3:05 PM EST
Patrick J. Leahy, D-VT

Mr. LEAHY. Mr. President, I thank the senior Senator from Montana.

AMENDMENT NO. 2927

Mr. President, let me wear my hat as chairman of the Senate Judiciary Committee and talk about the amendment we are going to vote on to cap attorney fees. It is a one-sided amendment. It does not hurt attorneys. It hurts injured Americans who seek to recover damages in our court system. It may not be obvious to the nonlawyers listening to this debate that many ordinary Americans who suffer an injury through another's negligence cannot afford to pay for the legal representation they need to go

to court.

Our legal system allows for a plaintiff and an attorney to negotiate to determine what the compensation is going to be. In these cases, the parties sign a contract where the attorney may agree to work on a case with no compensation at all unless the victim ultimately receives compensation from the doctor or hospital responsible for the injury. This is called a contingency fee. In other words, a judge and a jury have to agree that person was injured and deserves this compensation. The parties

do not do that. This allows all Americans, not just the wealthy, to have their day in court.

It should also be noted that if a judge believes a compensation agreement is unfair to the victim, or if they believe it is disproportionate, the judge has the power to reduce the fee. I believe this is the same in virtually every State in this country. States have regulated the area of attorney compensation extensively, striving for reasonableness. States have done this. Doesn't that make the most sense that the States decide?

Let's not forget that lawyers only are compensated if the client's case is successful and if a jury finds that a wrong was committed and if that jury finds they should be compensated. This is not some kind of windfall. It is the result of an attorney's very hard work to redress a wrong.

The pending amendment would override all of these traditional considerations. It would impose a flat cap on all attorney fees for significant injuries. But the amendment would not cap the attorney fees of those representing a negligent hospital or doctor. That hospital, those doctors--their insurance companies could pay any amount of money they wanted, for example, in the case--and there have been cases like this--where the wrong leg was amputated by mistake or a person was given the wrong medicine

and they end up paralyzed.

But this amendment says, if that person who was paralyzed wants to sue, we are going to cap the amount of compensation that could be possibly paid to their attorney. But for the person who wants to escape liability for giving the wrong medicine that paralyzed a patient--their insurance companies, their hospitals--they can pay all however much they want for attorneys. They can pay their own counsel 10 times what a plaintiff's attorney might get in their effort to prevent a hospital or doctor from

being held liable for that horrible mistake.

Trust me, this gives a defendant every incentive to prolong litigation. Why should they settle? Why should they admit wrongdoing? They have the deep pockets. Yet through this amendment, a plaintiff would be limited by the actions of the Senate--made up of 100 people who can afford a lawyer, unlike many of the people who are injured? And so are we going to say that the Senate has capped what a plaintiff's lawyer can get? By the way--wink, wink, nudge, nudge--if you are the hospital, the insurance

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for a doctor or somebody who has done a grievous wrong, just keep this thing rolling long enough because you have the money and you can just beat it down.

When a patient receives more than $150,000 in medical expenses or compensatory or other damages, it is because the injury is severe and ongoing or because it resulted in death. Those patients are going to have a tougher time finding someone to hold the person who harmed them accountable. Adding this insult to injury does not further the laudable goals of the pending health care bill. We should be increasing patient safety and health, not punishing those who have already been injured by wrongdoing.

I understand that yesterday the junior Senator from Nevada identified several prominent Democrats as having supported a similar amendment offered by Senator Kennedy a decade ago in a Republican-controlled Senate. I am not surprised by this tactic, given the disappointing tenor of the debate. Of course, upon a review of the actual vote, anyone would see that several Senators in this Chamber, including this one, opposed a motion to table Senator Kennedy's amendment. That is hardly the same as advocating

a cap on fees.

It is also worth noting that in 1995, the Senate was considering a draconian products liability bill, not a health care bill. At that time, the then-Republican majority was attempting to go further than any other Congress in history to prevent injured Americans from recovering damages from the corporations that hurt them or their children.

I am relieved that legislation in 1995 never became law. I can see why some might have wished it had. Maybe they knew what was going to come because after that, what came to light were many recent incidents of harmful products that had been introduced into commerce--many of them toys for little children--and nothing could have been done about it had that bill become law. If that bill had become law, I fear we would have seen many more deaths or serious injuries among children as a result of faulty

products.

I find it ironic, given the often-professed loyalty to the sovereignty of the States and the sanctity of private contracts, many on the other side of the aisle now seem to have no concerns about the vast Federal intrusion into these areas of traditional State control that this and other medical malpractice reform proposals represent.

Basically they are saying: Oh, we are all for States rights and sovereignty of the States except when it may cost some of the big insurance companies some money. We are all in favor of the sanctity of private contracts--except when it may cost some of the big insurance companies some money.

So I am going to oppose the amendment offered by Senator Ensign. It is unfair. It will only hurt Americans who have already been injured by making it more difficult for them to gain access to our court system.

I yield the floor.