Home -> Law Blog Directory -> Consumer Law Blogs -> ThePopTort

Consumer Law

: ThePopTort

"Tort Reform" Hypocrisy that Makes Your Head Explode

By Joe Consumer

As the health care reconciliation package moves to the Senate, Senators from ?tort reform? town will again try to amend the bill with limits on patients' legal rights.  Today, at least 12 conservative state Attorneys General will be filing a lawsuit to try to invalidate a portion of the health insurance reform bill that the President signs today.  Big business and their ?tort reform? groupies must be thrilled by both developments.  And my head is literally, I mean figuratively, exploding.

First, a big bit of irony.  Aside from the merits of the AG?s case, it needs to be said that there is not movement more on record hating activist state Attorneys General than the corporate-backed ?tort reform? movement.  They have set up entire organizations dedicated to undermining AG's consumer protection role, and sometimes oppose federal legislation largely for the enforcement powers given to state AG?s.

But back to the merits. The AG lawsuits over the insurance mandates are grounded in two parts of the constitution: the Commerce Clause and the 10th Amendment.  Basically the argument is that Congress can only do this mandate if interstate commerce in involved, and it?s not here.  Otherwise, under the 10th Amendment, only the states can act.  Lots of experts believe this is wrong, but OMG! 

Why on earth is there a legitimate Commerce Clause and states? rights argument here, but not when it comes to undermining traditional, 200-year-old state laws with federal ?tort reform??  The federal proposals would dictate medical negligence standards to courts in all 50 states, interfering with judgments made not only by state officials, but by local juries and judges as to what remedies should be available for injured patients.  Plus, these proposals would not only overturn countless state laws, they would interfere directly with state constitutions. That would include Georgia, whose state Supreme Court just ruled 7-0 that the state?s ?cap? on damages violated Georgia?s constitution.  Georgia.  A unanimous decision.

Thanks for letting me vent.

Full post as published by ThePopTort on March 23, 2010 (boomark / email).