Section 401, for example, authorizes new federal “best practice” guidelines written by medical societies, designed to give physicians extra protections from malpractice lawsuits. These guidelines aren’t merely educational, though. They’re established as powerful litigation tools in state courts. If a physician can show he followed them, his accuser must meet a higher burden of proof to establish negligence. That may be a good idea, but it’s unconstitutional. The power to regulate civil justice is reserved to the states under our federal system. There’s neither a legal nor a practical justification for federal medical malpractice reform. States have this. They can reform their tort systems, and many have done so, with success.
Mr. Clancy and I are in complete agreement that Congress has no role meddling in medical malpractice. So, why did I ignore this part of Dr. Price’s bill and leave Mr. Clancy prime real estate in U.S. News & World Report to lay into it?