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Vance: Medical Malpractice Is Issue for the States

After the House voted to repeal the Patient Protection and Affordable Care Act, House leadership promised they would work to pass their own health care reform alternative. As the weeks and months have gone by, their one and only answer? Eliminating the legal rights of patients injured by medical negligence, nursing home abuse and dangerous drugs and devices, despite the fact that 98,000 people die every year from preventable medical errors, with countless more injured.

And better yet, for all the recent discussions by House leadership of limited government, the Constitution, the Commerce Clause and states’ rights, you would think their latest foray into health care reform would promote these very principles.

Except it doesn’t even come close. In fact, the lead sponsors of H.R. 5, the deceptively titled Help Efficient, Accessible, Low-cost, Timely Healthcare Act cite the Commerce Clause as proof that this bill is constitutional ­­— the very same clause they use to explain why the Affordable Care Act should be nullified.

They can’t have it both ways. Not only will H.R. 5 make health care more dangerous for patients, but it is already raising eyebrows on both sides of the aisle as a massive federal government takeover of an issue that has strictly been in the domain of states since the founding of our nation.

Medical malpractice claims are brought under state law and applied by state courts and state juries. Most states have already passed laws that restrict malpractice damages or set other rules for how cases are brought. However wrong these laws may be, it is further evidence that the federal government has no role to play in this debate. The National Conference of State Legislatures has expressed strong bipartisan opposition to H.R. 5 because it inappropriately seeks to pre-empt and supersede these state laws.

The lead sponsor of H.R. 5, Rep. Phil Gingrey (R-Ga.), is a professed “states’ righter” and a member of the House Tea Party Caucus. Just last year, he spoke out against one piece of legislation on the House floor because he believed it represented a “‘Washington knows best’ solution and a one-size-fits-all approach to … decisions where there is not precedence for federal action.”

Such a statement could easily pass as a description for H.R. 5, yet it seems Gingrey has lost his way and strayed from these principles. In Gingrey’s home state of Georgia, the Supreme Court ruled last year that its malpractice caps were unconstitutional. So now he is resorting to a Washington takeover of our courts that will eliminate the legal rights of his constituents and all patients nationwide. H.R. 5 is “Washington knows best” thinking to the extreme.

All of these reasons are enough to give anyone pause about supporting this bill. But more importantly, one must consider the effect that H.R. 5 would have on the people that matter most when it comes to health care: patients. Instead of focusing on patient safety and reducing the very reason for malpractice cases — medical errors — this legislation takes away the rights of injured patients, removes incentives to improve safety and leaves more people at risk from negligent care.

This comes at a time when the last thing we need is less accountability. A study released last month found that one out of every three hospital patients encounters a medical error. Previously, the Institute of Medicine found that as many as 98,000 people die every year from preventable medical errors, the sixth leading cause of death in America and the equivalent of two 737s crashing every day for a year.

This bill would intensify the burdens on patients and their families, ultimately leaving them to find other ways to pay for medical costs caused by the health care industry’s negligent or reckless acts. In most cases, the costs would fall on the rest of us through higher taxes and higher health insurance premiums. Meanwhile, the health care industry would not be held accountable for negligent behavior, nor would it have any incentive to improve patient safety.

The civil justice system has a long track record of holding negligent health care providers accountable, providing resources for injured patients and their families, and forcing medical facilities to clean up their acts.

Instead of the federal government inserting itself into what has always been a state issue, Congress needs to focus on the more pressing concern — making hospitals and health care in this country safer.

If Congress wants to get serious about reducing medical malpractice lawsuits and lowering the cost of health care, you have to get serious about putting patients first and reducing medical errors. Using a bill like H.R. 5 to eliminate the rights of injured patients will not accomplish that.

Gibson Vance is president of the American Association for Justice.