Capital Report - Transcript

SHOW: Capital Report (9:00 PM ET) - CNBC

HEADLINE: US Senate refuses to debate bill to cap jury awards on medical malpractice suits at $250,000

ANCHORS: ALAN MURRAY

BODY:
ALAN MURRAY, co-host:

Big win for the trial lawyers. Today, the US Senate smacked down an attempt to limit medical malpractice awards. The White House-backed bill would have capped jury awards on malpractice lawsuits at $250,000. Now how will that affect consumers? Joining us now from Capitol Hill are Senator Richard Durbin, the Democrat of Illinois, and Senator John Ensign, Republican of Nevada.

Senator Ensign, what happened here? You needed 60 votes; you didn't even get to 50 votes.

Senator JOHN ENSIGN (Republican, Nevada): Well, what we were trying to do is just proceed to the bill, and we think it's pretty outrageous that the people who voted against the bill didn't even allow us to proceed, have a good healthy debate on this bill because there is a crisis. One year ago, there were 12 states in crisis. Today, there are 19 states in crisis. There are only six states that are safe.

MURRAY: When you...

Sen. ENSIGN: The other 25 states are about in crisis.

MURRAY: Let's be clear. When you say in crisis, you're talking about doctors walking away from their jobs because they can't afford malpractice insurance. Is that what you mean?

Sen. ENSIGN: We're talking—yes, and patients not having access to doctors. We have women who are having to deliver their own babies. We have trauma—like in my state the trauma center closed for a period of time until our state enacted some caps, and that was a level-one trauma center that served a four-state region. But the stories that we hear every day coming into our office, people I meet with around the country, it literally is a crisis.

MURRAY: So...

Sen. ENSIGN: All you have to do is go into any emergency room, go into any doctor's office and ask them, 'Is there a serious problem with abusive...

BORGER: Well, let's let...

Sen. ENSIGN: ...lawsuits in this country?' and they will absolutely say yes.

BORGER: Let's let Senator Durbin get in here. You heard what Senator Ensign said: outrageous; there's a crisis; we need a solution to the problem. Why a Democratic filibuster?

Senator RICHARD DURBIN (Democrat, Illinois): Well, it wasn't a filibuster. Basically what we did with this vote today was to say that we did not want to proceed to this bill because it was a bad bill. I will readily concede that in parts of America we have some medical specialities that are paying outrageously high malpractice insurance premiums, and we need to do something about it, but the suggestion of the Bush White House that was rejected today on a bipartisan basis was that the way to solve the malpractice insurance crisis was to limit the amount that malpractice victims could recover from a jury to $250,000 for pain and suffering. And I spent the last two days with illustration after illustration of people with children who are going to be quadriplegic for the rest of their lives and have compromised lifestyles where $250,000 is an outrageously small amount.

BORGER: Well, Senator...

Sen. DURBIN: And that's why it was rejected.

Sen. ENSIGN: If I could jump in there...

BORGER: Go ahead.

Sen. ENSIGN: ...the cases that he showed, for instance the children—the $250,000 is for pain and suffering. We have those same cases, like that child that was a quadriplegic. In California that has the same bill that we tried to enact, or get a vote on, today, those people, those children, received $30 million, $40 million, $50 million in economic damages. That's more than enough. They get all the money taken care of for all of the medical expenses they'll need the rest of their lives plus any lost income. And even children receive 30--there was even one case who received $87 million.

Sen. DURBIN: I could just say that when you go through the cases and you look at the complexity, you understand why we allow juries of people living in communities around America to make this decision rather than a hundred senators sitting in Washington who want to decide what each and every case is worth. I think the Senate said decisively, on a bipartisan basis, that the Bush White House is wrong...

MURRAY: Senator...

Sen. DURBIN: ...when it comes to dealing with malpractice insurance problems.

MURRAY: Senator Durbin, I mean, there are two concerns. One is that the cost of malpractice insurance either ends up getting passed on to consumers, or it means that consumers, in some cases, lose access to health care. And the other concern is that a huge amount of those awards ends up in the pockets of trial lawyers. How do you respond to those things?

