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Washington, D.C. –As the Wyoming Legislature debates medical liability reform this week, U.S. Sen. Mike Enzi, R-Wyo., and his colleagues in the U.S. Senate voted today on a related measure specifically designed to give obstetricians and gynecologists in Wyoming and the rest of the nation some relief from excessive liability costs.

Enzi favors S. 2061, the Healthy Mothers and Healthy Babies Access to Care Act, a bill that would protect women's access to quality and affordable obstetric and gynecological (ob/gyn) services by putting reasonable limits on the amount of money that attorneys can take from a verdict or a settlement in an injured patient's favor. The bill also would limit awards for punitive damages and non-economic damages -- the types of unpredictable awards that are contributing to this healthcare access crisis.

The Senate voted 48–45 to proceed to the bill, but Enzi was disappointed because it takes 60 votes to set a time limit on debate, which would allow a vote on final passage of the bill. Even though a majority of the senators voting favored proceeding, the bill is essentially stalled for now.

He said this bill and others like it could benefit Wyoming.

"In Wyoming, we don't currently have limits on non-economic damage awards despite evidence that shows that limits on these awards have helped control the rising cost of medical liability insurance premiums in other states. As a result, people in Wyoming are losing access to affordable healthcare in their communities," said Enzi. "The rising cost of medical liability insurance in my state of Wyoming is forcing doctors to curtail their practices or close them entirely. We have a shortage of doctors as it is in Wyoming, and the cost of medical liability insurance is making a bad problem even worse."

Enzi said the medical liability crisis affects expectant mothers and their obstetricians the most. He named doctors in Wheatland, Casper, Gillette and Cheyenne, who have stopped delivering babies or are cutting back their services.

Enzi stressed that the bill does not limit the amount of money that juries and judges can award to cover lost wages, rehabilitation, special services and other economic losses of an injured mother or child.

An even better idea

While Enzi favors the Healthy Mothers and Healthy Babies Access to Care Act, he said "it's a tourniquet to stop the bleeding. It's not going to heal our broken system." He said complete, common-sense reform is necessary to cure the medical litigation disease rather than just eliminate some of the symptoms.

Enzi, a member of the Senate Health, Education, Labor and Pensions Committee, has authored a comprehensive bill that he believes would put the entire system on the path to recovery and he used debate on the current bill to remind legislators that there are other good ideas they ought to consider.

"The Reliable Medical Justice Act, S. 1518, would authorize funding for states to create alternatives to current tort litigation. It would require participating states and the federal government to work together in evaluating the results of the alternatives as compared to traditional tort litigation. This way, all states and the federal government could learn from new approaches," said Enzi. "As I speak, some states are already looking into alternatives to medical litigation as we know it. My home state of Wyoming is one of them.

The full text of the medical liability speech Enzi gave on the Senate floor during this debate follows.

Healthy Mothers, Healthy Babies, and Medical Litigation
February 23, 2004



MR. ENZI. Mr. President, our nation's medical litigation system is broken, and we need to start working to fix it. I urge my colleagues to vote for cloture on the Gregg-Ensign bill. It's time to stop filibustering and start working.

Last year, we brought a medical litigation reform bill to the Senate floor. The legislation would have placed reasonable limits on the amount of money that attorneys can take from a verdict or a settlement in an injured patient's favor. The bill also would have limited awards for punitive damages and non-economic damages – in other words, "pain-and-suffering" awards.

The bill would not have limited awards to compensate patients for economic losses. This is an important point for everyone to keep in mind. If a judge and jury were to decide that a person suffered an injury due to a doctor's mistake or a hospital's negligence, that person would be entitled to receive full compensation for their economic loss – including everything from rehabilitation to lost wages resulting from their injury.

I can't stress this point strongly enough – the bill would not have limited awards for economic losses. What the bill would have done is place a ceiling on non-economic damages. The bill would have limited the maximum award for non-economic damages to $250,000 in states that did not have their own limits on such awards.

In Wyoming, we don't currently have limits on non-economic damage awards. We don't have limits, despite evidence that shows that limits on non-economic damage awards have helped control the rising cost of medical liability insurance premiums in other states.

As a result, people in Wyoming are losing access to affordable healthcare in their communities. The rising cost of medical liability insurance in my state of Wyoming is forcing doctors to curtail their practices or close them entirely. We have a shortage of doctors as it is in Wyoming, and the cost of medical liability insurance is making a bad problem even worse.

To address this problem, I co-sponsored the medical litigation reform bill that we offered for debate last year. We needed 60 Members of this Body to vote in favor of working on the bill, but only 49 voted in favor.

So it was back to the drawing board. And here we are again, nine months later, with a new bill. And it's ironic that we are here nine months later, because the bill focuses on mothers and babies. The medical liability crisis affects many patients and doctors. Those it affects most are expectant mothers and their obstetricians.

