Tuesday, March 20, 2012

Medical Malpractice Tort Reform Opponents Make For Strange Bedfellows

Congress is currently debating (again, for the umpteenth time) a bill that would "federalize" medical malpractice law and impose a one size fits all cap of $250,000 for patients who are injured or maimed due to a physician's or hospital's negligence. We trial lawyers have always opposed caps because they shred the 7th Amendment of The U.S. Constitution's right to trial by jury by stripping the jury's right to determine malpractice victims' damages and losses on a case by case basis. What's more, they violate an injured patient's right to due process of law under the 14th Amendment.

But these stalwarts of The Constitution are mere "technicalities" for most Republicans pushing for the bill at the bidding of the medical and insurance industry and The Chamber Of Commerce (most Democrats oppose it). These pols and their lobbying groups apparently liken The Constitution to a trip to the buffet, where they are free to "pick" the constitutional entrees they like, i.e. the 2nd Amendment right to bear arms (think steak or prime rib) and bypass some of those nasty side dishes like trial by jury and due process (think lima beans, or the cottage cheese at the salad station that you discover was inadvertantly infused with purple beet juice--ick).

That's why it was suprising and somewhat refreshing to learn that many conservatives are vehemently opposing this legislation. Who might you ask? No other than many Tea Party groups and The Heritage Foundation.

This from The Heritage Foundation:

The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.

And this from the Tea Party Nation founder Judson Phillips:

The 10th Amendment means what it says. It is not a campaign slogan that we throw out when it is convenient and ignore the rest of the time. The 10th Amendment is one of the best defenses we have against tyranny.

We supported Republicans in 2010 because we believed them. We did not elect them because we thought they were hypocrites.

We in the Tea Party do not insist in ideological purity but we insist that the candidates we support, support the Constitution. That means all of it.

Not just the parts we find convenient.

Almost three years ago I argued that any attempt to nationalize medical malpractice laws not only wouldn't lower health care costs, but was blatant socialism.

I'm pretty sure that socialism and "a la carte constitutionalism" are ideas these conservative groups could probably relate to. They deserve credit for pointing out the incongruity of the mixed message of rejecting ObamaCare and "federalizing" malpractice laws at the same time.


Tony Francis said...

Hi Brian. Interesting post with some good information and perspective. I am going to write about this on my blog, The Verdict Is In on WebMD/Mescape. I will put a link to this article if I use it. Thanks.

Tony Francis said...

Hi Brian. Interesting post with some good information and perspective. I am going to write about this on my blog, The Verdict Is In on WebMD/Mescape. I will put a link to this article if I use it. Thanks.

Tony Francis said...

I am still intrigued by this. Wouldn't 14th Amendment really just be the 5th Amendment due process right?

My understanding is SCOTUS has been loathe to expand the meaning of the 14th Amendment. Just a thought.

And I wanted to click the box so I get e-mail alerts on this post!

Brian said...

Thanks for the insightful comments. As I recall, the Due Process Clause of The 14th Amendment has historically been the major bridge to establishing certain "fundamental rights" that if recognized, require a "strict scrutiny" test to withstand constitutional muster. Not sure what the Roberts court has done with it, but my guess is that it would continue to hold an expansive view of it for property/business rights. As to individual rights, I am not so optimistic or even sure that they care about those (remember their recent decision upholding 2 full cavity strip searches for a guy wrongly arrested over some traffic citation???) But apparently corporations are "people" who now enjoy the right to donate gazillions to secret PACS, etc. Sigh....

Tony Francis said...

Hi Brian - I we recently covered the 14th Amendment on "The Verdict Is In" Medscape blog concerning the constitutional right to practice medicine. I didn't know much about the Amendment, however the line of cases weren't too encouraging as far as doctors are concerned. Yes, a citizen of the US has a right to practice medicine, but the state is given wide latitude to regulate that practice, and SCOTUS has never been too enthusiastic to expand individual rights under the 14th amendment (or the 5th Amendment, for that matter). This would be in matters concerning licensing, or denying a qualified doctor the right to practice in a given hospital - that sort of thing.

Concerning the "corporations are people" issue - don't worry about it. If money could buy votes, Newt Gingrich would be President.