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.