House Passes PATH Act Medical Malpractice Tort Reforms

On March 22, the United States House of Representatives voted 223-181 to pass House Resolution 5 (HR 5), the Protecting Access to Healthcare (PATH) Act, which would repeal the Independent Payment Advisory Board (IPAB) for Medicare as well as place a federal $250,000 cap on non-economic damages in medical malpractice lawsuits, limit punitive damages, establish a three-year statute of limitations and abolish joint and several liability.

The portions of HR 5 that affect medical malpractice liability has been debated several times since Republicans took control of the House of Representatives in 2010, but previous versions were not attached to the IPAB repeal. The portions of the PATH Act that deal with medical malpractice liability were debated last year as the Help, Efficient, and Accessible, Low-cost, Timely Health Care (HEALTH) Act.

What is interesting about the federal medical malpractice tort reforms is that it catches conservatives in a Catch-22. Republicans love tort reform and they love legislation that protects physicians from meritless lawsuits, but they also love to use the 10th Amendment to the United States Constitution as their argument for a smaller, more limited federal government. The 10th Amendment states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.”

Viewed in the context of the 10th Amendment, a federal cap on non-economic damages violates individual states’ rights to regulate medical malpractice litigation as their legislatures see fit.

As evidence of conservative concern over what they deem an unconstitutional overreach by Congress into tort law, an issue not enumerated for the federal government in the Constitution, one need look no further than the conservative think tank the Heritage Foundation, which has come out against the PATH Act and did the same against the HEALTH Act last year. This time, the conservative National Conference of State Legislators as well as Tea Party Nation founder Judson Phillips has joined the Heritage Foundation in their protest.

Conservatives aside, physician groups very much support HR 5, saying that a federal cap on non-economic damages would add predictability to medical malpractice liability lawsuits, which would have a deflating effect on their medical malpractice insurance premiums.