Sen. DURBIN: Well, having been a trial lawyer I can tell you that a lot of people with very limited economic means came into my office and said, 'I think my family has been wronged. Somebody did something to hurt us. But, Mr. Attorney, we can't afford to pay you. We don't have the money to pay your fee.' And a contingency fee says if you have a good case and recover, then the attorney will be paid, but if you don't and lose, the attorney loses with you. That is the only way that a person of modest means can go into a courthouse. And isn't it interesting that this bill wanted to limit the amount of money you would pay an attorney representing someone who was a malpractice victim, but no limitation on the amount in money paid to the attorneys who would defend those who commit malpractice? That's totally unfair.

Sen. ENSIGN: Let me jump in there. In California, in Colorado, states that have enacted, virtually, this very same law, there are limits on attorneys' fees, and poor people have no problem getting lawyers on meritorious cases. It is the frivolous cases, the abusive cases that personal injury attorneys are taking advantage of that is the problem. If a lawyer sees a good case, they're going to take that case on even if they get a smaller percentage. But if you...

Sen. DURBIN: I can just tell you...

Sen. ENSIGN: ...limit the attorneys' fees, what happens is that the victim, who deserves the money, gets the money instead of these huge settlements that personal injury attorneys get.

Sen. DURBIN: I can tell you that when you take a case, a medical malpractice case, and I have made this decision as a lawyer, in Illinois you need a certificate from a doctor to show that it is a worthy case that can ultimately lead to judgement. This idea of frivolous lawsuits, meaningless lawsuits, that are being filed here and there—that just isn't borne out by the facts.

BORGER: Let me ask both of you...

Sen. DURBIN: The number of cases...

Sen. ENSIGN: You must...

Sen. DURBIN: ...and the number of multimillion-dollar verdicts...

BORGER: Senator...

Sen. DURBIN: ...are fewer rather than many.

Sen. ENSIGN: I'm sorry, my colleague must be living in a dreamworld if he thinks that our legal system isn't out of control. It's not only out of control...

Sen. DURBIN: Malpractice is out of control as well.

Sen. ENSIGN: ...with medical ...(unintelligible)...

Sen. DURBIN: The Bush administration...

Sen. ENSIGN: ...but also throughout our legal system because we have frivolous lawsuits.

BORGER: OK. OK. I'm gonna...

Sen. ENSIGN: We have a litigious society.

BORGER: Senator Ensign, let me get in here just for a moment. One last question. Isn't this all about, for both Democrats and Republicans, getting a vote on the record on medical malpractice that you can take back home when you run for re-election, or this issue of tort reform can become an issue for George W. Bush in the 2004 elections?

Sen. ENSIGN: It was about getting people on record where they stand so we can then apply grassroots pressure to those people who voted against it. In my state, the people who were against medical malpractice reform were totally dead set against it. Three weeks before the level-one trauma center, they all came out and said there's no way we'll ever vote for caps. Three weeks later, the level-one trauma center closed. Our governor called a special session of the Legislature and virtually unanimously, in a bipartisan fashion, they all voted for $350,000 caps on pain and suffering. That's what we need to have happen in the Senate...

MURRAY: Yeah.

Sen. ENSIGN: ...is that grassroots people need to come together, call their senators, write them, and get this pressure put on so we can have the political pressure...

MURRAY: Right.

Sen. ENSIGN: ...put on to get this thing passed.

MURRAY: All right. Senator Durbin, quick last word.

Sen. DURBIN: It's a political face-off today between Karl Rove, the Bush White House and the American trial lawyers, and that is sad and unfortunate.

MURRAY: All right.

Sen. DURBIN: We have a problem in this country that needs to be resolved to help the doctors, and not at the expense of medical malpractice victims.

MURRAY: All right. We've got to...

Sen. DURBIN: We can do it on a bipartisan basis.

MURRAY: We've got to leave it at that. Senator Durbin, Senator Ensign, thank you both for being with us.

Sen. ENSIGN: You're welcome.

Sen. DURBIN: Thank you.