from, I guess it is the British Medical Journal, by the British Medical Association on the general backwardness of U.S. regulations through the Food and Drug Administration with respect to the introduction of new drugs. There was expressed in that article a concern that in Great Britain you might parallel this development in the United States.

As I am sure all of you are aware there are many drugs that have been developed, many by American pharmaceutical firms, that are being used in countries around the world but are still under examination, infinite delay, or rejection because of some of the legislation here. Is that a fair assessment to make, do you think, by most practicing physicians outside of the United States that we have too restrictive legislation with respect to the guidelines that we have provided to our Food and Drug Administration on the subject of approval of new drugs?

Dr. GAMMON. I would like to answer that very shortly. I think most of the people here would be well aware of the thalidomide tragedy in our country and in certain European countries, notably Germany. You didn't have that problem here.

Mr. CRANE. Let me inject one thing on that point. FDA had that under examination and the reason we didn't have it was simply because of the delay in their approval. There were no adverse reactions they had detected at FDA at that time. They have used that as one of their defenses of the excessive regulation by FDA. Don't credit them with prohibiting thalidomide because they knew the adverse consequences.

Dr. GAMMON. No, no, I am aware of that. Certainly I am not normally an advocate of delay but as far as new drugs are concerned, I think on balance you probably have the edge on us. I think there is a great deal to be said for delay in the introduction of new drugs. Dr. MURLEY. Could I answer that one, too, sir?

I think that I am in favor of your great strictness in this connection. I am a mere surgeon, but I do prescribe drugs at times to my patients, and I have had them given to me when I have been sick myself. I believe that we can well afford to be scrupulously careful about introduction of new drugs.

We are, I think, often far too preoccupied with what we believe may be advances, and it would be a great mistake, I believe, to run risks in exposing the public to dangers of drugs which are as yet unproven. With thalidomide, I agree with the interpretation that you have given, but I must point out that none of the animal tests used at the time when that drug was first introduced could have in any way shown up its teratogenic effects-in other words, its damage to a potential fetus and a great deal of rubbish has been talked and attacks have been made on the firm that made that drug.

I have no shares in that firm, I promise you. They have been extraordinarily generous in offering many millions of funds to these unfortunate children. In contrast, not a single doctor hepatitis victim or a relative of those who died as a result of hepatitis acquired in renal transplant units, has ever received 1 penny of compensation from the Government of Great Britain.

There is a very, very stark difference between the way the so-called wicked capitalists behave when situations of this kind occur and the way I am sorry to say that governments sometimes behave. But as to

your question, sir, let's be very careful. I think you are right. One of my brothers-in-law was in fact chairman of the drug control organization in Great Britain until he died, and he, I know, was always a great admirer of the care taken in your country and indeed we partly if not largely copied many of your ideas in this connection. You may be wrong in some of these, I am not really qualified to say, but in general I am sure you are on the right lines.

Mr. CRANE. My time has expired, I realize that, and I thank you. Mr. ROSTENKOWSKI. Mr. Martin?

Mr. MARTIN. Thank you, Mr. Rostenkowski.

I have one general question of the panel.

We have a problem in this country with the increasing frequency and extravagance of malpractice litigation. Punitive damages are sought if surgery or treatment is less than fully successful, especially when the treatment is administered at the site of an accident by a passing good Samaritan who later finds he or she must indeed give all their wordly goods to the one that they had sought to help.

This is apparently not so much a problem in your country, and I think it would be helpful if you could assist us in understanding why. Dr. MURLEY. Who would you like?

Mr. MARTIN. Well, it is a general question.

Dr. STEPHENSON. The situation is different in Canada and in Great Britain. Although we live along the longest undefended border in the world, we in Canada have not experienced the malpractice "infection" to the degree which you have experienced it here. We thank God for that, I can tell you. There are some essential differences that I think are probably responsible for this. Although the Canadian expectation for cure and expectation for remarkable results from any kind of treatment parallel those of the average American citizen and are probably generally equally unrealistic because most of the people in North America have been bombarded and mesmerized by the reports of absolutely fantastic cures which they begin to expect are daily commonplace occurrences, unfortunately human beings don't all respond the same way to treatment and humans are variable in their acceptance of the results which accrue after certain treatments. In spite of that unrealistic patient expectation, which has been one of the causes of problems, I think, in the United States, in Canada there has been a rule within the legal profession that the use of contingency billing in medical malpractice litigation is unethical, We hope that the legal profession in Canada will continue to consider contingency billing unethical. I think this is another of the root causes of your difficulty at the

moment.

