Medical-malpractice reform has long been on the Republicans’ health-reform checklist (most of which seems to be writtten in invisible ink). Representative Gingrey of Georgia passed a bill through the House in 2005, and has re-introduced it. The key ingredient in the legislation is a cap on punitive, non-economic damages of $250,000, imposed where states themselves have failed to enact caps. The justification is that Medicare and other federal health programs suffer the costs of out of control med-mal litigation just like everyone else.
I hope the Republicans don’t take the bait. First, the president’s med-mal reform will surely read something like: “If doctors obey the new federal rules on how they practice medicine, and ration treatment accordingly, they have a safe harbor.” Organized medicine’s cartel will likely cave into this, but the incentives are obviously awful.
Second, and here I challenge long-standing Republican (and, perhaps, even conservative) doctrine, Congress has no business passing med-mal reform. I’m a med-mal hawk: I compile an annual publication, the U.S. Index of Health Ownership, that uses inputs from my colleagues Lawrence McQuillan and Hovannes Abramyan to measure states’ success in passing good med-mal legislation.
Many states still need med-mal reform, but they should do it on their own. Federalism demands it. Plus, the trend is our friend: States that neglect med-mal reform will face serious shortages of physicians. When Texas enacted effective med-mal reform, the number of physicians applying for licenses jumped up by 57 percent from 2003 to 2008. They didn’t spring out of the ground, but migrated from other states.
This blog post originally appeared on National Review’s Critical Condition