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CNN Crossfire

What Should a Patients' Bill of Rights Include?

Aired June 14, 2001 - 19:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL PRESS, CO-HOST: Yes, the doctor and dentist are both in, in CROSSFIRE tonight, to debate the next big issue facing Congress, a patients' bill of rights.

On one side, the unusual team of John McCain, John Edwards and Ted Kennedy, whose support a patients' right to sue and HMO in state and federal court, including punitive damages of up to $5 million.

On the other side, the equally bizarre team of Bill Frist and John Breaux who, together with President Bush, want to limit lawsuits to federal court, and allow for no punitive damages but cover pain and suffering of up to $500,000.

Bush says he will veto the McCain-Kennedy bill. All sides met today at the White House to try to hammer things out, they failed, so we will try again tonight -- Tucker.

TUCKER CARLSON, CO-HOST: Now, Congressman Norwood, you are supporting legislation that would provide no cap for damages for pain and suffering. This would be a pinata party for the trial lawyers. How did you, a sensible Republican, wind up on the side of these characters -- the trial lawyers?

REP. CHARLIE NORWOOD (R), GEORGIA: I'm not supporting legislation, I wrote legislation. And the reason we had no caps in it is simply because we had a president who would veto a bill that had caps in it. That was President Clinton. Remember, this didn't start yesterday. This has been going on for six years this month.

Now you, Bill, probably will have some caps in at some point in time, because we have a president who says, I won't sign a bill that doesn't have caps in it. But right now, we need to take the best we got, pass it out of the House, pass it out of the Senate, and go to conference. And we'll happily meet with the president who wants a bill, too.

PRESS: Well, Congressman Fletcher, caps in there only protect the HMO executives and the insurance companies. Why would you rather protect insurance executives than patients?

REP. ERNIE FLETCHER (R), KENTUCKY: Bill, I think you know 33 states now have malpractice tort reform that do put caps on it, so it's something that is very reasonable. What we don't want to do is take money out of patient care and put it in the pockets of trial lawyers.

California, for example, has caps -- $250,000. So it's not unusual. It's appropriate. It keeps away frivolous lawsuits and money from going into trial lawyers' pockets instead of patient care.

CARLSON: Congressman Norwood, I have to give you credit for admitting to having written legislation like that, but explain in a thematic way, if you will, how more lawsuits with bigger awards will make American medicine or America a better place.

NORWOOD: Tucker, you assume there'll be more lawsuits.

CARLSON: Of course! With no caps!

NORWOOD: That is an assumption that isn't necessarily correct. It is an assumption that is proved wrong in Texas and Georgia. As other states have passed patient protection bills.

It doesn't automatically lead to more suits. What it leads to, however, having that hammer, it leads to better patient care, because they are going to be a lot slower to deny care that is...

CARLSON: So you are telling me when you dangle the prospect of an enormous award in front of trial lawyers, they won't sue more often?

NORWOOD: I'm going to tell it to you this way, Tucker. There is no excuse in 160 million Americans not having due process of the law on this particular subject that is their health care insurance. It is the only industry in America that cannot use the judicial system to right a wrong. That is wrong.

If you want to have legal reform, I will lead the fight. But this is a bill about protecting patients that have been run over for the last 30 years, and we need to give them the same due process that everybody else has in America, on all other subjects, such as slip and fall, et cetera. You want to come back and do legal reform? I will do it.

PRESS: Congressman Fletcher, let me pick up on that. Let's just talk about the principle here: If my doctor screws up, I can sue my doctor. My hospital make a mistake, I can sue my hospital. I can't sue the HMO. Why shouldn't I be able to sue the HMO? Why should they be privileged people?

FLETCHER: Let me correct some things that have been said. And Bill, right now in state court, what's happening, if an insurance company refuses to care for a patient, they are ending up in state court without the limits and all the things the physician would end up.

If it's only looking at coverage decisions, they end up in federal court. We have I think reasonable legislation that would allow a certain redress, allow to go in federal court, so that an employer that is voluntarily offering health care, doesn't end up with 50 different rules in 50 different states. Imagine the cost it will be. I have talked to employers that say, we're not going to provide the kind of insurance if we are opened up to unlimited trial lawyers that bring frivolous suits and really inhibit their ability to provide health care. So I think it's not an issue of redress. It's an issue of making sure that we can focus on the patient, that we do have good accountability and that we provide coverage for the 43 million people that are uninsured in this country.

PRESS: Well, Congressman, I think beating up on the trial lawyer gets a little tiring after a while. You talk about -- just a second, you talk about these states, OK, and mostly, they go to state court. Now you want to pass a bill that says, you can only go to federal court, when in fact, the Judicial Commission led by Chief Justice William Rehnquist, and the National Association of State Attorneys Generals says, that malpractice suits belong in state court, not federal court.

