Three recent proposals by highly respected conservative health care experts indicate how far out of favor the idea of capping medical malpractice damages through federal law has fallen in the past two years. Increasingly, the experts who guide Republicans in health care policy are accepting the likelihood, as stated by Randy Barnett this summer, that the post-Obamacare Supreme Court would overturn any federal law mandating caps on damages in medmal lawsuits, while NECC's negligence leading to the meningitis outbreak across the country has turned federal immunity from liability into something politically radioactive.
Tom Miller of AEI has written a 62-page piece with a playbook for market-based reform. I knew Miller years ago when he worked at the libertarian Cato Institute; he has always been a strong proponent of federalism and never really signed up for federal medmal caps. On page 55 he writes that "Exclusive reliance on caps on damages for noneconomic injuries may provide some short-term relief in lowering malpractice insurance premiums, but they may prove too arbitrary. Imposing them at the national level (except for federal programs like Medicare and Medicaid) also threatens to infringe on the traditional role of states in handling such issues. Other medical liability reforms, like health courts, early-offer incentives, and a no-fault schedule of damage claim amounts, merit further consideration."
Jim Capretta of AEI, one of the most quoted health care experts among Republicans, has been a friend for years with whom I've had several great conversations on the topic. He has a new 10-page piece out in which he doesn't even mention medmal caps, the first time he's dropped it completely from his work. Jim has moved towards protecting federalism in all health care law as doctors' demands for federal protection exposed Republican inconsistency with the party's stand against Obamacare.
Avik Roy, a fellow at the Manhattan Institute and a health care policy advisor for Republican Presidential nominee Mitt Romney, has always argued against federal medmal caps. This year, he promoted a Tea Party-side plan proposed by Rep. Paul Broun, M.D., who also vocally opposes federal medmal caps. Now Roy has his own Obamacare replacement plan, and federal medmal caps are nowhere to be found.
Of course, politicians in a position of authority can propose whatever they want to do, but these proposals indicate that federal medmal caps are no longer a high priority in the Republican health care agenda. The constitutional arguments against it make it unlikely to survive in court, and the political cost of immunizing the NECC's of the country from deadly errors is too great.