A subcommittee of the House Energy and Commerce Committee recently debated H.R. 5, which would give virtual liability immunity to the medical industry for reckless conduct. Included in its repertoire is a national $250,000 cap on noneconomic damages, restrictions on punitive damages against pharmaceutical and medical device companies that engage in reckless conduct, limits on the time period for a patient to file a lawsuit to seek compensation for injuries and other obstacles that would deter meritorious cases from going forward.



Many supporters of H.R. 5 are vociferous opponents of the recently passed health-related federal law, the Affordable Care Act. Foes of healthcare reform claim that the Commerce Clause of the U.S. Constitution, which gives the federal government some authority over states, was abused to pass the healthcare law.



In this Congress, House sponsors of any bill must explain Congress’ constitutional authority to pass it. Ironically, H.R. 5’s sponsor, Rep. Phil Gingrey John (Phil) Phillip GingreyEx-Tea Party lawmakers turn heads on K Street 2017's top health care stories, from ObamaCare to opioids Beating the drum on healthcare MORE (R-Ga.), cites the Commerce Clause as he tries to enact sweeping legislation that would completely overhaul state tort law and undermine hundreds of years of precedent. According to Gingrey, “[h]ealth care-related lawsuits are activities that affect interstate commerce.” Yet, for Gingrey, his statement represents a complete reversal from his position on the Affordable Care Act, which he has called “the government takeover of our healthcare system.”



Some conservative lawmakers have expressed concern about congressional authority to pass H.R. 5, but that concern has yet to stop any of them from voting for it. During the House Judiciary Committee debate of H.R. 5 in February, Republican Reps. Louie Gohmert Louis (Louie) Buller GohmertHouse in near-unanimous vote affirms peaceful transfer of power House rebuffs GOP lawmaker's effort to remove references to Democrats in Capitol Rep. Dan Meuser tests positive for COVID-19 MORE and Ted Poe Lloyd (Ted) Theodore PoeSheila Jackson Lee tops colleagues in House floor speaking days over past decade Senate Dem to reintroduce bill with new name after 'My Little Pony' confusion Texas New Members 2019 MORE, both from Texas, expressed wariness of H.R. 5. Poe said, “I’ve got problems with that. I think it’s a violation of the Tenth Amendment, and I don’t believe the federal government has any more authority to regulate healthcare under the Commerce Clause than it does to regulate liability caps in states under the Commerce Clause.” Despite this, both Gohmert and Poe voted in favor of the bill.



Along with their push for states’ rights, conservatives typically also argue in favor of a free market system to support a smaller federal government role. If viewed fairly – and not through a hypocritical lens to restrict individuals’ rights and protect businesses over consumers – the tort system is a free-marketer’s dream. It allows medical providers to operate with less affirmative regulation and advances public safety instead by the simple requirement that providers behave reasonably.



Under this arrangement, the healthcare industry is free to pursue its economic interests and is generously compensated for accuracy, creativity and entrepreneurship. However, when doctors, hospitals or pharmaceutical companies fail to act reasonably and harm people, they are held accountable for the harm.



H.R. 5 would skew these economic incentives. Due to the bill’s restrictions, qualified lawyers would have to turn down meritorious cases because any recovery would likely be insufficient to make up for the expense of the litigation. Even worse, bad doctors who commit medical malpractice would be rewarded.



Support for H.R. 5 among purported conservatives has nothing to do with adhering to particular principles. It is largely about giving handouts to powerful friends in the medical industry.



Christine Hines is consumer and civil justice counsel at Public Citizen's Congress Watch. Micah Hauptman is a researcher for Public Citizen’s Congress Watch.