You want them in federal court in order to shut down what the states are doing.

FLETCHER: No. We have precedent on this, Bill. We have...

PRESS: Why is Rehnquist...

(CROSSTALK)

FLETCHER: One thing the federal courts may not be able to handle. If it's a logistics problem, let's handle that. And also, if it's truly a malpractice and they are not delivering the care, then they will be going to state court.

NORWOOD: It is not just a logistic problem. That's not the entire problem. The part that really bothers people most about going into federal court is that it makes it so difficult for these people...

FLETCHER: I was talking about what Rehnquist said, when he said there was a lot of problems....

NORWOOD: You cannot find any federal judge in Kentucky who will agree that we ought to federalize this issue. You may find some nominees in Kentucky who will agree that we ought to federalize this issue. The federal judges know we shouldn't federalize this thing. We should not take it in to federal court. And that's another show, if you want to talk about the differences.

But you said there'd be 50 different remedies in 50 different states. That will hold true if you go to federal court. There is no jurisprudence in federal law today to deal with it. The federal judges will have to look to the common law in the state of Georgia and the state of Kentucky to deal with the case.

FLETCHER: Let me say something: first of all, what we really need to focus on is patient care and access here. We don't need to focus on a trial lawyer's bill. We've got -- if you take Florida, Georgia, Illinois, Oregon, Utah -- those states -- that would be the number of population, the number of people that do not have health care in this country right now.

You take a JAMA study published in January of 1997. It shows that uninsured patients in the hospital is three times more likely to die, three times the mortality rate than an insured patient. And if we are talking about driving up costs from frivolous lawsuits, we are talking about the well-being of patients, and that's what the issue is.

We've seen a number of employers who are voluntarily offering health care. We want to hold them accountable, absolutely, but to open them up to unlimited trials -- unlimited liability is not going to improve health care. It's not shown to improve health care, and doctors have shown...

NORWOOD: ... drive up the cost. Who said that?

CARLSON: I think the Congressional Budget Office. They said that the Kennedy bill would increase the price of premiums by 4.2 percent. And a separate study...

NORWOOD: Not on liability alone. They said -- now, get it right. The CBO said that it will increase the cost for -- it is not the Kennedy bill. It is -- let's get that straight. It is the Dingell-Ganske-Norwood-McCain-Edwards-Kennedy bill. What...

CARLSON: I think Kennedy is a handy shorthand for that bill.

NORWOOD: I see that you like that, and I understand that that's trying to spin it, so we won't pass it.

PRESS: Tucker, spin?

(LAUGHTER)

CARLSON: Ted Kennedy is smack dab in the middle of that legislation.

NORWOOD: Let's talk about that increase in cost. What CBO said, that our bill would increase cost because of the liability 8/10 of a percent. They said on the Frist bill, that everybody is for, in the White House, that the cost there on the liability would go up 4/10 of a percent. Now, we're talking about just the liability.

FLETCHER: Let me interject something here.

(CROSSTALK)

NORWOOD: Now, that is a $2 a month difference in the premium in a bill that we have that actually gives patients protections versus a bill that says you can have $500,000 in noneconomic damages, you can have no punitive damages, and incidentally, if negligence occurs because it is contractual issue and you happen to die or be harmed, you get zero. The court gets $100,000, the patient gets the cost of the care for $2 a month...

CARLSON: No, no, the Lewin Group did a study on this, and they said for each point, percentage point, that presumes rise 300,000 American will lose health coverage. These are real numbers.

NORWOOD: They were not talking about this particular patient protections bill. They were talking about mental health at the time. That too has been spun to be used just like...

CARLSON: So you're telling me...

FLETCHER: Let me interject something here because I think we need to (UNINTELLIGIBLE). First of all, the Kennedy bill does allow lawsuit...

PRESS: Kennedy-Norwood-Dingell...

(CROSSTALK)

FLETCHER: That bill will allow lawsuits even before the physicians have made a final decision on the external review. It will allow just alleged injury, it will allow lawsuits to go forward. That's going to promote frivolous lawsuits.

And let me say something else, first of all. What we need to look at additionally is the fact that when you look at evaluating and scoring these plans, CBO says 4 percent. Some folks looked several years ago, said up to 28 percent. Let me tell you why: because something CBO hasn't taken into account.

One of the things that frivolous lawsuits do is drive bad medicine.

PRESS: I want to interrupt you because you keep using this frivolous lawsuits. Look, in Texas -- Texas -- when George Bush was governor...

(CROSSTALK)

FLETCHER: It's apples and oranges, Bill, and you know that.

PRESS: It is not. George Bush as governor of Texas, this bill became law without his signature -- 1997 -- allowed people to sue their HMOs

(CROSSTALK)

PRESS: Since 1997, if I can finish my question, there have been 10 lawsuits. How many in Georgia -- four, right? Where are all these lawsuits? They don't exist, hardly.

