Malpractice reform at the federal level is incomprehensible. Since medical malpractice is mostly state common law, how would that work? It would mean that the federal legislature would have to have the ability to abrogate the common law of all the states. To do so, they would have to have a federal law. And, if there is a federal law, all malpractice cases would be federal cases, to be tried in federal court as a federal question.
If it is claimed that it’s doable under the interstate commerce clause, then automobile accidents fall under the commerce clause as well. If automobile accidents are able to be regulated federally, every other tort imaginable is subject to the federal reach. If, under the commerce clause, the federal legislature it can preempt all state common and statutory law, it virtually dissolves state judiciaries — nothing they say on federal tort law is binding. In other words, the state judiciaries would be dissolves along with the states as sovereign entities.
I hate to side with the tort lawyers but I think every one of these federal legislators who yammers on about medical malpractice reform knows it’s impossible to do federally. I’m afraid that a lot of them on our side engage in this deception.