Federalized Tort Reform

by Deepa Devanathan

While Former FBI Director James Comey testified in front of Congress about President Trump obstructing justice and while citizens protest TrumpCare (Trump’s new healthcare bill), there is barely a whisper about federalized tort reform. H.R. 1215, which has already passed in the House, is the legislative embodiment of Trump’s ideas for federal tort reform. It includes policies such as caps on medical malpractice damages and federal guidelines that preempt state tort law. While some people may rejoice over the idea of federally mandated tort reform, it is important to understand the consequences of such a wide-reaching bill.  Federalized tort reform carries the constitutional concerns of protecting the 7th Amendment and federalism.


The 7th Amendment: Thomas Jefferson once said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”  As Jefferson espoused, the 7th Amendment protects the right to a jury in a civil case, and Trump has proposed a cap on medical malpractice awards for noneconomic damages at $250,000, a three-year statute of limitations for claims (meaning that if it has been more than 3 years from the incident a plaintiff may not sue a defendant), and an exclusion of provider expressions of regret or apology from lawsuit evidence.  These proposals cabin juries’ discretion and decision-making power, thereby preventing parties in civil cases from fully enjoying their right to a trial by jury. Additionally, juries represent the ability of the community to set social norms.  Jury deliberation serves the important role of bringing communities together and tort reform, such as caps set at a national level, cut squarely against juries calculating reasonable damages.  There are some states that believe that certain proposals for tort reform, such as caps on non-economic damages in medical malpractice cases, do not violate the 7th Amendment.  However, even so, federal tort reform would still impinge on states’ rights.


Federalism: Even though tort law is traditionally state law, federal tort reform would prevent states from making their own changes to tort law. Each state has their own tort law and preserving that tradition is essential to ensuring that tort law matches community standards. There are already some states that allow caps on medmal damages to be surpassed if there is a permanent injury or death.  These state modifications and others would be preempted by federalized tort reform. Even health care providers want the federal government to give the states flexibility to enact their own tort reform; not a single health care provider was available and willing to argue for federalized tort reform when the conservative Congressional Civil Justice Caucus Academy led a panel on the bill. Federalized tort reform tramples on the states’ ability to be creative in their policies and to ensure that tort law is continuously evolving. As Dr. John Meigs, President of the American Academy of Family Physicians, told Modern Healthcare, “We don’t want federal law to be the ceiling for medical liability reform.  It should, instead, be the floor for medical liability reform.”


So what can be done with this information?  Federalized tort reform has yet to become law, so if the constitutional issues bother you then call your Senator before they vote and explain how important the jury is and how H.R. 1215 would severely limit the right to a civil jury across the nation.