Medical malpractice tort reform is one of those supposed remedies frequently mentioned as a cure to lowering health care costs. 

Currently being debated is H.R. 5 (most recent mark up here) which would create a federal medical malpractice reform modeled on what has taken place in California, including caps on non-economic and punitive damages and attorneys fees.

Put aside whether you support tort reform and even whether it is effective.  (If you want to know, I have very mixed feelings on the policy.  On the one hand, I am disgusted with the culture of ambulance chasers, something I consider an insult to the people who actually do suffer from malpractice and deserve compensation; so I am very sympathetic for the need to do something.  On the other hand, I am against arbitrary caps which deprive those who need the compensation most.  There has to be a third way between the free-for-all we now have and inflexible caps.)

Professor Michael Dorf of Cornell Law School raises a point — one I have thought about before but never written about — that there is a potential inconsistency between those committed to a limited reach of the Commerce Clause when it comes to the federal health care mandate but not federal medical malpractice reform:

“But there’s also an interesting intra-conservative fight potentially brewing here. Medical malpractice lawsuits, after all, seek damages in tort, an area of law over which states have traditionally exercised sovereignty. Folks like me, who think that Congress has broad latitude to regulate under the Commerce Clause, have no difficulty seeing the package of federal limits as constitutional, even if we don’t think it’s desirable policy. But what about all of those self-styled patriots in tri-corner hats who go on incessantly about how the federal government is a government of enumerated powers and worry about the modern Commerce Clause jurisprudence making the feds omnipotent? Shouldn’t they be worried about this federal government takeover of state tort law? You betcha….

When push comes to shove, most elected officials are fair-weather federalists.  They tend to invoke states’ rights when they dislike the substance of federal policy and to forget about states’ rights when they like the substance of federal policy.  But at least in the short run, it will be interesting to watch the intra-conservative debate on these and other issues.

Is this a fair point?   

If we are against the federal government forcing us to purchase health insurance, shouldn’t we also be against the federal government telling us which state common law remedies we can pursue and on what terms?  Isn’t this a matter for the states?

As pointed out by Dorf, an article in Politico highlights two Republican Congressmen who are raising this very issue:

The House Judiciary Committee probably will be able to approve a medical malpractice reform bill next week, but Republicans are facing one concern from their own side: Don’t mess with Texas.

At the markup Wednesday, two committee Republicans – Ted Poe and Louie Gohmert – raised concerns that the bill might override states’ own limits on medical liability lawsuits. They raised doubts that the federal government has the power to do that under the Commerce Clause, and they want to make sure the bill doesn’t violate states’ rights under the 10th Amendment. 

Unlike the Democrats who oppose the bill – on the grounds that medical lawsuit limits are unfair to the victims of malpractice – Poe and Gohmert aren’t opposed to the idea of tort reform. Poe just wants to make sure Texas gets to keep its own law, which caps “pain and suffering” damages at $250,000, and Gohmert wants to look out for all of the states.

“The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide – not the federal government,” Poe said in a statement after the markup.

I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product.  Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far.

On the other hand, regulating the tort system is not quite the same thing as regulating the health system, although there is a relationship between the two.

Bottom line.  The mandate must go.  There is no reason to give up on the clear-cut issue just because other issues are less clear.

Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I’d be inclined to leave it to the states.  If you don’t like your state’s tort system, do the same thing you would do if you didn’t like its tax or other systems:  Move.

(Please, no “consistency is the hobgobblin of little minds” comments).

Update:  Thanks to commenter Showbiz111 for pointing out that I left the word “foolish” out of the quote in parentheses immediately above, and thereby did not do justice to Emerson’s text:

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day. — ‘Ah, so you shall be sure to be misunderstood.’ — Is it so bad, then, to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood.”

And a reader poll is in order (poll closes at Noon E.S.T. on Monday, February 14):


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