Thursday, April 24, 2008

U.S. Senator Johnny Isakson (R-GA)
Floor Statement on Health Care
Remarks as Delivered on the Senate Floor

Madam President, I rise this afternoon to talk for a few minutes about health care in America--the cost of health care in America, the access to health care in America, and to talk prospectively about the first 4 years of the next President of the United States. It is pretty obvious, because of the complexity of health issues and because of a political campaign year, we are not going to get to a resolution this year.

It is obvious our country has a crisis. It is obvious we have to move forward. It is obvious to me that whoever the next President of the United States is, the very first thing they are going to have to tackle is affordable, accessible, and quality health care.

The health care issue is one that has a million angles to it. I am not going to talk about all those angles today. Secondly, I am not going to stand up here and tell my colleagues that I think I have all the answers. However, I do think it is time that all of us who have said: Well, I am not for government-provided health care--that is not good enough. If you are not for it, you have to be for something. You can't have the easy way out. There have been a lot of people who say: I don't want single-payer health care; I don't want the Government to do to health care what they did at the IRS, but I don't have any good ideas.

It is time we came up with some goods ideas. We are going to have to do what is maybe different and philosophically and politically challenging to Republicans and to Democrats. But first what we ought to do is look to successes around the country that have solved some of the cornerstone issues in terms of the costs of health care.

One of those is the cost of medical malpractice and what is commonly called tort reform. The minute a politician mentions tort reform, they get everybody's attention, but in particular, a trial lawyer's. I am not a trial lawyer basher. Some of my best friends are trial lawyers. I always tell people: Everybody hates lawyers, but they love their lawyer. When you need a lawyer, you want a good one. I wish to bring a perspective to the tort issue as it deals with medical malpractice to try and point out there have been solutions found--solutions that do not prohibit an injured person from being compensated for the damages that were caused to them, while at the same time quantifying and capping at a predictable amount for those actuaries the cost of what these runaway awards have been doing to us.

We have tried on the floor of the Senate, on more than one occasion, to address this, in part. We tried with legislation in the 109th Congress to limit or to cap noneconomic damages in OB/GYN cases. The reason we targeted OB/GYN and obstetrics cases was because they consistently have runaway insurance premiums; we consistently have problems in our States where there are not enough doctors to deliver the babies for families in our communities because there are not enough doctors who can afford the medical malpractice insurance as it rises.

Unfortunately, we never passed that in the Senate, although in two different amendments we tried. In my judgment, it would have helped with the situation. Today, I want to talk about a good example from my State of Georgia and about some things I think we can do in the Congress.

In 2005, our State Senate in Georgia passed a Senate Bill 3, by a vote of 39 to 15, and it went to the house and passed by a vote of 136 to 34. Obviously, it was bipartisan. We have had 2 years' experience with that bill. The experience has demonstrated what we had hoped it would: No injured person was aggrieved or denied coverage or recovery, but the cost of health care on medical malpractice became more predictable and rates stabilized.

The points in that bill that passed in Georgia are precisely the points we ought to look at in terms of the Federal court system. Point No. 1, eliminate joint and several liability in a medical malpractice case. For those who may not know what that is, it means if somebody is injured, or alleges they have been injured, and they file suit against the person who injured them, in the normal course of our litigious society, they also sue everybody else who is even remotely related to that particular situation. I was a real estate broker in Georgia. If we sold a new house to a family and the first time it rained after they moved in the basement leaked, they sued the builder, but they sued me, too, so they had a wide sweep to try to recover. I understand that. There are times when joint and several is appropriate, because sometimes more than one party in an injured class situation is involved in the injury and should be held accountable. But to summarily make joint and several apply without any conditions is wrong.

What we put in the Georgia law was that the plaintiff must identify a single defendant in the suit, unless he proved clearly and convincingly that the hospital or the physician and others in the system were also negligent. That is not unreasonable. We want to make sure that if somebody is injured by a doctor, they can recover. But then to hold the hospital, or the hospital authority, or the county health authority liable, when they were not part of the procedure, we don't think that is right. That is one of the reasons you have a tremendous cost of malpractice insurance.

Second, to strengthen expert witnesses, who are critical in any court situation where you are trying to prove damages. But experts ought to be experts. For example, if you have a traumatic brain injury, the expert testifying on behalf of the plaintiff and the expert testifying on behalf of the defense ought to both have neurological training. It is not right for a dentist, who happens to be an MD, to testify in a neurological case. So by putting in requirements in terms of witnesses, you establish a situation where you have clear, responsible testimony, and you cannot use a ``quasi'' person to give you irresponsible testimony.

Third, limit liability for emergency department physicians and personnel. I want to talk about this for a minute. Talking about Georgia again, we have Grady Memorial Hospital in Atlanta, one of the largest public hospitals in the United States. It was on the verge 6 months ago of closing because almost everybody who goes there is indigent or a nonpaying customer. They may be on Medicare or Medicaid, but in every accident that happens on the freeway system there, they take the injured to that trauma center. It is the largest burn center in the Southeast. Grady Memorial Hospital is losing so much money that it was on the verge of bankruptcy. The community has come together, with volunteer citizens such as Pete Corell and Tom Bell in our city, who deserve tremendous credit. They created a nonprofit organization to take over the organization of the hospital and raise capital, and I believe we are going to save that great trauma center and that great hospital.

Frankly, they operate under terrible circumstances in that trauma center. To have the type of liability in a trauma center that people want to hold you accountable for today with medical malpractice liability, with no Good Samaritan laws for those people isn't right. If somebody is brought in after a tragic wreck and there are not qualified exceptions for a physician to treat that person, you are never going to have the type of immediate response care that you need. You don't have the time to practice defensive medicine in a trauma situation, which, by the way, I will get to defensive medicine next. It is one of the contributing causes to the cost of health care. Defensive medicine is practiced primarily because of the court system.

