By Maureen Martin, J.D.
The nation’s doctors are rightly concerned about the need for medical malpractice reform, but their clamor this week for passage of a federal reform law raises troubling legal questions and likely would do little to stem malpractice case filings.
There is no question malpractice reform is needed. The Pacific Research Institute this year pegged the cost of “defensive medicine”—unnecessary testing and other procedures motivated more by fear of litigation than medical necessity—at about $185 billion. Large malpractice awards have raised malpractice insurance premiums—and thus the cost of health care—and driven doctors out of states with liberal laws, especially doctors in high-risk specialties such as obstetrics and orthopedics.
But federal reform won’t work. “Medical malpractice tort law has always been maintained at the state level,” according to the National Conference of State Legislatures (NCSL). Under our Constitution, the federal government has only those powers explicitly granted in it. General police powers—the right to protect the health, safety, and welfare of citizens—are not listed and belong exclusively to the states.
Malpractice cases, except under very limited circumstances, can be filed only in state court. And even when cases can be filed in federal court, those courts apply state malpractice law. In 2007 there were 1,164 medical malpractice cases filed in federal court, while 85,000 medical malpractice cases were brought in state courts.
Congress can change only federal law. It would be unprecedented—and likely unconstitutional—for Congress to try to abolish or rewrite state medical malpractice law.
Congress would have to find a federal malpractice reform law “preempts” state law under the Supremacy Clause, which says federal statutes “are the supreme law of the land.” But preemption can happen under the Constitution only if the federal government has the constitutional power to regulate a particular area in the first place. Interstate commerce, for example, is an enumerated power that belongs solely to the federal government. There is no such power in the Constitution over medical malpractice.
It’s tempting to address national problems with one sweeping federal law. But such an approach is not only unconstitutional, it’s unnecessary.
Several states—Colorado, Florida, Illinois, Maryland, Michigan, New Hampshire, Texas, and West Virginia, among others—already have enacted medical malpractice reform. Further efforts are pending in other states. These measures are already effective, and they ought to be given a chance to work.
NCSL noted federal legislation introduced in 2005 would “nullify the work of their state legislatures executed over the last three years” and “dismantle state judicial authority and preempt all existing state laws governing medical malpractice lawsuits.”
Because Congress likely does not have the power to enact malpractice reform in the first place, and because the dismantling of state laws would be so drastic, federal challenges to any such law are likely and could take five years or more to resolve. This would set back, not advance, the campaign for malpractice reform. That sort of “reform” would be worse than the status quo.
Maureen Martin ([email protected]), an attorney, is senior fellow for legal affairs at The Heartland Institute.