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De-Fund Obamacare Proposal Also Calls for Med Mal Damage Caps

Over the next few week expect to hear endless talk about the debt ceiling and a potential government shutdown. Republican and Democratic leaders are again at odds over various federal fiscal policies, and the sides are, yet again, locked in political stalemate.

Most recently, on Friday a bill passed out of the Republican-controlled U.S. House of Representatives that represents the preferred GOP plan. As New York Times story on the situation explains, essentially, the bill funds the government until the end of the year. But it is also filled with a range of other, unrelated provisions. Most notably, the law also calls for the complete de-funding of provisions of the Affordable Care Act (so-called Obamacare).

As a practical matter, there is virtually zero chance that the bill would make it out of the Democrat-controlled Senate or be signed by President Obama.

So what does any of this have to do with medical malpractice?

Hidden in the legislation that passed the House of Representatives on Friday is a provision that we have often discussed on this blog: arbitrary medical malpractice damage caps which would apply to all fifty states.

Federal Medical Malpractice Cap Laws
The law which pulls funding from Obamacare also creates a $250,000 cap on non-economic damages in medical malpractice cases. This would represent an unprecedented federal takeover of what has always been a states-rights issue. At the same time, of course, the GOP repeatedly claims to be the party that respects federalism and state’s rights. The hypocrisy is vivid.

In fact,the federalism issue is even leading many supporters of caps to reject these federal proposals. For example, a Pop Tort article on the situation points to former U.S Senator Ben Nelson. Now the head of the National Association of Insurance Commissioners, Nelson previously worked within his home state to pass devastating damage caps. Yet, he is opposed to this federal law, precisely because he believes that federal lawmakers have zero authority to encroach on this topic. It should be left to the states.

This sort of packaging different issues together in a single proposed bill is a very long-standing traditional among all legislative bodies. In particular, unpopular proposals are frequently added to larger measures in the hopes that no one will notice the addition or that opponents will grudgingly vote for the whole package.

Fortunately, as already mentioned, this exact package has virtually no chance of advancing. Yet, that is not to say that under no circumstances would these provisions make it into federal law. Compromises happen all the time, and it is not inconceivable for usual supporters of patient rights to cave on this issue in order to reach agreement on a larger bill that avoids a government shutdown.

For that reason, it remains incumbent upon advocates to continue to rallying cry on behalf of legal fairness. It is simply unacceptable for the costs of dealing with a catastrophic injury following medical malpractice to be shifted to the victim and taxpayers. The responsible parties should be required to pay for the full consequences of their negligence as deemed appropriate by a jury.

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