Where the Rubber Meets the Road on Tort Reform July 30, 2011.

It looks very much like H.R. 5 may go up in smoke. This is something that warms the heart of many dedicated medical malpractice lawyers who have their client’s rights in mind.

Just a quick recap will bring you up to speed on this proposed Act. H.R. 5 was designed to pre-empt most medical care lawsuit across the nation. The uproar over this was stunning, but rightfully so, as that act would breach the right of the individual states. But more than that, it would attack the most vulnerable – the victims of medical malpractice or medical negligence.

There is more than one point of view regarding H.R. 5, and many of them have caused heated debates, but one thing is painfully clear. The federal government cannot demand strict limits on federal power and then try to mandate federal control over state tort laws. The bottom line being that by trying to federalize all med mal litigation, it will not accomplish tort reform – in fact quite the opposite, often dubbed as tort deform. It’s a plain and simple concept that if Congress attempts to deal with med mal law, it slams into the brick wall of mega-serious federalism controversy and problems.

The thing you need to understand is that most med mal lawsuits move forward in state courts under the auspices of state laws. If Congress wants to try to impose a rule on those suits, like capping damages for pain and suffering, it has to have the answer to this question: "Which of the government’s constitutionally prescribed powers allows it to act?" is there an answer to that question? Likely not, as so far no one has come up with an authority to do this.

What is the real issue here? The issue is, in plain English, that Congress has no authority to implement tort reform, because this is within the purview of the states. Some even say that trying to ram through federal tort reform is an abuse of the Commerce Clause. Now that is food for thought. Suffice it to say that even more lawmakers, legislators, judges and lawyers state that H.R. 5 is unconstitutional – period. Constitutional experts all seem to agree on this one; a rarity in itself indeed.

Where is this flap going to end up? That’s a good question, and without a crystal ball, it would be hard to answer. Right now things are up in the air and on stall, which may well be a good thing. State wise, many legislators are taking a hard look at med mal capping/tort reform in light of some really egregious med mal lawsuits.

The prevailing question arising out of the horrendous cases, are why should the innocent victim suffer, why should the medical professional get away with committing negligence and not be held accountable for it, and why should the victim be victimized twice; once by the medical professional and once by the justice system? Those questions are what keep those who advocate justice for med mal victims awake at night.

In other words, med mal and tort reform is not just about constitutional issues, turf wars and insurance money. It is about the victim whose life has been ruined by someone’s negligence. That bears some sober second thought.