During the 2009 healthcare reform debate, and now during their campaign to overturn or weaken the healthcare law, conservatives espoused principles such as states’ rights and limited federal government. However, when it comes to holding the medical industry accountable for deaths and injuries caused by medical malpractice, many conservatives switch views suddenly to support sweeping federal interventions in state law.
Some self-described conservatives are pushing to pass a bill called the “Help Efficient, Accessible, Low-cost, Timely Healthcare Act (H.R. 5), which would sweep away centuries’ worth of state laws and replace them with a one-size-fits-all federal mandate. By turning traditional conservative arguments on their heads, this bill demonstrates that the only principle at work is the commitment to shield powerful industries – doctors, hospitals, medical device and drug makers – from accountability.
A subcommittee of the House Energy and Commerce Committee recently debated H.R. 5, which would give virtual liability immunity to the medical industry for reckless conduct. Included in its repertoire is a national $250,000 cap on noneconomic damages, restrictions on punitive damages against pharmaceutical and medical device companies that engage in reckless conduct, limits on the time period for a patient to file a lawsuit to seek compensation for injuries and other obstacles that would deter meritorious cases from going forward.
Many supporters of H.R. 5 are vociferous opponents of the recently passed health-related federal law, the Affordable Care Act. Foes of healthcare reform claim that the Commerce Clause of the U.S. Constitution, which gives the federal government some authority over states, was abused to pass the healthcare law.
In this Congress, House sponsors of any bill must explain Congress’ constitutional authority to pass it. Ironically, H.R. 5’s sponsor, Rep. Phil Gingrey (R-Ga.), cites the Commerce Clause as he tries to enact sweeping legislation that would completely overhaul state tort law and undermine hundreds of years of precedent. According to Gingrey, “[h]ealth care-related lawsuits are activities that affect interstate commerce.” Yet, for Gingrey, his statement represents a complete reversal from his position on the Affordable Care Act, which he has called “the government takeover of our healthcare system.”
Some conservative lawmakers have expressed concern about congressional authority to pass H.R. 5, but that concern has yet to stop any of them from voting for it. During the House Judiciary Committee debate of H.R. 5 in February, Republican Reps. Louie Gohmert and Ted Poe, both from Texas, expressed wariness of H.R. 5. Poe said, “I’ve got problems with that. I think it’s a violation of the Tenth Amendment, and I don’t believe the federal government has any more authority to regulate healthcare under the Commerce Clause than it does to regulate liability caps in states under the Commerce Clause.” Despite this, both Gohmert and Poe voted in favor of the bill.
Along with their push for states’ rights, conservatives typically also argue in favor of a free market system to support a smaller federal government role. If viewed fairly – and not through a hypocritical lens to restrict individuals’ rights and protect businesses over consumers – the tort system is a free-marketer’s dream. It allows medical providers to operate with less affirmative regulation and advances public safety instead by the simple requirement that providers behave reasonably.
Under this arrangement, the healthcare industry is free to pursue its economic interests and is generously compensated for accuracy, creativity and entrepreneurship. However, when doctors, hospitals or pharmaceutical companies fail to act reasonably and harm people, they are held accountable for the harm.
H.R. 5 would skew these economic incentives. Due to the bill’s restrictions, qualified lawyers would have to turn down meritorious cases because any recovery would likely be insufficient to make up for the expense of the litigation. Even worse, bad doctors who commit medical malpractice would be rewarded.
Support for H.R. 5 among purported conservatives has nothing to do with adhering to particular principles. It is largely about giving handouts to powerful friends in the medical industry.
