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Statement of Senator Dianne Feinstein On the OBGYN by ykk17235


									       Vol. 150                     WASHINGTON, TUESDAY, FEBRUARY 24, 2004                    No. 20

                              Statement of Senator Dianne Feinstein
                         “On the OB/GYN Medical Malpractice Reform Bill”
Mrs. FEINSTEIN.              Mr.       The FDA exemption sets, in a        insurance of $57,000, which is
President, I cannot support this       way, a downward course. If a        about a quarter of what it is in
bill. I don't believe it reflects      company has an FDA-approved         Florida.
compromise. I don't think it is        product on the market and then
materially changed from the bill       learns      of      dangerous       According to the American
that failed to get 50 votes last       complications, the company          College of Obstetricians and
July. The major difference, as I       must remove the product from        Gynecologists, 20 percent of
see it, in this bill is that the       the marketplace immediately.        obstetricians and gynecologists
liability restrictions apply to        To provide an exemption for         in Nevada are leaving their
only one medical specialty             products with FDA approval          practice     due   to    rising
group,      obstetricians    and       may well be a disincentive to       malpractice insurance costs.
gynecologists.                         prompt removal from the shelf.      Twenty percent of OB/GYNs in
                                                                           West Virginia and Georgia have
This bill sets a national cap of       I am one who believes there         been forced out of their
$250,000 for noneconomic               needs to be a solution to rising    practice. I could go on and on
damages. The cap applies not           malpractice           insurance     and on.
only to suits against doctors but      premiums. I want to talk to that
to suits against HMOs and to           solution in just a moment. But,     I want to talk for a moment
manufacturers of gynecological         it is correct that obstetricians    about California, and then I
or obstetric products as well.         and gynecologists are reeling       want to talk about what I think
                                       under     exorbitant    medical     is a logical solution to this. But
So, under this bill, the Dalkon        malpractice premiums.               up to this point, the AMA and
Shield contraceptive device                                                my own medical association,
would be shielded by this              Obstetricians and gynecologists     the      California       Medical
$250,000 cap regardless of the         had more claims against them        Association, won't buy it.
harm caused.                           and paid out more money to          Congress can and should
                                       plaintiffs than any other medical   provide some legislative relief.
Moreover, this bill severely           specialty between 1985 and
limits the availability of             2000.                               MICRA, the Medical Injury
punitive    damages    against                                             Compensation Reform Act,
OB/GYNs and manufacturers of           Prior to the State of Florida       took place 29 years ago in
related products.    The bill          passing medical liability caps      California.    MICRA set a
would       also    immunize           last year, OB/GYNs in Florida       precedent in the ensuing years
manufacturers or sellers of            paid over $200,000 annually for     for reform measures in several
gynecological         products         malpractice insurance.              States.     The MICRA law
approved by the FDA from               OB/GYNS in California, a State      provides a model.
punitive damages.                      with liability caps, pay an
                                       average      in     malpractice
Last year, I spent several             The proposal I would put out           the State laws do not currently
months reviewing MICRA to              for people to study today takes        allow a State to set a cap. This
see what could be transferred to       those parts of MICRA which I           would allow in those States for
the national level. I have come        thought could serve as a               the cap to be $500,000.
to believe it is possible that         national model.
reasonable caps on liability can                                              In catastrophic cases where a
lead to affordable premiums.           For example, a schedule of             victim of malpractice was
                                       attorney's fees; a strict statute of   subject to severe disfigurement,
When MICRA was enacted in              limitations     requiring       that   severe disability, or death, the
1975, the cost of health               medical negligence claims be           cap would be the greater of $2
insurance in California was            brought within 1 year from the         million or $50,000 times the
higher than in any market              discovery of an injury or within       number of years of life
except New York City. In the 6         3 years of the injury's                expectancy of the victim. This
years before 1975, the number          occurrence; the requirement that       handles the situation of a very
of malpractice suits filed per         a claimant give a defendant 90         young victim who was really
hundred      physicians     in         days' notice of his or her intent      the victim of egregious
California had more than               to file a lawsuit before a claim       malpractice.
doubled.                               can actually be filed; allowing
                                       defendants to pay damage               In addition, my proposal would