In addition, in Canada while a case of malpractice may be heard by a judge and jury, if in fact a jury is selected to hear the case, the jury is given the responsibility of deciding who is at fault and what percentage of fault applies to the physician who has been charged.

The judge, however, is the one who makes the decision about the financial settlement involved.

It has been considered traditional in Canada that a jury of 12 good and true men and women does not have enough experience in economic matters and in judicial matters to make rational decisions regarding the amount of money which should be awarded in the case of malpractice. Therefore, judges have been delegated that responsibility.

As you know, judges are probably less likely to be influenced by the courtroom theatrics of such people as Mr. Belli-who does a marvelous job, I must say-and they have not, in Canada, awarded such large amounts of money to those who have applied for restitution in cases of malpractice.

Mr. MARTIN. As to the absence of high expectations in Canada, does our television not get across your borders? Does Dr. Marcus Welby not practice up there?

Dr. STEPHENSON. In Canada, we share the general level of expectations. This is why we are having increases in litigations. But we haven't reached the epidemic proportions you have here.

Dr. MURLEY. May I tell you, sir, as a practicing surgeon, what I paid for life membership of the Medical Defense Union which is an entirely independent organization which bears all our costs should be sued. I paid in 1939 when I qualified as a doctor, the princely sum of 25 pounds ($70) for life coverage.

Over the years the amount has increased, but all doctors in Britain irrespective of their age and their specialty and their sex, I am glad to say, pay now only 25 pounds per annum, what I paid for life. membership.

The cost is going up gradually, and there is no longer a life membership. That wasn't considered to be a good risk. That is the situation. Now as you know, many physicians in your country are paying sums of $10,000 up to $20,000 per year, and yet ignorant people in my country will sometimes criticize the fees which are charged for medical treatment in this country. You have an inbuilt thing here which is greatly increasing the costs to the patient.

Now, as for contingency billing, we do not allow it in our country, and we do not allow what I call barratry, that pernicious practice of lawyers. I am sure some of you must be lawyers, and let me tell you that I do not mean anything personal by that. It is an unethical thing though for a British lawyer to do.

In our cases, when they do come to court, they come before a high court judge and not a jury. I have only had personal experience of one case where I had to appear as a witness in support of an anesthetist of mine and I was enormously impressed by the scrupulous manner in which an absolutely delightful high court judge listened patiently to the evidence. Unfortunately, perhaps, he did not make the best of decisions at the end but he did not at any rate award the monstrous sums which are sometimes given in this country for the most trivial damage to patients.

I think our patients do well when they do sue. If they have a good case, then the case is often settled out of court. I think a lot get settled out of court but I believe the patient gets a very fair deal.

I think the doctor does, too, sir.

Mr. LEJEUNE. I am not a lawyer and not a doctor and I absolutely agree that the discrepancy is not in the medical profession but in the legal profession, mainly because the British people historically are not as litigious as yours.

Dr. LOFSTEAD. This is the case in Sweden, too. We pay zero dollars for malpractice insurance. The Swedish system is based on a medical appeals board attached to the National Board of Health and Welfare. This board is investigating and so on complaints of malpractice on the

part of medical personnel. Particularly though I would draw attention to Swedish hospitals, and this was the precedent in St. Mary's Hospital in Stockholm quite a number of years ago when a resident there did not tell his chief about an error committed by one of his colleagues. He was punished for this and since then it is written into the law any doctor in the hospital that sees a malpractice or any neglect done, he is liable, he must report it.

The number of complaints to this medical appeals board is quite low, I think in Sweden, by international comparison and this is for the benefit of all. This is no problem, sir.

Dr. STEPHENSON. Mr. Chairman, if I might, I neglected to tell Mr. Martin in answer to his question that in fact we in Canada have a funding mechanism for a physician malpractice which is somewhat similar to that in Britain but there is some commercial insurance as well. Commercial insurance does not provide the bulk of malpractice protection for physicians in Canada. To give you an idea of the rate of increase of litigation-and it does spread slowly and insidiously I think—when I began practice, about 25 years ago, the yearly annual rate of payment to the fund, which is called the Medical Protective Association, and which is funded entirely by the physicians of Canada was $15 a year. Next year it will be $200 a year.

