Constitutional Malpractice

The Washington Times (Washington, DC), April 2, 2003 | Go to article overview

Constitutional Malpractice


Byline: Robert A. Levy, SPECIAL TO THE WASHINGTON TIMES

Legislation that caps medical malpractice awards and limits attorney fees cleared the House 229-196 on March 13. That's the seventh malpractice "reform" since Republicans took over the House in 1995. They can expect rougher going in the Senate. Meanwhile, the hypocrisy on both sides of the aisle was thick enough to slice.

Democrats professed their abiding faith in federalism. Never mind that those same Democrats were apoplectic when the Supreme Court held in 1995 that federal power is not plenary: States were perfectly capable of prosecuting the possession of guns near schools (United States vs. Lopez). Five years later, the court held that victims of gender-motivated violence could not sue their alleged assailants under federal law (United States vs. Morrison). Predictably, both baby steps to rein in federal authority were met by caterwauling from the Democratic left.

But medical malpractice is different, says Rep. Melvin Watt. North Carolina Democrat. "It should be about setting a public policy framework that the Founding Fathers set up. And for the life of me, I can't figure out what the federal nexus is." Amen to that. Even newly minted Democratic federalists are better than no federalists at all. And surely the Democrats would be joined by Republicans eager to reaffirm the GOP's traditional respect for state sovereignty as a check on overweening federal power.

Well, no, actually the Republicans had a change of heart. Senate Majority Leader Bill Frist, Tennessee Republican, insists that "we, at the federal level, absolutely must respond." Rep. Tom Feeney, Florida Republican, claims to have "wrestled with the issue" of federal damage caps but decided they were necessary despite more than two centuries of state control over virtually all tort and contract litigation. After all, said Mr. Feeney, it would be unfair if doctors, concerned about malpractice insurance premiums, denied treatment to Florida constituents. How's that for an enduring constitutional principle?

No doubt, Mr. Feeney is correct when he explains that outlandish jury verdicts can drive up insurance premiums and may cause doctors to curtail services. And no doubt that scene could unfold in more than one state perhaps threatening a malpractice mess nationwide. But not every national problem is a federal problem. State legislators, courts, medical practitioners, and their patients are not powerless. More than three-dozen states have passed damage caps. All 50 states have passed, or are considering, various tort reform proposals. Doctors have a final remedy when state courts permit abusive lawsuits. …

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