Tort reform bill takes fire from right

Opponents of a House medical malpractice bill are trumpeting an attack on the legislation from a prominent conservative lawyer.

Georgetown University law professor Randy Barnett accused the GOP of practicing “fair-weather federalism” on the malpractice bill, which would preempt state laws that conflict with its cap on some jury awards.

Barnett represents the National Federation of Independent Business in its lawsuit challenging the healthcare law’s requirement that most people buy insurance. Opponents of the malpractice bill say those conservative bona fides lend credibility to his criticism.

“I think that’s huge,” said Susan Parnas Frederick of the National Conference of State Legislatures.

NCSL says restrictions on malpractice suits should be left to the states. The House bill would set a limit of $250,000 on noneconomic damages and preempt state laws that have established higher caps. Some state constitutions also block the type of changes the bill would make. They would also be overridden.

“State court is an area for state law, not federal law,” Frederick said.

The American Association for Justice, which represents trial lawyers, also highlighted Barnett’s criticism. He took on the malpractice proposal during a weekend op-ed and a subsequent post on the legal blog Volokh Conspiracy, to which he is a regular contributor.

The bill violates House Republicans’ pledge to cite specific constitutional authority for all legislation, he wrote.

“In considering a tort reform bill, the Republicans in the House of Representatives are about to violate one of the first promises they made upon taking control,” Barnett wrote.

---