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    If You Hate The Health Care Mandate, How Can You Love Federal Tort Reform?

    If You Hate The Health Care Mandate, How Can You Love Federal Tort Reform?

    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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    This book I read recently by Deane Waldman, “Uproot U.S. Healthcare” shows how and why tort reform won’t work. It also suggests a way to make medical malpractice work. Thought I'd share!

    a sampling of these comments demonstrates very clearly:… a little information is a dangerous thing, and fosters unlimited misunderstanding…

    contingency fees: these are designed to allow the poor who cannot pay hourly fees equal access to the court house just the same as the big corporation which pays its lawyers $500+/hour plus expenses win or lose

    DINORightMarie said: "As it is, many of the "ambulance chasers" go for the money, and get paid regardless of – or as a percentage of – the outcome."

    FALSE; if the contingent lawyer loses the case, they eat all the expenses and get NO fee, period, thus the myth of "frivolous lawsuits" is just that; no lawyer can risk $100,000 of expenses on a case they know to be w/o merit, or at least you can't do it more than once and stay in business; besided, do you REALLY think the insurance company lawyer is not smart enough to defeat a bogus case ???

    retire05 commented about pain and suffering, and the "McDonald's" case

    pain and suffering are intangible harms and losses, but are real; if my negligence forces you to sit in a wheel chair, or have 24/7 pain the rest of my life, who can say you are not damaged? however, arbitrary "caps" on such damages such as $250,000 degrade the value and sanctity of life and independence; who would agree to be paralyzed for 50 years at $5,000/yr ??

    McDonalds: get your facts before you voice "opinions"; she was NOT driving; she did not win "millions"; her 3rd degree burns on her genitalia requiring skin graft surgery was valued at $200,000, and the jury assessed 20% of the blame against HER for her own share of personal responsibility, which reduced her share to $160,000, only a small portion of which McDonalds eventually paid after several years of appeals; she originally offered to settle for $20,000, but McDonalds refused to settle, just as they did the other 700+ injury claims figuring it was easier to burn people and make them fight than to fix the problem; McDonalds intentionally jacked with their coffee machines to raise the temperature to 190 degrees instead of the industry standard of 160 degrees, knowing it would burn skin in seconds just because they had cheap coffee and it tastes better hot; McD's could have bought better coffee, but that would cost money…you should take moment and search youtube for the documentary: "hot coffee; the movie"

    bottom line: the framers of our Constitution added the 7th amendment telling us that the right to trial by jury, not a legislature, "shall remain inviolate", what about that has changed ?? a jury is a group of average people who have listened to ALL the evidence, from both sides, in a fair contest, then they deliberate and come up with a collective decision; none of us can accurately assess a case w/in a few seconds of reading a headline or hearing a sound bite as well and with the same accuracy as a group of diverse citizens hearing days or weeks of detailed testimony subjected to the best cross examination to ferret out the truth

    anyone else is simply reaching opinions w/o adequate information and facts

    go get educated before you "open your mouth and remove all doubt"


    david ransin


    if you really want to put all plaintiff injury lawyers completely out of business, instead of tort 'reform', put all this effort and money into making hospitals safer; if no one is injured or killed, there would be no basis to file any claim;

    you should read the book: "why hospitals should fly" which chronicles how the airline industry fixed itself w/o interference by the gov't and no trampling of constitutional rights

    also research: Headline: "2010 marks another year with no U.S. airline fatalities"

    POINT: Yes, it IS possible to save lives and TOTALLY avoid any deaths ….. for 700 million people (including ONLY 14 serious injuries) WITHOUT:

    -tort "reform"
    -caps on damages
    -federal legislation usurping states' rights
    -changing the constitution
    -restrictions on the right to a jury trial
    -artificial rules about what is billed and what is paid
    -interferring between people and their providers
    -putting providers out of business
    -driving providers out of your state
    -raising consumer costs to prohibitive levels
    -restricting fair trade

    thanks, david.

    Yes, I think it's a matter for the states. The problem with that, as with much of what goes on in crazy states, is that it ends up costing us all because there is no restriction to how much federal tax money gets funneled to states that are irresponsible and reckless (and even, actually, to those that aren't). I'm tired of paying for California's stupidity and for airports in Nevada and for every other stupid thing that different states suddenly need federal money for (teapot museums, studies of drunk college kids, armadillo underpasses, and who knows what else). If states are going to be responsible for these things, then the federal income tax needs to be changed, along with the appropriations of federal tax money, to recognize state responsibility. That's where we run into problems, again, because some states are less populated, less wealthy, etc., so they can't possibly be expected to build their own roads, maintain their own bridges, or pay for myriad medical tests that are run only and solely so that doctors don't get sued down the road for missing a brain tumor when their patient came in with a bunion on their big toe. And let's not forget that doctors also need to pay those gigantic malpractice premiums to ensure that they aren't sued into bankruptcy, so that gets tacked on to all of our medical costs, including our insurance and taxes (because not only are we already footing the bill for illegals, but we are also already paying for the poor's health care via MedicAid and have been for decades. That's what gets me about the leftists bizarre insistence that don't want people to have health care, clearly we do; we just don't want the government running it.).

    Got off-topic there, but it's complicated. Tort reform is needed, but at what level? The state? Sure, but what good is that if the feds just send taxpayer money to the states that don't implement tort reform? None. We'll all have to pay, anyway, no matter how responsible or wise our state is.

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