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Washington, D.C. – U.S. Senator Mike Enzi, R-Wyo., was disappointed with a vote in the Senate today that prevented medical liability reform legislation from being considered on the Senate floor.

Through use of a procedural rule, Senate Democrats were able to block consideration of S. 11, The Patients First Act of 2003, which would have protected patients' access to quality and affordable health care by reducing the effects of excessive liability costs. The measure failed by a vote of 49-48, 11 votes short of the 60-vote requirement.

Enzi, a cosponsor of the bill, said Wyoming and other states in crisis cannot afford to lose any more doctors and legislation to remedy the medical litigation system needs to be completed sooner rather than later.

"We should have voted to end debate and move on to consideration of the bill, and amendments to the bill, so that we could address the medical liability crisis before it further comprises access to affordable healthcare for people in Wyoming and other states that are losing their doctors," said Enzi.

Enzi said despite the outcome of the vote he would continue working to find solutions to the nation's medical liability crisis.

Enzi's statement from the Senate floor follows.

Statement of U.S. Senator Mike Enzi
Medical Liability Reform
July 9, 2003

We've heard a lot of discussion about insurance companies this week. We've heard that medical liability insurers are the source of the problem – that they are gouging doctors to make up for investment losses. Well, the NASDAQ index yesterday closed at its highest level since April 2002. The NASDAQ is up more than 30 percent since the beginning of the year. For that matter, the Dow Jones Industrial Average is up more than 10 percent in 2003.

Under the logic we've heard this week, the stock market rebound ought to be leading to a sharp reduction in medical liability premiums. So why aren't we seeing any relief? We're not seeing relief because insurance companies are paying out much more in losses than they are receiving in premiums – it's that simple. For every premium dollar collected in 2001, medical liability insurers experienced $1.53 in losses. Ten years earlier, for every premium dollar collected, insurers lost $1.03.

Regardless of investment gains or losses, the fact is that payments for medical litigation judgments and settlements are rising much faster than incoming premium payments. Insurance companies can't make up the gap between the dollar they take in and the $1.53 they pay out without raising premiums. That's why we're not seeing reductions in medical liability premiums, despite the stock market's advance in 2003. Mr. President, it all comes back to our legal system. It is simply out of control. People who are truly injured by health care errors ought to receive fair compensation. The problem is that our medical justice system is completely out of whack.

Doctors and hospitals live in constant fear of litigation. They order unnecessary tests out of legal fear. Doctors look at their patients as potential lawsuits, not people in need of their help, because of this legal fear. They are forced to move their practices to states that have reformed their legal systems – all of this because of legal fear.

Some of you may have read a book that came out several years ago, in 1995. The book was called "The Death of Common Sense." The book was written by Philip Howard, a lawyer by training. His premise was that American law and regulation are stifling human judgment and good sense.

Well, Mr. Howard just published a new book, and I encourage my colleagues to read it. It's called "The Collapse of the Common Good." In the book, he describes how law and regulation in America create a warped sense of individual rights. In America today, people use the concept of individual rights to bully other members of society, using the threat of legal action as a weapon.

Some of what Mr. Howard has written is pertinent to this debate. For instance, some of my colleagues believe that this legislation would limit a patient's right to sue a doctor. We all believe that patients who are truly injured deserve fair compensation. The problem is that some personal injury lawyers are taking advantage of this belief to bring all sorts of claims against doctors, whether the doctors are at fault or not.

Let me share a passage from Mr. Howard's book with you. He writes: Like ancient Mayans accepting human sacrifice or Catholics in the Middle Ages buying indulgences, Americans today accept that diving for cover is the natural response to reasonable daily choices. Our faith in individual rights keeps us from pausing even to question this conception of justice. But should individual rights include the right to go to court over a sandbox disagreement involving three-year-olds, or to milk the system whenever there's a freak accident, or to scare towns and school systems out of seesaws and peanut butter? The idea of individual rights derives its moral force from the rhetoric of liberty. But is this what our founders had in mind when they organized a society around the freedom of each individual?

Actually, no. Our Founding Fathers would be shocked. There is no "right" to bring claims for whatever you want against someone else.

Suing is a use of state power. A lawsuit seeks to use government's compulsory powers to coerce someone else to do something. Asserting individual rights sounds benign, like praying in the church or synagogue of your choice. Sticking a legal gun in someone's ribs, however, it not a feature of what our founders intended as individual rights. The point of freedom is almost exactly the opposite: We can live our lives without being cowed by use of legal power. The individual rights our founders gave us were defensive, to protect our liberty. Liberty, we somehow forgot, does not include taking away someone else's liberty. [...]

Courts are not supposed to be commercial establishments where, for the price of a lawyer, anyone can buy a chance at a raffle. Courts supposedly represent the wisdom of law, overseeing when those powers can be used against others in a free society. There's no right to sue except as the state permits.

I can practically feel your confusion. How else can we organize justice? People obviously have the ability to go to court. But by what rules and standards? Our modern consciousness is so focused on individual rights that we can't conceive of another way to ensure fairness. But if lawsuits are recognized as an exercise of state power, perhaps the state should make conscious judgments of who can sue for what. That's what legal rules and interpretations are for." (22-24)

That is what this legislation intends to do – make conscious judgments about who can sue for what and the rules and limits under which medical lawsuits can go forward. Is this bill a perfect bill? No. I've yet to see a perfect bill, and I'm in my seventh year in the Senate.

But we ought vote to end this debate and move on to consideration of the bill, and amendments to the bill, so that we can address this medical liability crisis before it further comprises the liberties of people in Wyoming and other states that are losing their doctors. Our Declaration of Independence speaks to our unalienable rights, as granted to us by our Creator, and that among these rights are life, liberty, and the pursuit of happiness.

