Sen. Edward Kennedy (D-Mass.) called two bills intended to curb medical malpractice litigation "unfair" and undeserving of being "taken seriously by the Senate" during floor statements this evening.
This legislation (S. 22) is not a serious attempt to address a significant problem being faced by physicians in some states. It is the product of a party caucus rather than the bipartisan deliberations of a Senate committee. It was designed to score political points, not to achieve the bipartisan consensus which is needed to enact major legislation. In fact, the legislative language was not even available for review until late last week. For these reasons, it does not deserve to be taken seriously by the Senate.

Kennedy continued
The proponents argue that they are somehow doing these women and their babies a favor by depriving them of the right to fair compensation when they are seriously injured. It is an Alice in Wonderland argument which they are making. Under their proposal, a woman whose gynecologist negligently failed to diagnose her cervical cancer until it had spread and become incurable would be denied the same legal right as a man whose doctor negligently failed to diagnose his prostate cancer until it was too late. Is that fair? By what convoluted logic would that woman be better off? Both the woman and the man were condemned to suffer a painful and premature death as a result of their doctors’ malpractice, but her compensation would be severely limited while his is not. She would be denied the right to introduce the same evidence of medical negligence which he could. She would be denied the same freedom to select the lawyer of her choice which he had. She would be denied the right to have her case tried under the same judicial rules which he could. That hardly sounds like equal protection of the law to me. Yet, that is what the advocates of this legislation are proposing.

Of course, this bill does not only take rights away from women. It takes them away from newborn babies who sustain devastating prenatal injuries as well. These children face a lifetime with severe mental and physical impairments all because of an obstetrician’s malpractice, or misconduct by a health care provider or insurer. This legislation would limit the compensation those children can receive for lost quality of life to $250,000 in nearly all cases -- just $250,000 for an entire lifetime! What could be more unjust?

There are babies who suffered serious brain injuries at birth and will never be able to lead normal lives. There are women who lost organs, reproductive capacity, and in some cases even years of life. These are life-altering conditions. It would be terribly wrong to take their rights away. The Republicans talk about deterring frivolous cases, but caps by their nature apply only to the most serious cases which have been proven in court. These badly injured patients are the last ones we should be depriving of fair compensation.

The entire premise of this bill is both false and offensive. Our Republican colleagues claim that women and their babies must sacrifice their fundamental legal rights in order to preserve access to Ob/Gyn care, that they must leave their rights at the door. The very idea is outrageous. For those locales –mostly in sparsely populated areas – where the availability of Ob/Gyn specialists is a problem, there are far less drastic ways to solve it.

This bill is based on the false premise that the availability of Ob/Gyn physicians depends on the enactment of draconian tort reforms. If that were accurate, states that have already enacted damage caps would have a higher number of Ob/Gyns providing care. However, there is in fact no correlation. States without caps actually have 29.1 Ob/Gyns per 100,000 women, while states with caps have 25.5 Ob/Gyns per 100,000 women. States without caps actually have more Ob/Gyns serving their female population.

This is not a more acceptable bill because it applies only to women and newborn babies injured by obstetrical and gynecological malpractice. That makes it even more arbitrary, even more outrageous. Not one victim should be denied the basic rights that this bill would take away.

I urge my colleagues to oppose both of these very unfair bills.