The American Spectator

p> UNCONSTITUTIONAL MEDICINE br> Re: Robert A. Levy’s Constitutional Malpractice : /p>

Robert A. Levy made several excellent points about congressional abuse of its enumerated powers in his article. It seems that Congress has never asked the question, “Is there any constitutional basis for this legislation?”

Mr. Levy unfortunately oversimplifies the medical malpractice issue in this context. Starting in 1972, and again in 1976, 1982 … etc. the Congress passed legislation enabling managed care insurance companies, HMOs, to begin their slow march towards dominance of the insurance industry. These are national companies, regulated and protected by the federal government. Much of this regulation allows them to set prices and prevent physicians and hospitals from passing along cost increases (malpractice insurance) to the purchaser of these services. A large part of the “malpractice crisis” is rapidly rising premiums and the inability to pass this cost along to the consumer. This situation was created by the federal government, even if unconstitutionally.

Secondly, medical malpractice insurance is “commerce and it is interstate.” Much of the recent crisis involves reinsurance. State insurance carriers purchase reinsurance to protect themselves from large losses. These reinsurance sellers are large regional, national and even international insurers. In Virginia recently, the Doctors Reciprocal Insurance Company was placed in technical default because of reinsurance issues in Tennessee. This left many Virginia doctors without insurance. Once again, federal regulations have interfered with the marketplace. HR 5 might reduce the reinsurance crisis by allowing actuaries to calculate risk and possible liabilities instead of the uncertainty of possible huge multimillion-dollar payouts.

p>The real crisis is only corrected with comprehensive tort reform. Just as the argument between the House and Senate over a $350 billion versus $550 billion tax cut is ridiculous so is this liability Legislation. We should be arguing between a 15% and 17% flat tax rate after having thrown out the entire income tax code as it now exists. Similarly, the entire malpractice and tort process should be thrown out. I favor a “malpractice court” system allowing injured parties to be compensated, negligent physicians to be identified and corrective measures taken, and horribly greedy, rich, unethical trial lawyers to be hired as public defenders. Federalists need not worry, HR 5 will not work. Only a comprehensive overhaul of all interrelated federal interventions (see HIPPA, CLEA, EMTAL, OSHA, National Data bank, HMO protections, Sherman anti-trust act, etc.) will allow real improvement in our ability to provide reasonably priced, quality medical care. br> — Michael R. Warner , MD, MBA /p> p>