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June 13, 2017

Tort Reform or Constitutional Malpractice?


Spurious lawsuits, backlogged courtrooms and unhinged jury awards make everything more expensive than necessary by adding unquantifiable risk and windfall losses to every profession. Because current U.S. law omits crucial balancing factors like “loser pays” (the English Rule), there is little risk to filing a spurious or low-risk\high-reward lawsuit, and there is little incentive for juries to resist delivering the largest award possible.

That’s why most observers have long recognized the need for tort reform, but with a few exceptions, the trial lawyers who profit from our skewed system have been able to stave off tort reform through heavy political donations to (mostly) Democrat politicians. Some Republican-leaning states, like Texas, have enacted significant tort reform at the state level, but it’s generally been an uphill battle.

Perhaps no area of the economy is more harmed by out-of-control lawsuits than the healthcare industry. Even doctors with excellent reputations pay enormous premiums for malpractice insurance because of the frequency of successful lawsuits and enormous awards by sympathetic juries. We all pay for the costs of these lawsuits, because the costs are passed along to patients embedded in the fees we pay for medical services.

But while we recognize the need for tort reform, we also recognize the tremendous harm that has been done over time by the federalization of matters that are properly the concern of the states, and this is where Representative Steve King (R-IA) goes off the rails with his H.R. 1215, the “Protecting Access to Care Act.”

Most laws affecting medical malpractice are state, rather than federal, but Representative King’s bill would obliterate these state laws, including even state constitutional provisions. In attempting to solve a problem, King would impose a federal, top-down pre-emption upon the states, which is a violation of federalism and another example of the over-federalization of law and justice, which constitutionalists would normally oppose in every other area of policy.

Normally, conservatives are quick to criticize how Democrats tend to try to solve every problem by empowering the federal government and trampling over Tenth Amendment limitations on federal power. That’s why it’s disappointing that Representative King seems oblivious to his deeply troubling approach to tort reform. Good intentions are not enough—more than once the federal government has expanded its powers in the name of good intentions. Conservatives seek to solve policy problems while respecting constitutional limits on federal power, not by ignoring them. That’s why a number of conservative groups, including IPI, have expressed severe reservations with Representative King’s proposal.

To be clear: We are enthusiastic supporters of tort reform. But we’re even bigger fans of limited government and the wide berth given to states by the Ninth and Tenth Amendments, and expect Republicans in Congress to respect the Constitution in the course of trying to reduce unnecessary health care costs.


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