Tort Reform At The National Level, Ctd

Most lawyers who have written in disagree with this reader. A sample:

"Simply put, the federal government has no jurisdiction over the vast, vast majority of medical malpractice actions, which are nearly always filed in state courts, pursuant to state statutory or common law."

It would be more precise to say that the federal courts have no such jurisdiction. I do not see what would prevent Congress from enacting tort reform on the national level.  No doubt it could pass constitutional muster under the Commerce or General Welfare clauses.  This could be done in (at least) 2 ways: 1) Congress could simply pass a law that says no health care provider in the U.S. shall be liable for non-economic damages over a certain amount.  2) Congress could also incentivize the states to change their laws to enact tort reform by conditioning eligibility for federal health care money upon tort reform. This is what was done with federal highway funds to get all the states to raise their drinking ages to 21.
I do agree with this attorney (and the researcher you linked earlier) that tort reform is a red herring in terms of real cost-cutting measures, so I urge you not to devote too much precious space on the Dish to it.  But you are also right that every little bit helps, so it should be part of the discussion.  I suspect the primary benefit of putting tort reform on the table in the health care debate is political - if it gives cover to a few Blue Dogs or moderate Republicans to vote for the reform, then it could have an impact far beyond its discrete utility.

Another reader:

Your commenter from Texas is wrong -- the Commerce Clause of the Constitution (Art. I., sec. 8, cl. 3) gives Congress the power to regulate interstate commerce.  Under well-established Supreme Court jurisprudence, this is pretty expansively construed to include almost anything that has some effect on interstate commerce, even if the activity in question is intrastate in nature. This is how the federal government can pass environmental laws, criminalize drug possession and distribution, etc.  Of course, some conservatives decry this as an unwarranted expansion of federal power, and the Rehnquist court went so far as to rule parts of the Violence Against Women Act unconstitutional on the grounds that there is an insufficient connection between violence against women and interstate commerce.  I'm guessing that medical malpractice would pass the interstate commerce threshold, however.  Oh, and the Supremacy Clause of the Constitution (Art. VI, par. 2) makes federal law the supreme law of the land -- any statute Congress passes regulating medical malpractice would trump state law (assuming the federal statute is otherwise deemed constitutional).

Another lawyer mostly sides with the original reader:

Your reader from Texas is absolutely right.  Tort law (much like contract law) is and always has been a state issue.  It always amazes me to hear these self-proclaimed federalists on the right scream for tort reform at the federal level, when any federalist with the slightest bit of legal training would immediately understand that this is a state law issue, not a federal one.

Additionally, you're wrong to say that it's not a reason to exclude tort reform from the discussion.  Federalism is suppose to be at the heart of American conservativism, a respect for the constitutional order.  There's nothing in Article I, Section 8 of the federal constitution that would give Congress the authority to enact tort reform (as an aside, I think there is a rather decent federalist argument to be made that health care reform should be left to the states, the Federalist Papers describe the State police powers as governing "health, welfare, and morality").

Additionally, no one is thinking of the long term consequences on this.  If the federal government finds some way to effectuate tort reform (and, honestly, I could see this being an issue that the US Supreme Court could use to severely curtail the power of the federal government, if it was so inclined), you would open up a whole new category of cases for the federal courts.  Your Texas lawyer reader is right, these cases are filed in state court under state law.  The only way you can get into federal court is if you have diversity of citizenship (meaning the plaintiffs and defendants are from different States) or you have a federal question.  These are typically not issues that the federal district courts should be dealing with, they are more properly the realm of state courts.

The only way you make this work is if you tie tort reform to funding.  And I just can't see that going over well with anyone at any level of government.