(CROSSTALK)

FLETCHER: You are comparing apples and oranges because it did not change...

(CROSSTALK)

FLETCHER: Just a minute. Let me answer Bill right now, John. What this did, Bill, was the fact that when you look at Texas -- first of all, this was being challenged in court at that time. What trial lawyer is going to invest a tremendous amount of money when it's being investigated in court?

It did not have the same ARISA exemption. They don't have the purview over ARISA that we do. This is a totally different bill than what happened in Texas. Anyone tries to compare it is comparing apples and oranges.

NORWOOD: What -- the result of that bill, though, is similar to what we are trying do. You're right, it didn't change ARISA. What it did -- and you can ask any physician in Texas or at least most of them I know -- and they will tell you it changed the mentality of the HMO.

FLETCHER: And that needs to happen, John...

(CROSSTALK)

NORWOOD: Well, that's all we are trying to do is change their mentality.

FLETCHER: You don't change it by causing more uninsured.

(CROSSTALK)

NORWOOD: ... and also will not improve the quality of medicine.

FLETCHER: Let's talk about...

(CROSSTALK)

CARLSON: We will talk about the effect of lawsuits on the attitudes of HMOs and the rest of America when we return on CROSSFIRE. We'll be right back.

(COMMERCIAL BREAK)

CARLSON: Welcome back to CROSSFIRE. America is getting a patients' bill of rights. Almost everyone agrees with that. The question is, which one? The Republican version, supported by some Democrats, or the Democratic version supported by some Republicans. It's a debate about money medicine and morality.

With us tonight, two Republicans on the opposite sides of this unfolding drama: Congressman Charles Norwood of Georgia and Congressman Ernie Fletcher of Kentucky -- Bill Press.

PRESS: Congressman Fletcher, I'm not an attorney. I know a little bit about how the law works and I just want to get right to you on this dollar question. OK, so if somebody sues an unsafe product, they can recover their economic damages. For example, they can them to pay to cover the cost of pain and suffering. And there's something called punitive damages, which means you really punish them so that these big corporations will not do the same thing again. Established across the country for a long time. You would ban punitive damages in your bill. Why not? Do you just think that the HMOs own their own good faith are going to become better citizens?

FLETCHER: Let me talk about employers that voluntarily offer health care, because that's where...

PRESS: No, I really want you to talk, if you will, about why no punitive damages.

FLETCHER: Bill, let me answer the question. But where the real heart of the matter goes is employers that are voluntarily offering health care will be opened up to unlimited lawsuits. Now if you are voluntarily offering a benefit, are you going to continue to do that? The unions, the same way. They will all be subject -- both employers and unions.

You know the No. 1 concern about patients out there: The first being the cost of health care, the No. 2 is the health care they get through their employer. And that is what is possibly threatened by this bill. We do allow redress. You've got to make a distinction.

First off, there are already in the courts precedence: If an HMO employs a physician and they refuse care, they can go to state court. What we are talking about is providing a bill that makes sure that you go to internal review, you go to external review by experts, so that patients can get the care they need, and there are the redress to ensure that insurance companies follow the rules.

PRESS: I would invite you again to answer my question: Why no punitive damages? If you sue Ford Motor Company, punitive damages. You know, you sue makers of baby pajamas -- punitive damages. Why should HMOs not be subject to the same clout?

FLETCHER: What we have said is, if they refuse to give the care, obstruct care, they are subject to punitive damages. You are not hearing me, Bill. If they refuse care, then they are subject. And if you read my bill you will be surprised that they do go to state court if they overturn expert opinion.

NORWOOD: Let me get a word in about the employers, because I think, Ernie, you might be onto something there. There isn't anybody on my side of this bill, now or ever, who wants to put employers in a bad situation. And we have worked our hearts out over the last six years trying to do that.

We have all kinds of language in there that gives them safe harbors. We're willing to say it anyway you want to say it. I have said it to the White House. If they can write better language to protect employers, let's have at it. But we ended up saying just one thing: If you, as an employer, directly participate in a medical necessity decision that is negligent that harms or kills somebody, like Jimmy Adams in Atlanta who lost both hands and both feet -- that's sort of harming somebody -- if you directly participate in that decision you are going to be liable. Now somebody here tell me why that is wrong. FLETCHER: Let me talk with you about the issue. Charlie, under your plan right now, if an employer comes in as a patient advocate or a union comes in and says, we want to make sure we provide this treatment and something happens from that, they can be liable for that because they're...

(CROSSTALK)

NORWOOD: That is absolutely incorrect.

FLETCHER: ... read our bill. We have a safe harbor and it says to the judge, you cannot do that.

NORWOOD: No, they go to court.

FLETCHER: They've got to go to court and prove it.

NORWOOD: You can go to court in this country...

