Republicans have become a bit of a broken record when it comes to tort reform. They endlessly make the case, rightfully so, that junk lawsuits have forced doctors to protect themselves by oversubscribing treatments to patients and purchasing expensive malpractice insurance, adding tens of billions of avoidable costs to the most expensive health care system in the world.
Despite all the GOP's verbal voracity in this area, all ObamaCare included was a lousy demonstration program. More specifically, a 5-year, $50 million grant program for states to demonstrate the virtue of tort reform.
This whole sham is so very quintessential of Washington politics. Democrats actually aren't against tort reform as a matter of policy; they just have no desire to financially harm their biggest donor base, the trial lawyer lobby.
Former Governor, presidential candidate, and Democratic National Committee Chairman Howard Dean has said as much, admitting that “the reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers.”
Although ObamaCare’s supporters refused to include tort reform, they still wanted to shut-up the Republican chorus and subsequently decided to create an unnecessary and thus wasteful program to demonstrate its virtue.
It is unnecessary because states have already demonstrated that the virtue of tort reform, thereby negating any need for a demonstration program.
During a pre-ObamaCare speech at the Heritage Foundation, outgoing Missippi Governor Haley Barbour wryly proclaimed “this ain't rocket science. If they want a demonstration project, come down to Mississippi, and I'll show you a demonstration project.
In 2004 Barbour signed wildly successful tort reform legislation into law, leading to a 91% drop in medical malpractice claims from its peak and the state’s largest medical liability insurer to slash its premiums by 42 percent.
Another criticism of the demonstration program is that it signals the federal government has a role in this area in the first place, when in fact they don't. Unfortunately Republicans that are eager to appear as problem-solvers, fail to remember, or worse, intentionally ignore their support of a limited federal government.
Even Governor Barbour is guilty of this, writing in The Washington Examiner that “folks can't understand how a proposal proponents claim will control health care costs doesn't include tort reform." The following are two proper reasons for why it shouldn’t ever be.
First, our founding fathers intentionally crafted a federal government that was limited in scope to a few powers and would leave all other decisions to the states and the people thereof. Given that neither tort reform nor health care are mentioned in the Constitution, or have a prevailing reason to be handled federally, it is most appropriate to be endeavored at the state level.
Second, from a policy standpoint state-initiated tort reform is more desirable. With a multitude of states experimenting with different solutions, through time we will progressively find out what works and what doesn't. This vision of states as "laboratories of democracy" will allow us to ultimately determine and implement the best solution possible.
A national law that acts as a single experiment simply wouldn't facilitate such an opportunity, inevitably leaving a better solution on the table that would advance America’s prosperity.
For these reasons Congress should de-fund ObamaCare’s tort reform demonstration program. Yes, it is a rather small element of the law, but it will serve as an important test of whether Republicans that campaigned on ending wasteful programs and stopping federal overreach are actually serious about enacting their promises.
It will also send an important signal for states that it is time for them to get busy and pass tort reform legislation.
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