Why Replacing the ACA with Med-Mal is an Unconstitutional Assault on Patients’ Rights

Before the ink was even dry on the Supreme Court ruling in the Affordable Care Act (ACA) case, numerous Members of Congress argued repeatedly and publicly to repeal and replace the ACA with a federal medical malpractice proposal that relies on the Commerce Clause for constitutional authority. This legislation would decimate the legal rights of patients injured by negligence, nursing home abuse, or defective drugs and devices and eliminate any incentive improve patient safety. After the Supreme Court ruling, it is also clear that federal medical malpractice efforts exceed Congress’s Commerce authority and violate our system of federalism.

98,000 people are killed annually from preventable medical errors. Efforts that limit accountability ignore this crisis.

The House has already passed a version of federal medical malpractice reform twice this Congress in the form of H.R.5 (the so-called “HEALTH Act.”) This bill ignores the patient safety crisis and instead takes away the legal rights of injured patients.

• 98,000 people die every year from preventable medical errors, according to the Institute of Medicine. Studies have confirmed the problem is only getting worse. Congress must focus on patient safety.
• Removing legal accountability will decrease patient safety and lead to more injuries from negligent care.
• H.R.5 imposes severe, one-size-fits-all caps on damages that injured patients can seek – not just when injured by medical negligence, but also by defective drugs, medical devices, or abuse suffered in nursing homes.
• H.R.5 even extends this cap to health care providers that intentionally harm or kill patients.
• The best way to cut down on malpractice lawsuits and reduce health care costs is to improve safety and reduce the number of preventable medical errors.

Federal tort reform is unconstitutional.

Members of Congress who argued that the ACA is unconstitutional because it exceeds power granted to Congress under the Commerce Clause are caught in a hypocritical bind because H.R. 5 relies on the same use of the Commerce Clause to mandate changes to state tort law.

• The Supreme Court health care ruling bolstered the argument that federal efforts to deny patients’ legal rights by mandating changes to state laws and state courts exceed Congress’s authority under the Commerce Clause and violate our system of federalism.
• The call by many Congressional Republicans to include federal malpractice reform in the “Replace Plan” is hypocrisy at its worst.
• State lawmakers, conservative legal scholars and Republican elected officials have expressed opposition to federal medical malpractice reform:
  • Constitutional Conservatives: Federal Tort Reform Violates States’ Rights and the 10th Amendment
• Medical malpractice is an issue reserved for the states under the 10th Amendment to the Constitution.