Congress is considering legislation aimed at reforming the nation’s medical malpractice laws. It’s a worthy goal, and one that free market proponents have proffered as a key component to driving down healthcare costs.
The Protecting Access to Care Act, recently passed by the U.S. House Judiciary Committee, caps non-economic damages related to healthcare—such as pain and suffering—“provided in whole or in part via a federal program, subsidy or tax benefit.” That description would certainly encompass services under Medicare, Medicaid, Obamacare, and probably tax-advantaged employer-provided insurance as well.
The bill would also limit attorney contingency fees in malpractice cases and introduce statutes of limitations that are more restrictive than those at the state level.
{mosads}One can sympathize with arguments in favor of the bill, which Judiciary Committee Chairman Bob Goodlatte (R-Va.) said will “reduce the costly practice of defensive medicine, and save taxpayers billions of dollars while increasing access to healthcare.” Worthy goals, indeed.
But lost in those good intentions is the way this legislation undercuts principles of federalism, the protection of which is also a long sought-after goal of constitutionalists and the center-right. That goal structurally touches on a variety of issues that have a wide effect on numerous policy areas.
Federalism—as enshrined by the Tenth Amendment—is the power of states and their citizens to regulate and control matters not specifically granted to the U.S. government as enumerated in the Constitution—is a critical and purposeful check and balance on centralized control and a pillar of American greatness and democracy.
Court rulings have affirmed the founders’ ingenious plan to provide states the flexibility to address regional differences and preferences. This diversity and ability to experiment with different approaches advances innovation and excellence.
Healthcare and tort law are two areas that lend themselves to local control. Unlike other products and services offered across state lines, healthcare is by necessity provided where the patient is physically present, at least in all but the narrowest of circumstances. It’s why state and local licensing and regulatory agencies for medical practice operate according to their own rules and procedures.
The same goes for much of the law—attorneys are licensed by and accountable to state bar associations and state court systems, practicing under statutes and rulings deliberated to reflect local realities by sovereign legislative bodies and courts.
While there has been a clamor for years for uniform federal laws and standards for malpractice, it is an area that has been thoroughly addressed by the states. Chairman Goodlatte’s own statement on the Judiciary Committee’s passage of the legislation acknowledges that it is modeled on caps enacted in California – 43 years ago.
Since then, nearly every state has either passed its own malpractice reward caps or deliberately rejected such provisions by legislation, constitutional amendment, or judicial ruling. Some have taken a middle path of establishing caps with exceptions, for example for elder abuse.
While such a landscape can be a challenge, it is indeed the purview of states and their citizens to consider their own circumstances, weigh costs and benefits of various approaches, and make the choices they deem best. Or, if they are wrong, to provide a “teachable moment” for themselves and other states to consider alternatives and ultimately, reach the best answers.
Take, for example, the potential impact of caps and fee limits on Latinos and other minorities. Hispanics make up more than 30 percent of people receiving Medicaid benefits, one of the programs targeted for capped recoveries. Years of studies have found that minorities and those on Medicaid are more likely to receive low-quality care. While not as desirable as prevention of these issues, non-economic damages are one way the legal system can hold providers accountable for their failure to meet acceptable standards. And working Latino families are twice as likely to be low-income, meaning that access to contingency fees can be critical to their ability to bring a suit to address wrongdoing in the first place.
You can argue either side of these positions. Yet they are valid options for states with large minority or lower-income populations to consider in determining what’s right for their jurisdictions. Members of Congress, especially those on congressional judiciary committees, would do right by the Constitution to consider whether the federal government should have the power to override states’ authority to seek these policy options.
Reducing the costs of defensive medicine and malpractice insurance are worthy goals that Congress and the administration should vigorously pursue. But the best long-term solution would be to make sure that it doesn’t further abandon a key component of American exceptionalism that is in dire need of revival.
Mario H. Lopez is president of the Hispanic Leadership Fund, an advocacy organization aimed at promoting liberty, opportunity and prosperity for all Americans.
The views expressed by contributors are their own and are not the views of The Hill.