Well, it's hard for an expectant mother in Wyoming to pursue her happiness when she has to pursue her doctor for one more well-baby check-up before he closes his practice and leaves for a state where insurance premiums are lower!

There's another passage in Mr. Howard's book that is pertinent to our discussion about limits on pain-and-suffering awards. The statistics show that insurance premiums are lower in states with such limits, but I've heard Members on the other side of the aisle argue that the limit in this bill is too low – that it's unfair to someone who is severely injured, despite the fact that the bill does not limit in any way that person's right to recover every cent of the economic damages that result from that injury. Well, if the limit on pain-and-suffering awards in this bill is too low, then what is the right amount? If I may quote another passage from Mr. Howard's book . . . .

A great thing about bringing lawsuits in modern America is that it's so easy to threaten the adversary's entire livelihood. One stroke of a finger on the lawyer's word processor, and damages go from $100,000 to $1,000,000. Three more keystrokes, and we're suing for a billion dollars. This is fun. "What kind of justice system is it that allows someone to make up an amount of money to demand? Is that a fact to be "found" by a jury? It doesn't even qualify as a value judgment, which at least is a conclusion based on facts. Damages claimed today are completely arbitrary. Just stick your finger in the air and threaten someone with any number that comes to mind.

Judges treat damage claims almost as if they are property, and only with greatest reluctance intercede. In 1987, five-year-old Gregory Strothkamp climbed up several shelves to the top of the linen closet, got an unopened box of Q-Tips, and, while trying to use them, punctured his eardrum. His parents sued the maker of Q-Tips for, among other things, $20 million in punitive damages. Whatever the merits of the argument that Q-Tips should come in childproof packaging (which would raise everyone's cost), most people probably agree that making Q-Tips is not an evil act. When the jury awarded young Gregory $20 million in punitive damages, the judge did what was obvious from the beginning and overturned the award.

The claim ended sensibly, but is this how justice should work? Sweating through trial and verdict to get to obvious justice, while the judge is sitting there the whole time, doesn't exactly instill confidence in the system. Do judges enjoy watching the Q-Tips companies, or a Little League coach, or a doctor squirm on the end of a multi-million-dollar hook?

Lying dormant along the side of society is another important legal principle: that a person injured should be "made whole" by damages. Traditionally, this meant our-of-pocket losses, like lost wages or medical bills. In an unusual case, like a homemaker with no wages, claims were permitted in categories not actually calculable, like "pain and suffering." In cases of genuine evil, punitive damages were possible. Today the exceptions have engulfed the rule, with all kinds of side effects. Juries are regularly asked "to assume the baffling task of trying to place a monetary value on pain and suffering," Dean Bok observed, "although the predictable result [is] to encourage a rise in litigation and the growth of the most unsavory and deceptive practices.

Judges might concede the principle but can't imagine how to apply it; they need some objective legal post to hang on to. If $1.35 billion is too much, what is the right amount? The "exercise of judicial power is not legitimate," as one scholar put it, "if it is based on a judge's personal preference rather than law." So what do judges do? They abdicate. Judges look up at the allegorical figure of Justice and interpret her blindfold as impotence.

But Justice is also holding balanced scales. How does Justice achieve balance but through the values and wisdom of judges? Proportion is critical to justice. Equals should be treated alike, Aristotle believed, and unequals proportionally to their relative differences: "the unjust is what violates the proportion." These distinctions, Aristotle observed, can only be made with human wisdom.

Dead people can be so smart. "[T]o speak somewhat paradoxically," Cardozo observed, there are times "when nothing less than a subjective measure will satisfy an objective standard." Justice Potter Stewart had it right after all. Judges have to know it when they see it. One billion dollars for a wrongful dismissal case is absurd. Everyone knows it. The case should be dismissed unless the plaintiff comes back with some amount he can plausibly justify.

I wonder if judges ever ask themselves why it is that damage claims have escalated to a level where they are like a parody of dysfunctional system of justice. The answer couldn't be more obvious. Judges sit on their hands and tolerate claims that make lotteries seem like small change. The reason people bring huge claims is not hard to divine: It's a form of extortion. Why else sue for such ridiculous amounts? Being sued for, say, $5 million for a regular accident may not cause you to fold your hand, but the possibility of ruin never strays far from your consciousness. Most million-dollar claims end up settling for thousands or less. But not all All that it takes is for a jury to get mad..." ( 59-61) The problem we're facing today is that multi-million-dollar awards for pain and suffering are contributing to dramatic increases in insurance premiums for doctors. When this forces doctors to leave their practices, which hurts innocent patients who lose their access to medical care, do we not have an obligation to say "enough is enough" and set some limits on lawsuits?

As Mr. Howard points out in his book, if lawsuits are an exercise of state power, perhaps the state should make conscious judgments of who can sue for what.

When I spoke on this bill yesterday, I said that the current medical liability crisis and the shortcomings of our medical litigation system make it clear that it is time for a major change. I also said that regardless of how we vote on this legislation before us, we all ought to start working toward replacing the current medical tort liability scheme with a more reliable and predictable system of medical justice. I've heard Members on the other side of the aisle say that they want to work with Republicans to find a better way to solve this problem – to find reasonable, good-faith alternatives to this legislation. If we vote not to proceed to this bill, I hope that process will begin sooner rather than later. The people of Wyoming and other states in crisis cannot afford to lose any more doctors than we've already lost. If we do not proceed to this bill today, I also pledge to continue working to find solutions to this medical liability crisis. I hope that Members on both sides of the aisle will also take this pledge to keep working on this. I yield the floor.