Republican Senator and Physician Tom Coburn Questions Constitutionality of Federal Malpractice Reform

A few weeks ago, I had this column in the Washington Examiner questioning the “fair-weather federalism” of House Republicans supporting HR-5, which regulates the tort of malpractice by employing a highly expansive reading of the commerce power. I was pleased, therefore, to learn of this statement by Senator Tom Coburn (R-OK), a physician and supporter of medical malpractice reform, in which he questions the constitutionality of federal malpractice reform.

Dr. Adashi: Shifting gears now Senator to another issue that is obviously on the mind of all physicians and that you as a practicing family medicine practitioner as well as an obstetrician/gynecologist would be very aware of, and that is of course the malpractice challenge and the notion that perhaps we can reform our medical liability situation. What is your general vision on that matter, and could you support a bill such as the health act proposed by Representative Gingrey? Do you think of this as a federal matter as opposed to a state matter? What can you share with our viewers, given a life experience both as a practitioner and as a legislator on this thorny issue?

Senator Coburn: It is a big issue. Defensive medicine costs, at a minimum, are $200 billion a year in this country. Where you have seen significant tort reform, like Texas, California, and Mississippi, what you have seen is not only have malpractice rates gone down, but also after about 2 years, you start to see practice patterns change. Oklahoma, my home state, just passed a tort change. We have been trying to do it for 25 years, and now there is a limitation on noneconomic damages for every action — not just healthcare — every action in our state is limited to $350,000. That is going to draw business to our state like crazy.

What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I’m sure nobody would object to saying we can extend it enough to say what your tort law is going to be. Then we are going to have the federal government telling us what our tort laws are going to be in healthcare, and what about our tort laws in everything else? Where does it stop?

One of the things our founders believed was that our 13 separate states could actually have some unique identity under this constitution and maybe do things differently, and I think we ought to allow that process to continue as long as we are protecting human and civil rights. I am real happy about what Oklahoma has done. I can’t believe that any state wouldn’t do that, but it is okay to fail. I don’t like the liability system. I had a bill last year — the Patient’s Choice Act — which incentivized the states to change. In other words, if you would go to a system where you would actually reform, we would supplement your Medicaid payments. We would incentivize you to do that, and I think that is the better way to do it.

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