F. James Sensenbrenner, May 13, 2004

A national medical insurance crisis, driven by unlimited lawsuits, is devastating our nation’s health care system, to the detriment of patients. Medical professional liability insurance rates have soared, causing major insurers to either drop coverage or raise premiums to unaffordable levels. Doctors are being forced to abandon patients and practices, or to retire early. This is particularly true in high risk specialties such as emergency medicine, brain surgery, and obstetrics and gynecology.

Unlimited lawsuits and lawyers’ lust for their cut of unlimited awards are driving doctors out of the healing profession. When you pick up the phone and call a hospital because someone you love has suffered a brain injury, and you’re told, "Sorry, lawsuits made it too expensive for brain surgeons to practice here," who will save your loved one? You can’t call a lawyer, a lawyer can’t perform brain surgery.

In Wisconsin, we recognized this problem and did something about it. According to the American Medical Association (AMA), Wisconsin is one of only six states considered to be stable in terms of the burden that the cost of malpractice insurance is placing on clinicians. Our status is largely a result of a cap on payment of non-economic damages, as well as the Injured Patients and Families Compensation Fund created in 1975, which has eased the burden on health providers in our state by providing excess medical malpractice coverage for them.

But since the AMA has designated 19 states as having reached crisis status, with the remaining 25 beginning to show signs of approaching a crisis environment, Congress has its work cut out for it. To help provide affordable health care for Americans nationwide, on May 12, the House of Representatives passed HR 4280, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2004, by a vote of 229 to 197. I strongly supported this legislation because it includes a reasonable cap on non-economic damages, provisions that prevent double recoveries, and limits on the percentage of jury awards lawyers can take. The HEALTH Act creates a "fair share" rule, by which damages are allocated fairly, in direct proportion to fault, and reasonable guidelines on awards of punitive damages. The HEALTH Act also does not preempt any state law that otherwise caps damages at a specific number.

Further, HR 4280 does not tie victims’ hands, or limit plaintiffs’ options for being fairly compensated. Under the HEALTH Act, wrongfully injured victims can receive unlimited awards to cover all their quantifiable medical costs. These costs include anything to which a receipt can be attached, such as lost wages, lost services provided, medical costs, the costs of pain reducing drugs and lifetime rehabilitation care.

We all recognize that injured victims should be adequately compensated for their injuries. But too often in this debate we lose sight of the larger health care picture. America is blessed with the finest doctors and health care technology in the world. But fewer doctors are willing to use that miraculous technology, or to use that technology in many states where they are vulnerable to abusive lawsuits. Do we want the abstract ability to sue a doctor for unlimited, unquantifiable jackpot damage awards, when doing so means a doctor you need may not be available when you or your loved ones have an emergency? Of course not, because ultimately, it’s people like you and I who suffer.

Congressman James Sensenbrenner, a Republican, represents the Fifth Congressional District of Wisconsin. He serves as chairman of the House Committee on the Judiciary. The Fifth District of Wisconsin forms an arc surrounding Milwaukee to the North and West, and includes parts of Jefferson, Milwaukee and Waukesha counties, and all of Ozaukee and Washington counties.