Andrew Cochran Apr. 19, 2013, 10:04am

Some Members of Congress continued to pursue federal medical liability limits this spring, notably Republican leadership in both houses: Reps. Paul Ryan, Marsha Blackburn and Renee Ellmers, and Sen. Rob. Portman.

They ignore the warnings from experts in constitutional law cited often by Republicans, such as Prof. Randy Barnett, Virginia AG Ken Cuccinelli, Prof. Ilya Somin, Rob Natelson, Ted Frank and Walter Olson. The protestations of states' rights advocates such as the National Council of State Legislators; Sens. Tom Coburn and Mike Lee; Reps. Ted Poe and Louis Gohmert; and the leaders of Tea Party Patriots and Tea Party Nation go ignored.

Republican experts on health care policy, such as Tom Miller, Jim Capretta and Avik Roy, advised Republicans to pursue measures other than liability limits to improve health care quality or reduce the cost, but the Republicans named above ignored that advice.

All these experts and 10th Amendment advocates have opined that a federal medical liability limit is an excessive use of federal power and now has little chance of surviving scrutiny by the Supreme Court under its rulings on the Commerce Clause and the Necessary & Proper Clause in the Obamacare decision.

Nevertheless, Republican House and Senate leaders forced a medical liability limit provision into their budget plans, and did so without committee debate.

A better name for any federal medical liability limit would be the "Dr. Gosnell & Abortion Butchers Civil Protection Act." Almost every such proposal would have the impact of protecting abortion butchers like Dr. Gosnell, now on trial for murder in Philadelphia, from full accountability before a local jury.

Medical malpractice suits brought by families against other abortion butchers, as well as against other dangerously incompetent doctors and medical professionals, could be severely limited in impact, and the Gosnells of America would be allowed to keep much of the "blood money," if federal limits are imposed. Most medical liability limit proposals would sharply limit non-economic and punitive damages, so butchers such as Gosnell wouldn't feel the full sting of a jury verdict on his assets. And they even protect doctors who commit intentional torts, such as sexual abuse! All this is lost on the politicians who ignorantly repeat whatever the medical lobbies put in front of them.

For John Boehner, Rob Portman and Paul Ryan, medical liability limits are an article of faith to beat trial lawyers over the head. Even though these Republicans are vocally protective of the right to life, they don't stop to think that liability limits are a blank check for butchers like Gosnell.

But I'm really surprised that Republican women in Congress, such as Reps. Blackburn and Ellmers, so thoughtlessly ignore the impact of federal liability limits on women's health.

Didn't they read the horrific accounts of the deaths of the born babies and 41-year-old Karnamaya Mongar, who died at Gosnell's hands? Don't they realize the danger of their insensitivity? Why don't they see the value of the civil justice system that the Founders designed, grounded in the 7th Amendment right to a civil jury trial, as a means of punishing dangerously negligent doctors?

If Republican women politicians and their leaders want to avoid being accused of waging a "war on women," they should start by ensuring that deadly doctors, hospitals, nursing homes, and drugs and devices don't receive legal protection from civil liability in federal law.

Andrew Cochran, founder and editor of the 7th Amendment Advocate, is a business consulting and government affairs specialist in Washington, D.C.  Mr. Cochran advocates plaintiffs' and victims' positions on proposed legislation and regulations before the Congress and the Executive Branch. He works to obtain bipartisan approval of proposed legislation and resolves outstanding claims filed pursuant to federal law. 

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