MICRA has kept costs down.             awards in periodic installments;       have less onerous punitive
In 1975, California's doctors          and allowing defendants to             damages       standards     than
paid 20 percent of the gross           introduce evidence at trial to         California law. California law
costs    of all   malpractice          show that claimants have               would require a plaintiff to
insurance premiums in the              already been compensated for           prove punitive damages under
country.    Today, it is 11            their injuries through workers'        the very high standard of fraud,
percent.                               compensation               benefits,   oppression, or malice. Under
                                       disability    benefits,       health   this standard, I am not aware of
California's premiums grew 167         insurance, or other payments;          a single case where a plaintiff
percent over the past 25 years         and permitting the recovery of         has obtained punitive damages
compared to 505 percent in             unlimited economic damages.            in California over the past 10
other States. So the growth in         All of these points are now in         years. However, if the State
California is just about less than     play in California. I believe          wanted to keep that -- any State
a third of what it is in the rest of   they are applicable nationally.        -- they could under my
the United States.                                                            proposal.
                                       The differences from the
In California, patients get their      California MICRA that I would          But I would offer a four-part
money     faster.    Cases     in      propose would be in two key            test where a plaintiff would
California settle 23 percent           areas. The first is noneconomic        have to show by clear and
faster than in States without          damages, and the second would          convincing evidence that the
caps on noneconomic damages.           be punitive damages.                   defendant, (1) intended to injure
                                                                              the claimant unrelated to the
MICRA allows patients to               The California MICRA law has           provision of health care; (2)
obtain health care costs, recover      a $250,000 cap on noneconomic          understood the claimant was
for loss of income, and receive        damages.     That is what is           substantially certain to suffer
the funds they need to be              proposed in the pending bill. In       unnecessary injury, and in
rehabilitated. And California's        contrast, I would propose a            providing or failing to provide
malpractice premiums are now           national $500,000 flex cap, a          health care services, the
one-third to one-half lower on         general cap on noneconomic             defendant deliberately failed to
average than those in Florida          damages. This cap would allow          avoid such injury; (3), acted
and New York.                          a State to impose a lower or a         with a conscious, flagrant
                                       higher limit, but it would be          disregard of a substantial and
                                       pivotal for those States where         unjustifiable risk of unnecessary
injury which the defendant            adjusted for inflation, be        pathologist had mistakenly
failed to avoid; or, (4), acted       acceptable in 2004? If a victim   switched her test results with
with a conscious, flagrant            receives $250,000 today, it is    another woman who had cancer.
disregard of acceptable medical       the equivalent of $40,000 in
practices in such circumstances.      1975 dollars.                     A cap on noneconomic damages
I firmly believe a variant of this                                      must take into account severe
type    could      lead    to     a   There are many specific           morbidity produced by a
compromise in the Senate, but         instances of why a $250,000       physician's mistake, such as
the AMA and my own medical            noneconomic             damage,   amputating the wrong limb or
association,     the    California    especially today, remains too     transfusing a patient with the
Medical Association, both flatly      low. Let me just give you one     wrong type of blood.
rejected this proposal last year.     case. I happened to meet this
                                      woman, and it is a case that I    I remain a supporter of
They refused any cap for              think makes my argument           malpractice insurance reform.
noneconomic damages above             irrevocably. It is the case of    If at any time there would be
$250,000 even in catastrophic         Linda McDougal. She is 46.        physician support, I believe
cases. To me this makes little        She is a Navy veteran, an         then the necessary 60 votes in
sense because a $250,000 cap in       accountant, and a mother. She     this body could be generated for
1975, which was when the cap          was     diagnosed    with    an   a plan such as I have just
was put in play in California,        aggressive form of cancer and     enumerated.
adjusted for inflation, was           underwent        a       double
worth $839,000 in 2002. If            mastectomy. Two days later,       In conclusion, I will vote
$250,000 was adequate in 1975,        she was told that a mistake was   against this bill but stand ready
why wouldn't a figure of a half       made. She didn't have cancer,     to participate in a solution along
a million dollars -- $500,000 --      and the amputation of her         the lines I have mentioned.
which is lower than the cap           breasts was not necessary. A

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