Medical Malpractice

MEDICAL MALPRACTICE

Mr. DURBIN. Mr. President, we face a serious medical malpractice problem in Illinois. I have had meetings in the area where I was born with doctors and most recently with hospital administrators. The recent medical malpractice insurance premium increases for this year were only-I underline "only"-7½ percent through the Illinois State Medical Society, but adjustments will follow for specialties and for experience, and for some of these doctors that rate could be increased dramatically. I have come away from the meetings convinced now more than ever that we need to do something about the medical malpractice crisis that faces America.

I understand, and I think those who follow it understand, that in my State of Illinois and in other States around the Nation medical malpractice premiums have gone up so dramatically that good doctors who have no experience of having ever been sued successfully for medical malpractice see their premiums go up by 30, 40 percent, and more. These doctors, frankly, cannot continue to practice under those circumstances and are forced into early retirement or have to transfer their practices to adjoining States with different malpractice laws.

Hospital administrators talked to me about what it means for them. When you do not have a neurosurgeon on staff at a hospital, how can you open an emergency room or give trauma care? It is a legitimate, real concern. These doctors and hospitals are facing an increased cost for malpractice premiums that must be addressed as quickly as possible by either the States where these are occurring or by the Federal Government.

Most people point toward a solution that involves tort reform. I am one of them. I believe tort reform has to be part of the solution to the medical malpractice challenge we face. I also believe we have to include elements in this whole issue that address the number of medical errors committed each year. Some 98,000 Americans, it is estimated, die each year from medical malpractice-not from their disease or the illness that brought them to the doctor but simply because they were treated improperly and incorrectly.

It is an epidemic, according to some medical sources. Medical errors and medical negligence have to be reduced so the universe of bad results is reduced, as well. That will lead, of course, to fewer cases being filed and less litigation.

When it comes to malpractice itself in the courtroom, we have to find ways to make certain that only worthy, good, deserving suits go forward, to make certain those that should not be filed that may be frivolous or unnecessary are stopped early in the process before they cost both the doctors, hospitals, and their insurance companies the precious resources they are paying each year in premiums. We have to figure out a reasonable way to approach this. We can. We can do it on a bipartisan basis.

I reject the idea of caps, which is the only proposal that has been brought consistently to the Senate. To say we will sit as a jury for medical malpractice cases across America is to take away the jury system, which is basic to American government. Instead of 12 people in your neighborhood and community making the decision, we will make the decision, and we will decide the maximum amount one can recover, regardless of the injury which you, as an innocent patient, suffered.

We need to address tort reform that does not include caps on noneconomic losses. We can. I hope we can. I have said to the doctors and hospitals, I have reached out across the aisle to my friends on the Republican side to find common ground. Be prepared to make concessions on both sides, but let's address it now. We cannot allow this to continue.

The one thing we all agree on is even if tort reform is passed tomorrow, it will be years before it has any impact in reducing medical malpractice premiums. Why? Because the doctors in practice today who performed surgeries or dispensed medical services in years gone by are liable for years under statutes of limitations for what they have done in the past, and those years could be extended to a period when the actual injury is discovered which could be many years after the act was committed.
Even if we change the law today, all of that past conduct and exposure to liability will be there, and malpractice premiums will continue to be very high.
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What I have proposed is that we do something immediately to provide relief to doctors and to hospitals. What I have suggested is that we consider the establishment of a tax credit and reimbursement of medical malpractice premiums for some doctors and hospitals. Senator Lindsey Graham, a Republican from South Carolina, has joined me in this amendment. Our amendment allows doctors and hospitals to claim a tax credit for a percentage of the malpractice premiums they are paying and will pay during the years 2004 and 2005. If a doctor is in a high-risk specialty with increased risk of complications, they would be eligible for a tax credit equivalent to 20 percent of their total malpractice premium. The credit would be taken for premiums up to twice the statewide average for the specialty in which the doctor practices.

Let me explain that. A doctor can deduct his medical malpractice insurance costs now from his business costs or his business revenue. We could add to that a 20-percent tax credit on top of the deduction. That would help these doctors immensely in dealing with the increase in these malpractice premiums. High-risk doctors include those in all surgical services and subspecialties, emergency medicine, obstetrics, or anesthesiology, or those doctors who do interventional work that is reflected in their malpractice premiums.

Doctors who practice in lower risk specialties-general medicine, for example-would be eligible for a 10-percent tax credit.

For-profit hospitals are eligible for a tax credit equivalent to 15 percent of their total malpractice premium, including nursing homes, as well, if they need malpractice insurance.

Those that are nonprofit institutions, hospitals and nursing homes, are eligible for reimbursement under a 2-year grant to the Health Resources Services Administration at the Department of Health and Human Services.

What we are trying to do is provide immediate relief while we work out the issues of reducing medical errors and tort reform, understanding if we pass legislation today, dealing with those two issues, tort reform and medical errors, these doctors and hospitals would still see staggering premiums for years to come. This is a responsible way to address the immediate need.
I say to my friends in the medical community, though you may not agree with me on the issue of caps, I hope you understand that even if you had your way and passed the caps limiting recovery for those who are victims of medical malpractice, the premiums would still continue to increase on your medical malpractice insurance.

This Durbin-Graham amendment, also supported by Senator PATTY MURRAY of Washington, provides immediate relief.