Opinion

Medical Malpractice “Reform”: Encroachment On Essential Liberties

There is a surprising development brewing in the Nation’s Capital as conservatives and libertarian groups—including 60 Plus, who I represent –  are voicing problems with legislation being pushed forward through Congress by House Republican leaders that, among other provisions, establishes “federal caps” on damages in malpractice suits.

Wait a moment, you might say.  Aren’t conservatives supposed to favor limitations on runaway jury awards and other efforts to rein in out of control Courts?   Yes!   But there is a foundational Constitutional principle that lies at the heart of conservative opposition to the bill:  federalism.

The problem with the Protecting Access to Care Act of 2017 is straightforward:  it advances the disturbing trend toward the “federalization” of State tort law.  It strikes the wrong balance between the Federal Government and the States.

Put aside the merits of this bill for a moment.  No one can pretend that –especially in the more than four decades since California enacted its own cap on awards—the States have not spoken to the malpractice issue.

More than 30 States already have some form of cap on damages in such litigation, while 18 others bar such restrictions on awards either by Constitutional provision or via State Courts holding them unconstitutional.

Do the math, and you recognize that any federal legislation involves Congress second-guessing the 10th amendment rights of governments and health-care systems of almost every State in the Union.  Another calculation of impacted citizens shows the need to be especially sensitive to the 60 Plus folks and babyboomers, since it is they who are disproportionately impacted by undue encroachments.

Republicans did not like it a bit when President Barack Obama federalized health care with an avalanche of mandates, regulations, taxes and penalties.  Turnabout is not fair play.  There is nothing in the Constitution that says it is better to replace unnecessary Democratic mandates with Republican ones, no matter the seeming benefits.

Realistically, the diversity of approach among the States in malpractice law—though it may be viewed as inconvenient by House members of Congress, legal purists and special interests – was a distinct feature, not a bug , of our Constitutional system of federalism which includes, Senators, Governors, and corresponding legislatures.  The challenge for every generation is to strike the right balance.

As puzzling as it may seem, the possibility of diametrically opposite perspectives on the same issue by various States is a result the Founders intended.

First, it ensures the ability of sovereign units of government to serve as “laboratories of democracy”, as classically formulated by U.S. Supreme Court Justice Louis Brandeis.   As independent “laboratories,” the States allow our Nation to test the outcome of various policies.

In addition, overriding State Constitutional provisions and interpretation denies States and their citizen’s vital liberty— the choice as to the systems of government and the laws under which they prefer to live.

The Federal system also represents an important check and balance on the power of the National government: the ability of the people and the States to protect their interests by keeping government and the settlement of legal disputes closer to them where they can be more closely monitored and held accountable.

Worth noting—and highly unusual—is that the House Judiciary Committee, in marking up the legislation, specifically rejected an amendment which would bar pre-emption of State Constitutional provisions.

Finally, undue federalization of State law snuffs out the spirit of innovation and distinct regional strengths that make up the fabric and are at the heart of American greatness.

We urge Members of Congress to reject the proposed encroachment on the rights and prerogatives of States and their citizens embodied in H.R. 1215 as it comes before the full House.

Protests by conservatives against the malpractice “reform” legislation may be another of those constant Washington surprises, but the quiet but steady trend of unnecessarily federalizing State law—for whatever seemingly good purpose, need not and should not be a surprise.

James Madison, a central architect to our Constitution, and the author of the bill of rights, warned: “Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations.”

Conservative and liberals alike, indeed all Americans, need to stand fast against the “gradual and silent encroachments” in the Protecting Access to Care Act of 2017.  In doing so, they will protect the access of States and their citizens to precious freedoms and indispensable checks on those in power in Washington.

Jim Martin is the Chairman of 60 Plus Association, which has over 7.2 million citizen lobbyists nationally and lobbies Congress on public policy issues of concern to senior citizens.