Doctors who deliver babies have a very dubious honor when it comes to medical liability insurance. The typical obstetrician pays more in annual premiums for their professional insurance than almost every other type of doctor.

Some of my colleagues have already pointed out the statistics and numbers, so I'll tell a short story about an obstetrician in Wyoming. I told this story in July, so I apologize if you've heard it before, but it's worth re-telling.

There was an article in the Washington Post about a year ago about the medical liability crisis. The reporter for the Post had gone to Wyoming to see how the crisis affected a state already struggling to keep enough doctors as it is.

According to the article in the Post, a doctor in Wheatland, Wyoming went to a high-school basketball game between the Wheatland Bulldogs and the nearby Douglas Bearcats. And by nearby, I mean 60 miles away – that qualifies as nearby in Wyoming!

That doctor had just announced that he would not be delivering any more babies in Wheatland or Douglas because of the cost of liability insurance. The irony is that he delivered just about every player on BOTH TEAMS!

I'd like to read a section of this story to you. The name of the doctor is Willard Woods.

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"The national malpractice insurance crisis. . .hit home for Wheatland this winter when Woods's insurance company joined a number of national malpractice carriers in declaring bankruptcy."

"That left only two firms selling malpractice insurance in Wyoming, and neither one was willing to take on new obstetrical coverage. Woods did get insurance for his gynecological practice -- a branch of medicine that spawns far fewer lawsuits than delivering babies -- but the annual premium costs him $116,000, three times what he paid a year ago."

"In this wheat-growing region of eastern Wyoming, where medical services are sparse and scattered, the impact has been acute. Platte County, with a population of less than 9,000, has five doctors, equal to the number of veterinarians."

"Women with normal pregnancies can still have their babies delivered in the hospital; Woods's two partners, both general practitioners, share the delivery duties."

"But if you have any kind of problem, like I did," said Wheatland mother Kori Wilhelm, who has a genetic blood mutation that makes pregnancy dangerous, "you have to go to Cheyenne now" -- and that's a 140-mile round trip, Mr. President – "to get the specialized treatment we used to get right down the street at Dr. Woods's clinic."

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Mr. President, put yourself in that woman's shoes. Until the cost of medical liability insurance drove Dr. Woods out of obstetrics, a woman experiencing a difficult pregnancy in Wheatland could get specialized care in her own community. Now, that woman has to drive 140 miles round-trip for proper prenatal care and to have a specialist deliver her baby.

140 miles is a long way for anyone to travel to see a doctor. It's an even longer 140 miles for a pregnant woman. And it's truly a long 140 miles for a pregnant woman in the middle of winter, when high winds and blowing snow forces the highway department to close the interstate between Wheatland and Cheyenne. I wish this was the only story I could tell about the crisis in Wyoming, but it's not.

I could talk about Jack Richard, an OB-GYN who reluctantly retired last year due to the high cost of medical liability insurance. Dr. Richard had served the people of Casper, Wyoming for more than 30 years, but he was not ready to retire at the age of 61. Dr. Richard had already stopped providing routine obstetrical care in 2000, but even as a part-time physician, his premiums had doubled since then.

I could talk about Lisa Minge, an OB-GYN who left my hometown of Gillette in November and moved her practice to Boise, Idaho. She cited the high cost of liability insurance as one of the factors in her move to Idaho, which has a $250,000 limit on non-economic damage awards.

I could talk about Dr. Bert Wagner, an OB-GYN in Cheyenne, who stopped delivering babies this year to avoid the high cost of insurance for the obstetrical side of his practice.

Or I could talk about a group of family practice doctors in Cheyenne who are trying to decide whether they can keep delivering babies. The four doctors in this group saw their premium go from $65,000 in 2003 to $110,000 for 2004. This is despite the fact that they had already limited the number of babies they will deliver to 30 per doctor per year to avoid paying the full obstetrical insurance rate.

I've got more stories I could tell, but I'm not sure what good it would do. I'm an optimist by nature, but I'm afraid I'm pessimistic about the outcome of this vote.

Nevertheless, I commend Senators Gregg and Ensign and our Majority Leader Dr. Frist for trying again. They've developed a bill that is focused on one of the most critical parts of this nationwide crisis – the plight of expectant mothers who depend on obstetricians to provide a safe and healthy delivery for their babies.

What Senators Gregg and Ensign have proposed is a modest approach that will provide some measure of relief to doctors who are squeezed by the high cost of medical liability insurance.

The bill puts reasonable limits in place on the amount of money that attorneys can take from settlement and verdicts awarded to injured mothers and babies.

The bill does not limit the amount of money that juries and judges can award to cover lost wages, rehabilitation, special services and other economic losses that an injured mother or child might face. It simply puts a reasonable limit on what judges and juries can award for punitive and non-economic damages – the types of unpredictable awards that are contributing to this healthcare access crisis.

