Democratic alternative.  Thank you.