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Medical malpractice reform passes House

H.R. 5 passes the House on a largely partisan vote. Since the bill will die in the Senate, and would not have survived an inevitable Obama veto, it's hard to imagine why people have been so worked up about it. [Overlawyered; House Rules Committee]

Case in point: Patricia Moore of the Civ Procedure Prof Blog and St. Thomas Law School, not only has to use scare quotes in discussing tort reform, but makes the astonishing claim "And if you keep repeating over and over that damages caps lower malpractice premiums, maybe it will someday be true despite all empirical evidence to the contrary." Moore is entitled to her own opinion, but not to her own facts. It's unquestionable that damages caps reduce malpractice premiums. It's beyond silly to claim otherwise: If caps don't reduce the amount insurers pay out for malpractice, why does the litigation lobby spend so much time and money opposing them?

I've questioned the utility of federalizing medical malpractice: if Republicans want to claim that PPACA is unconstitutional, it makes sense to leave medical malpractice, a local market and a local issue unlike the national problem of product liability, to the states. If Pennsylvania wants to drive all of its doctors to Texas because it would rather make its lawyers rich, that's what competitive federalism is all about. (In contrast, if West Virginia wants to expropriate the gains of interstate commerce through product liability laws that punish out-of-state defendants, Congress and the courts should be stepping in: such state abuse is exactly why we don't have an Articles of Confederation any more.) Rep. Broun proposed an unsuccessful amendment to the bill that would have adopted one of my suggestions: reduce federal expenditures by creating caps on medical procedures reimbursed with federal money, limiting the bill that way.

Reversing the mistake of Wyeth v. Levine would have far more beneficial effects on medical expenses and the economy, and be more consistent with federalism, even correcting a federalism mistake of the Supreme Court. But that probably wouldn't pass the Senate, either.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.