Mr. President, I've noticed something interesting during our debates on this issue. While we've been debating the "pros and cons" of reform, no one is standing up to defend our current system of medical litigation. We're talking about limits on non-economic damages, or the role of the insurance industry, and Senators are saying "Yes, there is a problem, but the bill before us won't solve it."

One thing I haven't heard is a rousing defense of our medical litigation system. Even some of the lawyers in this body have agreed that frivolous lawsuits are a problem and that our medical litigation system needs reform.

Why aren't we hearing anyone defend the merits of our current medical litigation system? It's because it's indefensible. Our system doesn't work. It simply doesn't work for patients or for healthcare providers. The bill we're debating today is a good bill for mothers and babies and the doctors that serve them. But even the sponsors would probably admit it's a short-term measure that doesn't address the fundamental problems with our medical litigation system. This is an important bill, but it's just a tourniquet to stop the bleeding. It's not going to heal our broken system.

I'd like to share with my colleagues a brief analysis of our medical litigation system:

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"There is widespread agreement that the current system of tort liability is a poor way to prevent and redress injury resulting from medical error."

"Most instances of negligence do not give rise to lawsuits, and most legal claims do not relate to negligent care. Many injured patients do not know they have suffered an injury resulting from error, and those who go through the legal process often do not even recover the cost of their continued health care."

"A few plaintiffs and their attorneys, however, win large sums that may be disproportionate to their injuries or unrelated to the defendant's conduct. Prolonged, adversarial haggling over claims by plaintiffs' attorneys and liability insurers alienates both providers and patients, and generates legal fees and administrative expenses that consume more than half the cost of liability insurance premiums."

"The apparent randomness and delay associated with this pattern of accountability not only prevent severely injured patients from receiving prompt, fair compensation, but destabilize liability insurance markets and attenuate the signal that liability is supposed to send health care providers regarding the need for quality improvement. Fear and distrust breed inefficient "defensive medicine," and lead to missed opportunities for information exchange and apology that might avoid lawsuits in the first place."

"The shortcomings of the current malpractice system therefore come from three directions, all of which have contributed to the present crisis: inefficient and inequitable legal processes for resolving disputes, problematic responses by clinicians to the threat and cost of liability, and volatile markets for liability insurance. Although some states face greater insurance instability than others as the result of different legal standards, public expectations, and professional cultures, no state is immune to the threat of service interruptions affecting physicians, hospitals, and other health care providers."

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Now, these aren't my words. They aren't the words of personal injury lawyers – but they aren't the words of tort reform advocates, either. These words are from our National Academy of Sciences – specifically, the Institute of Medicine. This organization was created by the federal government and chartered by Congress to provide unbiased and evidence-based advice on health policy.

This Congressionally chartered body issued a report in 2002 that called upon the federal government to support demonstration projects in the states to evaluate alternatives to current medical tort litigation. In response, I've introduced a bill in the spirit of this report.

This bill, the Reliable Medical Justice Act, would authorize funding for states to create alternatives to current tort litigation. The funding would cover the costs of planning and initiating proposals based on models outlined in the bill or other innovative ideas.

My bill would require participating states and the federal government to work together in evaluating the results of the alternatives as compared to traditional tort litigation. This way, all states and the federal government could learn from new approaches.

As I speak, some states are already looking into alternatives to medical litigation as we know it. My home state of Wyoming is one of them. Another is Massachusetts, where Governor Romney is working with Harvard University on an innovative project. Another is Florida, where the Governor's task force recommended the implementation of projects along the lines of those suggested in my bill. We should encourage and support these states and others who are considering similar ideas.

Believe it or not, both Newt Gingrich and the editors of the New York Times have endorsed the idea of creating and evaluating alternatives to medical litigation. If Newt Gingrich and the New York Times are in the same tent on an issue, maybe there's room in that tent for most of my fellow Senators to support it as well.

Mr. President, I support the Gregg-Ensign bill to provide some short-term relief to mothers and babies and their doctors. A lot of my colleagues will be voting with me, and a lot will probably vote against me. Regardless of how we vote on this legislation before us, we must acknowledge that there is a medical liability crisis, and we must work together to find a solution.

Our medical litigation system is failing us. Medical lawsuits are supposed to compensate people fairly and deter future errors. But most patients don't get fair and timely compensation, and there's nothing to show that lawsuits are deterring medical errors or making patients safer.

So I hope my colleague will vote in favor of providing mothers, babies and their doctors with some immediate relief through the Gregg-Ensign bill. I also hope they will take a serious look at my legislation – Senate Bill 1518 – which would put us on the road to replacing medical lawsuits with better and fairer systems for compensating and protecting patients. We need to pass both of these bills before we can say that we have begun to solve this medical liability crisis.