FLETCHER: ... and they'll end up in state court.

NORWOOD: Thank God you can go to court in this country, because it's the only justice system we have. If you want to get back to dueling, we can do that. But we have a justice system.

PRESS: No, no, no.

CARLSON: No talks of violence here, Congressmen.

(CROSSTALK)

NORWOOD: Well, if it were my granddaughter that got killed by an HMO, I don't know if I'd want to go to court or not. It'd be dueling.

(LAUGHTER)

FLETCHER: John, I have practiced medicine. I've taken care of the uninsured. I've taken care of folks. I've worked under the hassle of HMOs. We still need to maintain a control of cost of health care. I've taken care of uninsured patients that come in with advanced disease...

NORWOOD: Nobody's saying we shouldn't -- nobody's saying that.

FLETCHER: Now, wait just a minute. They come in with advanced disease. And if we're going to drive up the cost or force some employers to drop their health care, and for some reason, even though all the employers across the country say that's a very possible reality, you seem to in total denial of that.

NORWOOD: That's because the insurance industries don't want to have a bill.

PRESS: Exactly.

FLETCHER: We're not talking about insurance companies... (CROSSTALK)

CARLSON: Hold on.

PRESS: All right, hold it one second.

CARLSON: Let's talk about who doesn't want the bill. Let's talk about the politics of this quickly here. Now, you obviously want it, you worked for it for six years. There are a lot of Democrats who don't want it, because they're not thinking of this as legislation...

NORWOOD: How many?

CARLSON: Well, I left my list at home, of the actual tally...

(LAUGHTER)

NORWOOD: Two voted against it in '99.

CARLSON: Let me ask you this question, Congressman. Democrats are going to use this as a campaign issue in November of 2002. You're very close to the White House on this, and yet, the last minute, you defect, thereby handing Democrats a campaign issue. Why would you do that?

NORWOOD: I did not defect. What I did was I thought that we should give the White House time to work this out. And the reason I thought that is I spent a lot of time with Governor Bush. I know he won't...

FLETCHER: President.

NORWOOD: No, Governor Bush, before the election, talking about this very subject. I knew he wanted a patient protections bill. He was pleased with what had happened in Texas. He convinced me that as president he was going to have a patients' protections bill. I took my name off of my own bill so that we could work with the White House, which we have done for the last four months. This president wants a bill, and we got that close. We're in a lot of agreement.

CARLSON: Then why at the last minute?

NORWOOD: Wait just a minute. We didn't get all the way there. I didn't defect. What I did was decide that the only way we could complete negotiations and get some of the things, perhaps, Ernie wants, is we're going to pass the Ganske-Dingell bill, the McCain- Edwards bill in the House, in the Senate...

PRESS: Running out of time. My last political question to you is, the most conservative member -- you guys are nothing compared to the most conservative member of Congress we have on the show, who is Bob Barr. Bob Barr supports this legislation. Can it be so bad if Bob Barr is for it?

FLETCHER: You know, Bill, that's probably the only thing you and Bob Barr agree on. But then let's talk about... NORWOOD: So what?

FLETCHER: If we focus on patient care -- and that's where I've spent the most part of my adult life -- and then saying, let's get the uninsured covered, this goes in the opposite direction.

NORWOOD: Absolutely wrong.

FLETCHER: Well, no, Charlie, I think we have...

NORWOOD: Back to the provisions in our bill, will increase the number of people.

(CROSSTALK)

PRESS: Let the record show -- let the record show we end on that point of disagreement.

Congressman Fletcher, Congressman Norwood, we wouldn't want you to agree at the end, and Tucker and I won't agree either when we come back with our closing comments. Coming up, that throbbing heart. We'll be back.

(COMMERCIAL BREAK)

CARLSON: So you want to fix American medicine bill? I've got an idea. Bring in the trial lawyers. Once they get their greedy, sausage-like fingers in the pie, all we've got -- or ask the people who used to make playground equipment or small aircraft what happens when the trial lawyers get involved. It does not improve the product.

PRESS: This is great. Keep attacking trial lawyers, Tucker, all the way to 2002. Let me tell you -- you know what trial lawyers do? Trial lawyers file lawsuits on behalf of people that ask them to. They represent the people. You know what insurance executives do?

CARLSON: They chase ambulances, is what they do, actually.

PRESS: Insurance executives deny coverage to people who need it, and then say they should not be allowed to be sued.

CARLSON: That is a 1930s caricature.

PRESS: Any day.

CARLSON: That is, like, literally out of a cartoon.

PRESS: Any day, I'd rather be on the side of the trial lawyers than the insurance executives. Damn right. From the left, I'm Bill Press. Good night for CROSSFIRE.

CARLSON: And from the right, I'm Tucker Carlson. Join us again tomorrow night for another edition of CROSSFIRE.

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