A Mandate Is Not a Market Solution to Medical Malpractice

by John R. Graham

Today’s New York Times has a compelling op-ed by Ronen Avraham, a law professor at the University of Texas.  It proposes a way to fix the out-of-control medical-malpractice laws that hold sway over much of the country. Pointing out that both Republicans and Democrats in D.C. regret that Obamacare didn’t do enough on med-mal, Professor Avraham proposes a reform based on the sound principle that physicians who follow accepted medical guidelines should suffer reduced liability. I can’t imagine that any reasonable person would disagree with this principle. However, there are two problems with his proposal.

First, Professor Avraham goes the way of many clever people who have a good idea, but become frustrated that society does not immediately adopt it: He proposes that the federal government mandate that physicians purchase (or license) appropriate guidelines from for-profit companies!

If there’s one thing we’ve learned from Obamacare, it’s that Americans — either patients or doctors — don’t like the federal government mandating that they buy products or services. And the lobbying efforts focused on writing and modifying the guidelines would quickly become truly (and expensively) monstrous. The process for composing the guidelines would quickly become intertwined with the already overly controlling Food and Drug Administration, as well as the looming threats of both government-sponsored “comparative-effectiveness reviews” (which were financed by the 2009 stimulus) and the Independent Payment Advisory Board (IPAB) that Obamacare institutes. In other words: Just another way for the federal government to tell you whether you can have a red pill or a blue pill, as the president has put it.

States have demonstrated empirically effective reforms to med-mal laws that do not rely on the federal government mandating that physicians purchase guidelines from for-profit companies. Texas seems to get all the headlines, but other states have also instituted good reforms, according to a recent ranking.

Second, Professor Avraham joins with too many Republicans and Democrats in asserting a federal power over med-mal laws. Where in the Constitution does he find an enumerated congressional power to legislate torts of professional liability? Let the states deal with med-mal reform, and let Congress focus on defunding and ultimately repealing Obamacare.