Why Support Civil Suits For Social Issues But Not Medical Malpractice



The fervor with which many of my fellow Republicans support a nationwide limit on awards in medical malpractice lawsuits masks a deep schizophrenia inside Republican circles. For even the most ardent opponents of trial lawyers and civil suits in medmal cases flip-flop to SUPPORT civil suits to protect First Amendment rights and for lawsuits related to selected social issues. And the bills don’t cap damages, override state law, or set a cap on the attorneys’ fees, unlike H.R. 5, the bill before the House this week to severely limit medmal suits.

On February 28, the House agreed, by a simple voice vote, to pass H.R. 1433, the “Private Property Rights Protection Act of 2012,” which assists private property owners subject to abusive eminent domain actions by local governments. The official summary of the bill states that it “establishes a private cause of action for any private property owner or tenant who suffers injury as a result of a violation of this Act.” Moreover, the bill also prohibits state immunity againsg civil actions in federal or state court. I covered that bill here from its inception last year, and was astonished with the dedication that anti-medmal-lawsuit Republicans gave to protecting private property rights through civil suits brought by trial lawyers.

The abortion issue and the conscience protection issue arising from the enforcement of Obamacare mandates have led to numerous bills in which one or more parties with an interest are invited to file civil suits.

For instance, H.R. 3802, the “National Pro-Life Waiting Period Act of 2012,” prohibits an abortion provider from performing an abortion without waiting 24 hours after obtaining a written certification from the pregnant woman certifying the date and time of her first in-person meeting with the provider to seek the abortion. The bill enables the pregnant woman, or the parents/legal guardians of a pregnant minor, to sue the abortion provider if an abortion has been performed in violation of this Act. I know if at least three other pro-life bills introduced in this session of Congress that enable civil suits against abortion providers, including H.R. 3541, the “Prenatal Nondiscrimination Act,” which prohibits an abortion based on the sex, gender, color or race of the child, or the race of a parent of the child, about which I posted on February 9.

And virtually all of the conscience protection bills introduced in reaction to the Obamacare mandates enable a private right of action. The bill drawing the most attention, sponsored by Sen. Roy Blunt and titled the “Respect the Rights of Conscious” amendment to the Senate highway bill, established a private right of action (by any “persons or entities protected”) to assert a violation of this section as a claim in a civil suit. The “persons protected” could have been anyone from a provider of a health care insurance plan to a beneficiary. That amendment was not approved by the Senate.

I have no personal objection to Congress creating private rights of action for any of these causes. The Founding Fathers believed in open courtrooms for all Americans to defend their God-given rights. But it’s hypocritical to do so in these instances, and then turn right around to deny access to the courtroom for someone injured through medical malpractice.

Why should doctors and hospitals be granted special protection in federal law when states and municipalities are told they might have to pay damages for violating our civil rights?