I had a problem a few years ago. I went to the doctor and they said, well--they gave me this and it didn't work, so they gave me that and it didn't work. So they gave me a full-body CT scan. I had a swallowing problem. I wondered why they did a full-body CT scan. He said he wanted to be sure he had done everything he could. He had to practice defensive medicine, when a scan from the chest up would have been fine. That is one of the reasons you have runaway malpractice awards and the litigious nature of our society. It is a skewed system and you have costs running through the roof.

We need to elevate the burden of proof from the ``preponderance of the evidence'' to ``clear and convincing evidence.'' We did that in Georgia 2 years ago. I don't know about you, but if I am accused of something, I don't want somebody to decide because the preponderance of the evidence said I was wrong; I want it to be clear and convincing. That is the way it ought to be, in terms of medical malpractice as well.

Then the real hot potato--the one everybody goes ballistic on--is talking about capping noneconomic damages. Georgia did something unique. They capped noneconomic damages at $350,000. That is the pain and suffering. Noneconomic means if you were injured, all the costs of that injury, the costs of the treatment and the corrective treatment, and all the economic losses you have, you get all of that. Noneconomic is when they add on another penalty to the guilty person for the pain and suffering. Georgia capped it at $350,000. They gave an overall cap of $1.050 million, allowing the judge to lift the $350,000 if the evidence in the court case proved a higher damage was necessary. That is the point I want to address in the Federal court law.

I have three children. My second son, Kevin, in 1998 was in a terrible automobile accident in rural Georgia. He was on a camping trip with a 16-year-old buddy. They were going down a country road in Greene County, 2 a.m. in the morning--which is another subject I will get to as a father later on--and a deer crossed the road. A deer will stop in the headlights. The deer took off. My son was a passenger, and the driver decided to follow the deer rather than the road, hit a ditch, and my son went through the front windshield. He had four operations. He had to get grafts, bone marrow treatments, and he had internal infections. He has more metal in his right leg than I have in my automobile. The doctors put him back together. Making the case about litigation, I have to tell you that was a case where my son was hurt and there was negligence. I was angry. In Georgia, we have something called no-fault insurance, which means you have $15,000 in coverage, which covered the emergency room, and there is no more coverage. Everybody is on their own. But we had obvious negligence. In that case, fortunately, the young man who was driving, who was negligent--his father, although he had minimum coverage for the accident, had a general liability policy. He said: My son was wrong and your son is going through terrible pain. Let's sit down and go to my insurance company and negotiate, through a professional arbitrator, what is the right general liability award for your son. We did that. We negotiated it and used an index of nationally approved negotiators, in terms of what damage would have been right. We agreed to it and my son still has that reserve in case he has further complications from the damage done. No liability responsibility, but a cost that was appropriate for the injury, rather than gained through a court case and a litigious action.

It is my personal opinion that we should cap noneconomic damages in the Federal court and medical malpractice in the following way: Change the current law. The current law allows a judge to reduce the amount of the award if he doesn't think it was right. The judge can reduce it. I think we ought to cap liability on medical malpractice at a million dollars for the noneconomic damages, but then say the judge can lift that cap if the evidence in court proves gross negligence. That changes the dynamics of litigation. Instead of suing and going for big bucks because you can, you will realize that the burden of proof is to justify the big bucks based on your circumstances and the facts of the case, and you don't intimidate people into negotiating high settlements. Instead, you put the burden on clear and convincing evidence, which, in my case, as I have said, is the only way to go.

Medical malpractice is certainly not the only cause of the higher costs of health care in America. Solving medical malpractice costs doesn't address all of the other factors, but it is a component part. I am willing to sit with others and talk about all those other things we beat our gums about but never do anything about that are components of the cost of health care.

I will talk about what we need to do in terms of Medicare eligibility. When somebody signs up for Medicare when they are 65 years old--you are supposed to go in 90 days before your 65th birthday; I am getting close, so I am looking at these things--I think you ought to be required to execute a durable power of attorney when you become eligible. Eighty percent of the cost of health care to me, to you, and to anybody else happens in the last 60 days of life. More often than not, people are not in a condition to make a decision for themselves. Because of laws, and because we are a compassionate nation, the physician will keep you alive as long as he can. If you had a chance, you might rather say if I am being hydrated and given nutrition but will never become conscious again, I give the doctors the authority to make the appropriate medical decision. The money that would save is in the ``gazillions'' of dollars--if there is such a number. It would help us to manage that cost.

Secondly, we need accountability on the part of the American policyholders, and wellness and disease management. My second son's father-in-law is a Swede. He came to America and now lives here full time. He bought a medical insurance policy independently, because he is retired. About 6 months ago, he called me and we went out to dinner. He ordered a salad, broccoli, and asparagus, and he didn't put any sugar in his tea. I said: What are you doing? What kind of a diet are you on? He said: It is my health insurance, not my diet. My policy will go up to $500 a month if I don't get my cholesterol below 200. His vital signs are a component of health care and, if he wasn't taking care of himself, he would pay a higher premium for the benefits he needed. We need to look at disease management and wellness and accountability.

I came to the floor to talk about what is going to be the biggest issue in the first term of the next President, the biggest crisis. If I am fortunate enough to win reelection in 2010, the Nation's Medicare system is going to be broke before I leave the Senate. This is not an issue we need to talk about in the future. The time is now. It is time for good men and women of both political parties to put all of the issues on the table and not just talk about what they are not for but start talking about the solutions that can make a difference in the quality, accessibility, affordability, and health care for the people of the United States of America.