Since this has not been tested judicially, all we can do is speculate. My personal guess would be that the safest legal basis on which the federal government could legislate this would be interstate commerce; one could argue that in all cases where medical services are performed across state borders, claims in tort for malpractice have a sufficient link to interstate trade to allow the federal government to legislate. This could cover cases where resident of state A is hospitalized in state B, or where a patient was harmed by a drug imported from either abroad or from another state.
In a scenario where patient, health care provider and producer of the drugs that caused injury are all residing in the same state, this would not work, leaving the issue to state legislators; but it would at least cover a big chunk of malpractice litigation.
Do you think so? My guess is most cases involve docs, patients, and hospitals from the same state. Expansive commerce clause is what I was guessing, as well, but I think it would be particularly ironic for a Republican legislature to invoke that. Have the proponents of any federal tort reform ever stated a clear consitutional basis that addresses Tenth Amendment concerns?
Could not Congress just enact "Any patient whose health care is financed in part by the federal givernment is restricted as follows … " ? Could private insurance companies impose a similar requirement on their patients?
IA definitely NAL, but couldn’t much tort be avoided by better enforcement of contract law?
I can’t answer your question about constitutionality, but the vast, vast majority of med mal claims are brought in state court. I’d be shocked if more than 5% are brought in federal court. I’d be mildly surprised if more than 1% are.
If private insurers could cap med mal awards contractually and it was in their interests to do so, they would have. The patient’s private health care (as opposed the doctor’s E&O) insurer probably isn’t even a party to the med mal action except to the extent that they have a right of subrogation/indemnification, in which case their interest would lie in large awards (large enough to be fully indemnified, at least). I don’t think med mal claims are a healthcare insurance issue, per se; rather, limiting those awards is an ostensible (and debatable) means of bringing down healthcare costs.
I think you might be on to something with the first part of your answer though - could congress tie fed money to a cap on med mal damages?
Because medical malpractice is a very, very small part of the cost of the health care system. On the order of 1% or so. Even if you include people who sue just to ensure that future costs related to a medical mistake will be covered, and include estimates of the cost of unneeded medical procedures done to guard against later malpractice claims, the cost of this is still a tiny portion of the health care system.
But f we want to discuss health care reform more, I think this topic will end up moving to the GD category.
I get all of that. The point was to provide a baisis to address the claim - that limits on med mal damages will reduce health care costs - on its own terms. Assuming a damages cap will materailly reduce healthcare costs (obviously debateable), what is the proposed method of implementing such reform? If by federal legislation, how do you get around the 10th Amendemnt? I admit, the Commerce Clause provides a pretty big bypass, but is that the consitutional basis? If so, given who the proponents of said federal tort reform might be, the irony is pretty apparent.
All that aside, maybe this is more appropriate in GD, though I fear the signal-to-noise ratio there might prevent any factual answeres regarding the above.
This ignores the huge cost of malpractice insurance. For a brain surgeon, the annula premium may surpass $250,000.
For obstetricians, it is over $120,000.
So, yes, litigation and the threat of it adds greatly to the cost of healthcare.
Medical malpractice insurance is the basis for Commerce Clause jurisdiction on the Fed Gov’s part. The vast majority (I’m tempted to say “All”, but I can’t provide a cite) of MedMalIns Cos do business with doctors in multiple states. Claim on Dr A over “mistake” on patient B who’s from the same state still gets paid by Ins Co C, doing business in multiple states, raising premium costs on all Drs it covers, regardless of state. Hence “Interstate Commerce”.