Mr. ROSTENKOWSKI. If there are no further questions

Mr. CRANE. Could I, just one moment?

Just one more question-if my colleague will yield-to Dr. Stephenson.

Do you think there would be a salutary effect if Dr. Welby was sued for malpractice in at least one of those programs?

Dr. STEPHENSON. I am not sure, sir, as a matter of fact. One of the problems would be that he would spend yet another whole day or week or month dealing with that problem alone and no other. That is the major difficulty with Marcus Welby, M.D. Mind you, he is my favorite physician, but he gives a very mistaken impression about the life of the ordinary physician in North America.

My colleagues from Great Britain don't have this problem.
Mr. ROSTENKOWSKI. If there are no further questions-

Dr. GAMMON. I wonder if I could add a short supplement to the answer I gave to Mr. Crane over this question of the drug testing. I wouldn't like it to be felt that in my opinion that the system that you employ over here is completely faultless.

I don't know a great deal about it. But I also understand the problem over the efficacy testing does add considerable delays. These may be necessary or they may not. But it certainly does seem that there are considerable additions to costs involved. I can give one particular instance that I know of because it involves something used in our own country. One of our orthopedic surgeons has been for many years using a glue for fixing artificial hip joints, and this wasn't brought in to the United States for a very, very long while and I understand that even now there is some problem with the smell of the glue that is cansing delay.

So what I really want to get over is that there may be some problems in your system that need straightening out, but to err on the side of caution must be right.

Mr. ROSTENOWSKI. If there are no further comments on the part of the majority that isn't too well represented here this morning, I want

to thank you very much for having come this distance to give us the benefit of your observations. I am certain that we will study your comments and your observations in great detail.

On behalf of the Subcommittee on Health and the staff I would like to thank you very much for your contributions.

If the next panel would prepare to take the witness table, we would proceed.

We have Dr. Burkhart, Dr. Hamilton, Dr. Lymberis, Dr. McGill, Dr. Masland, Dr. Masters, and Dr. Quinlan.

Good afternoon, gentlemen, and welcome to the Subcommittee on Health of the Ways and Means Committee.

You have seen the format that we use. I have noted some of the statements that have been prepared and presented to the committee are quite lengthy. If any one of you would like to summarize as opposed to reading your entire statement, that certainly would be in order. We will use the same format. I suggest you use no longer than 15 minutes in the presentation and if you want to cut that down, that is entirely up to you.

The opportunity will be afforded you for panel discussion and then opened up for questions.

A PANEL CONSISTING OF JOHN H. BURKHART, M.D., KNOXVILLE, TENN.; JOHN HAMILTON, M.D., ROCHESTER, N.Y.; MARVIN N. LYMBERIS, M.D., CHARLOTTE, N.C.; CLINTON S. MCGILL, M.D., PORTLAND, OREG.; DAVID S. MASLAND, M.D., CARLISLE, PA.; BROOKER L. MASTERS, M.D., FREMONT, MICH.; AND DONALD QUINLAN, M.D., NORTHFIELD, ILL.

Mr. ROSTENKOWSKI. Dr. Burkhart, I believe you are first. If you would like to begin, welcome.

STATEMENT OF JOHN H. BURKHART, M.D.

Dr. BURKHART. Thank you, Mr. Chairman.

Mr. Chairman and members of the committee, I am Dr. John H. Burkhart of Knoxville, Tenn., and I appreciate the opportunity to testify before you today. I assure you I will take no longer than the 15 minutes allotted to us.

You have been and will continue to be deluged with statistics, facts, and studies purported to demonstrate and prove either that there is a health care crisis in this country or that there is not, that some form of national health insurance is a necessity or that it is the worst thing that could happen to the American people, depending on who or what interest group utilizes various parameters to make their points.

I would prefer in the time allotted to me to offer an opinion based not so much on cold statistical numbers or surveys, but more on some 26 years of experience, knowledge, and attitudes acquired as a solo family physician engaged in administering medical care, advice, and treatment to a wide variety of individuals who have sought my services. I still consider myself a doctor, not just a provider, and those who come to me as patients, not just consumers.

To establish some basic precepts, let me first register what I presently believe. I believe that the vast majority, in fact virtually all