FINO Sighting: House ‘Conservatives’ Push Unconstitutional ‘Med Mal’ Reform

Another FINO sighting.

FINO is a wonderful term, coined, I believe, by libertarian law professor Randy Barnett. It means “federalists in name only.” Synonym: “fair-weather federalists.”

And now it seems the genus FINO includes the self-described “conservatives” of the House Republican Study Committee (RSC), who are working to impose unconstitutional federal medical malpractice reforms on the states.

According to a report in The Hill newspaper, the leadership-aligned RSC is urging House leaders to include med-mal mandates in the six-years-in-the-making Republican “Obamacare replacement” bill.

This comes only five weeks after members of the (authentically) conservative House Freedom Caucus embarrassed GOP leaders by blocking the leadership’s unconstitutional med-mal bill in the Judiciary Committee—a bill opposed by a long list of constitutional conservatives.

To be fair, the RSC bill is narrower than the leadership’s. It doesn’t overwrite state malpractice laws wholesale. Instead, the RSC takes a “federal nexus” approach, imposing mandates only where federal spending or jurisdiction comes into play (for example, when Medicare or Medicaid patients sue their doctor).

But that approach, too, is unconstitutional.

Neither the Commerce Clause, nor the Spending Clause, nor any other clause of the Constitution gives Congress the power to rewrite the rules of civil lawsuits in the states. Not even when there’s a “federal nexus.” Under the Tenth Amendment, those powers remain with the states. When a case is removed to federal court (as when the parties are citizens of different states), state rules still apply (specifically, the rules of the state where the case is heard).

The whole idea of attaching federal strings to federal dollars, to get around the Constitution’s limits, should raise a red flag. It’s how Big Government got so big. It’s the way Democrats expanded Medicaid under Obamacare. Normally, conservatives rail against it. But hey, the physicians’ lobby really wants it!

Here’s the RSC’s specific recommendations:

Reforming Medical Liability Law – Reforming medical liability laws to address runaway costs caused by frivolous lawsuits and defensive medicine. The [RSC’s proposed] American Health Care Reform Act addresses the medical liability crisis that drives up health-care costs by creating a legal safe harbor to physicians who follow evidence-based best practice guidelines by providing: (1) a voluntary right of removal to federal court so long as there is a federal payer (including Medicare and Medicaid) or a federal statute, (2) a mandatory independent medical review panel prediscovery, and (3) an increased burden of proof for plaintiffs to overcome summary judgment from the standard of “preponderance of the evidence” to that of “clear and convincing” after a finding of non-negligence by the review panel. These provisions are designed to improve patient care and lower the cost of health care by encouraging the practice of evidence-based medicine while protecting states’ rights.” [Emphasis added.]

For the word “protecting” here, mentally substitute “violating.”

FINO sighting: verified.

Dean Clancy, a former senior White House and congressional aide, writes on U.S. health care, budget, and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.

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