During the last campaign cycle did Iowans ask for their legislators to limit damages companies are liable for? I am perplexed by the push and number of bills seeking to put caps in place for civil liability claims for various industries the past two sessions while on the contrary for the past three years, the citizens of Iowa were told we cannot protect your right to your private property, your body, during the pandemic by implementing legislation blocking vaccine mandates in the workplace because of the rights of private business. Apparently, now it is ok for the government to intervene for private businesses when they can’t afford their liabilities in the event they make a serious error and harm Iowans?
These bills truly bring up the question we all need to consider,” what is the role of government”? The primary role most citizens know is to protect our rights from government infringement. How then is reigning in medical malpractice claims or errors caused by truckers the role of government? How are these bills limited or conservative government solutions? Additionally, aren’t these bills interfering in the roles of each branch of government? Why is the legislature playing judge and jury when that role is supposed to belong to the people and the judicial branch?
While this article goes into more specifics regarding medical malpractice, the same considerations need to be applied to other bills seeking to achieve similar results, help from the government to limit liabilities while sacrificing individual liberties. The history behind medical malpractice reform dates back to the early 2000s when President George W. Bush pushed Congress to put caps in place on noneconomic damages for medical errors under the premise medical malpractice insurers were going to “leave the market”. Ironically, this is the same premise used in the early 1980s by pharmaceutical companies for why they needed immunity from liability for vaccine injuries because otherwise they would be forced to “leave the market.” Since that reform took place the US taxpayer has paid out more than $4.9 billion to children and adults injured by those on the vaccine schedule. As for medical malpractice, the senate blocked the passage of the Federal Med Mal reform bills forcing the industry to turn its attention to the state level to get caps on damages put into place. So far 28/50 states have implemented some form of a cap.
Several of these state laws have been challenged in court as being unconstitutional; violating equal protection, due process, right to a jury trial, and access to courts. In some of these cases, the courts based their verdict of the statutes being unconstitutional due to the lack of sufficient proof that caps would reduce liability insurance premiums. Ultimately, caps would impact the most egregious cases of medical injury, the cases that need justice the most.
Since the main justification to support the need for this legislation stems from the focus on improving “rural healthcare access” and “recruiting doctors”, the real question is why are these bills the PRIMARY solution being proposed? Why are we not removing previously passed burdensome regulations, looking at increasing the Medicare reimbursement rates, addressing certificate of need laws to open up the market, or licensing other types of modalities to provide greater choice and access to rural Iowans? Couldn’t we evaluate how the COVID policies lead to bullying and termination of some health care providers and its impact on recruitment? Won’t passing this law just incentivize providers to continue harmful actions rather than making them correct faulty policies and practices by bearing the consequences of their decisions? What about investigating the plummeting birth rate as a contributing factor for failed attempts to keep a birth center open rather than a quantum leap assumption to the lack of caps being the issue? Keep in mind nothing in this legislation forces the insurers to pass along savings to the providers or to us the citizens and multiple case studies have shown that caps have little to no effect on reducing healthcare costs.
Regardless, as Iowans who care about the constitution and the rights protected by it, we must ask ourselves the very important question “Are these bills truly the role of government in protecting our rights?” Will we be sacrificing our liberty to a fair trial for an egregious medical injury to protect bad providers, faulty policies, entire industries, that may only use this to further cap ALL damages in the future as some states have already done? If you answered no to this being the government’s role or no to wanting to further limit your liberties, then we must inform our elected representative and senator to vote No on these bills as they take the floor this week. (HF161/SF148)
Gfell, Kevin J. “The Constitutional and Economic Implications of a National Cap on Non-Economic Damages in Medical Malpractice Actions.” Ind. L. Rev. 37 (2003): 773.
Nelson LJ. Tort Reform in Alabama: Some Constitutional Issues. Alabama Law Review. 1989;40:533–73
NAIC Countrywide Summary of Medical Professional Liability Insurance-Calendar Years 2009-2018
“The Insurance industry never promised that tort reform would achieve specific premium savings.”-American Insurance Association, March 13, 2002