The Conservative Case Against the House Medical Malpractice Bill

The Freedom Caucus has put the brakes on a medical malpractice bill in the House of Representatives over concerns about states’ rights.

Mark Meadows
(R-North Carolina)

Freedom Caucus chairman Mark Meadows (R-North Carolina) told Inside Health Policy that the bill (HR 1215) was pulled from a vote last week because of concerns over states’ rights.

According to Joanne Doroshow of the Center for Justice and Democracy, the bill would pre-empt state tort laws, imposing a federally-mandated across the board $250,000 cap on compensation for non-economic injuries – like paralysis and trauma –  which would be mandated in states even where such caps are unconstitutional.

And it would impose a federally-mandated statute of limitations – the time limit for someone to file a meritorious lawsuit – which is more restrictive than a majority of state laws.

The bill barely made it out of the House Judiciary Committee by a vote of 18 to 17.

“Along with every Democrat, Ted Poe (R-Texas) voted against it,” Doroshow said.  “Louie Gohmert (R-Texas) was absent for the vote after saying he’d vote against it. In fact, they did the same last year.”

Right wing doctor groups have also come out against the bill.

Last month, Modern Healthcare ran a piece titled Providers Want Trump to Stay Out of Tort Reform.

“The proposed changes contradict the administration’s earlier promises to reduce broad Washington directives to the states on how malpractice should be governed,” wrote Modern Healthcare’s Virgil Dickson. “Rather than dictate tort reform, the administration should be providing states with increased enforcement flexibility, according to Dr. Jane Orient, an internist and executive director of the Association of American Physicians and Surgeons, a far-right provider group.”

Doroshow says that for “those of us who have been battling Congress in their continuing war with the civil justice system, the Modern Healthcare article and the close House Judiciary vote was only the latest shock this year.”

“Right before a vote on a House bill to obliterate class action lawsuits, the House Liberty Caucus wrote a letter making a strong free-market case against this legislation, calling class actions ‘a market-based solution for addressing widespread breaches of contract, violations of property rights, and infringements of other legal rights.”

“Now, none of this is terribly new conservative economic thinking. In the 1980s, Richard Posner and William Landes supplied a pretty clear free-market economic rationale for the tort system in their book, The Economic Structure of Tort Law. They wrote that the tort system provides deterrence of non cost-justified accidents, and creates economic incentives for ‘allocation of resources to safety.’ It’s just that policymakers paid little or no attention to these arguments before.”







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