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In his State of the Union speech, President Obama indicated his support for some type of federal law limiting lawsuits for medical malpractice. And this week, House Republicans introduced H.R. 5, officially titled the "Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011," which is identical to a bill passed by the House GOP in 2005. The bill has three main features:

 

1) It contains a $250,000 cap on non-economic damages (more restrictive in its design than any cap enacted by any state) and stringent limits on attorney's fees;
2) It applies not only to medical malpractice claims, but also to drug and device cases, nursing home cases, and claims against the insurance industry; and
3) The bill preempts state laws that provide additional protections to patients.

 

I'm disapppointed that the President and the sponsors of H.R. 5 have targeted this sector of the Constitutionally protected civil justice system for a federal takeover. When Pres. Obama raised it during the SOTU, conservative commentator Ramesh Ponnuru immediately called it "one of the Republicans' crummiest ideas" and added, "There's no need for a federal takeover of medical-malpractice rules." EXACTLY. But apparently the President and senior members of the GOP (the party of "limited government") now aim to limit your 7th Amendment right by using a government mandate, exactly what the GOP opposes in ObamaCare. Bizarre.

 

Unfortunately, the bill breaks the House Republicans' promise to "stick with the Constitution": it enhances the power of the federal judiciary and Executive Branch over the rights of average Americans; it won't stop medical malpractice; and it attacks rising health care costs with the wrong solution. The bill provides a marker for the differences between the too-business-friendly Republican establishment (the "K Street Republicans" and "Blue Bloods") who dominate Washington, and the Tea Party-oriented, limited-government Americans of all parties (the "Main Street Republicans" and "Blue Collars") who swept the Republican Party into the House majority in the last election. Since last June, I have been posting at my website, "The 7th Amendment Advocate," on the history and nature of our Constitutionally protected and unalienable right to file civil suits, and the dangers to our rights. More recently, I've written on the relationship between the 7th Amendment, its Constitutional "uncle," the 10th Amendment, and two clauses in the Constitution which are abused simultaneously by President Obama and anti-Obama, anti-7th Amendment Republicans. This bill is the first real test of the fidelity of the Republican Party and Tea Party groups to the Constitution's strict limits on federal power and to the promotion of individual and states' rights in the Bill of Rights.

 

Here are a set of reasons why Tea Partiers, Constitutional conservatives, Main Street Republicans and Blue Collars should vigorously oppose H.R. 5 and any federal law limiting medical malpractice lawsuits:

 

1. The Constitutional basis for medical malpractice tort reform is also the basis for ObamaCare, and both violate the 10th Amendment's protections of states' rights. When he introduced H.R. 5, Rep. Phil Gingrey cited the language of the Commerce Clause: of the Constitution. I wrote about the abuse of the Commerce Clause of the Constitution in separate posts on December 6, on December 14, and on January 4. Simply put, the pro-medmal-reform and pro-ObamaCare forces depend on the theory that the Commerce Clause trumps the protection of individual and states' rights in the Bill of Rights. That's a formula for a slide into dictatorship. And as I wrote on December 6, Founding Father George Mason foresaw the holes in the Constitution and argued against ratification of the Constitution without a Bill of Rights.

 

2. A better name for any such bill is the "Abortion Butchers & Sexual Abusers Civil Immunity Act of 2011." If enacted, doctors who kill babies and their mothers (see the Gosnell case) could leave jail after their sentence is up, then stop by the bank to pick up their blood money and start over. Why would a pro-lifer (like me) ever want to limit the amount of money an abortion victim could take from killers and butchers in a civil suit?! And it even protects doctors who commit intentional torts, such as sexual abuse! The broad scope of H.R. 5 also protects bad drug and device companies which have been criminally prosecuted.

 

3. The bill does nothing to stop medical malpractice, which kills up to 100,000 Americans annually and injures up to ten times .... The bill doesn't improve hospital hygiene, medical records technology, or any other medical practice. Medical malpractice lawsuits can't exist if there's little or no medical malpractice.

 

4. We have a medical malpractice crisis, but not a medical liability crisis. The number of medical malpractice claims has been headed down - yes, DOWN - for years, down 15 percent from 1999 to 2008. The insurance industry's own data reveals that the amount they've paid out for malpractice claims dropped by over 40% between 2002 and 2008, when adjusted for inflation. H.R. 5 is like fixing a flat tire by emptying the radiator. It misses the point and attacks a non-problem.

 

5. This bill would increase government spending, because those unable to hold wrongdoers accountable will become dependent on Medicare and Medicaid for payment of their medical costs. The taxpayers will be forced to pay for incompetent doctors and for drugmakers' and medical device manufacturers' faulty products.

 

6. Why would the GOP immunize industry groups which endorsed ObamaCare and enabled its enactment? The AMA and Big Pharma gave us ObamaCare's unconstitutional mandate, budget-busting spending hikes, and huge tax increases. THANKS FOR NOTHING.

 

 7. Medical malpractice today, religious liberty and gun rights tomorrow? There is no differentiation regarding medical malpractice lawsuits under the Constitution. This would be the same as capping damages in suits against schools firing Christian professors or limiting the size of gun clips.

 

8. The Founding Fathers were never for tort reform. Back in September, I offered to buy the best dinner in Washington to anyone to shows me just ONE pro-tort reform quote by any Founding Father. I've had no takers and I'm not worried, because none of them proposed limiting our 7th Amendment rights.

 

To the contrary, the Founding Fathers endorsed and protected the "unalienable right" that a citizen could bring civil claims to a local court of law, before a jury of peers. That right had been expressly recognized in British law for centuries, back to the signing of the Magna Carta in 1215. The posts linked in the right sidebar on this site's homepage provide ample proof that the Founding Fathers were for civil suits and for the lawyers who bring them, period.

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Comment by Douglas John Howard on February 8, 2011 at 4:22am
Our Right were Granted by our Creator.
Comment by Douglas John Howard on February 8, 2011 at 4:20am

Phil,

The problem here is that the limits directly affect recovery for the actual damages suffered.

Where the reform is needed is in the punitive damages and fees charged end.

Medical practitioners should be held fully liable for the actual damages they cause. And patients, victims, should be allowed to recover as fully as is possible without being caused economic harm. 

Where reform is needed is in the amounts of the Awards that are granted beyond the actual damages suffered and the fees charged.

There, I can agree with a strictly monetary award limitation such as that proposed.

And, like to see total fees chargeable limited to the scope of, and based wholly upon, a single individual's award amount granted.

I.E.: A single Class Action Suit with 100 thousand individuals being awarded $10.00 each does not net the Attorney, or Law Firm, 15 - 33% of the gross $1 Million amount of the total award ($150,000.00 - $330,000.00), but rather 15 - 33% of a single $10.00 award ($1.50 - $3.30).

 

Consider this.

 

With a population of over 300 million, if only one person out of a hundred is adversely impacted by something you have a case with over 3 million clients. If each one suffered one single dollar in damages, this amounts to $3 million dollars in cumulative damages. A third of that total is over $1 Million for the Law Firm and virtually nothing for those who actually were impacted, either as a loss or as an award.

$2 for one in one thousand is still over 300 thousand clients and results in a gross pay out of more than $600,000.00 with a fee amounting to about $200,000.00.

This is where the problem is and where the reform is needed.

 

By the way Andrew, I disagree with your premise that the Constitution Grants Rights.

The Constitution of the United States Guarantees Protections for U.S. Citizens against abuse by the U.S. Government ONLY!

Our Rights were

Comment by Andrew Cochran on January 31, 2011 at 2:35pm
Former Senator Fred Thompson disagrees with you and agrees with me, read this: http://bit.ly/f5ExQC

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