Widespread Opposition to H.R. 5 Grows

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For Immediate Release: May 23, 2011

Contact: Michelle Widmann
202-965-3500 x8369
AAJ Press Room


Widespread Opposition to H.R. 5 Grows

Leading constitutional law scholar Randy Barnett joins legal experts, consumer groups, patient advocates in opposing extreme medical liability legislation

Washington, DC—Randy E. Barnett, one of the nation’s leading constitutional law scholars and a senior fellow at the Cato Institute, penned an op-ed in the Washington Examiner this weekend slamming H.R. 5, the “Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011,” as an unconstitutional federal overreach.

Barnett is a constitutional law professor at Georgetown Law Center and a leading voice and adviser to the attorneys challenging the Affordable Care Act.  Barnett argues in the op-ed that H.R. 5 amounts to a federal government takeover of an issue that has always been decided by the states.

“This bill alters state medical malpractice rules by, for example, placing caps on noneconomic damages. But tort law — the body of rules by which persons seek damages for injuries to their person and property — have always been regulated by states, not the federal government. Tort law is at the heart of what is called the ‘police power’ of states.  What constitutional authority did the supporters of the bill rely upon to justify interfering with state authority in this way?

“Constitutional law professors have long cynically ridiculed a ‘fair-weather federalism’ that is abandoned whenever it is inconvenient to someone’s policy preferences,” continues Barnett.  “If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers ‘reserved to the states’ as affirmed by the Tenth Amendment, they will prove my colleagues right.”

Barnett is the latest prominent voice to join a chorus of opposition to H.R. 5.  In addition to Barnett, the American Bar Association, constitutional scholar Rob Natelson of the Independence Institute, and the National Conference of State Legislatures have all cited states’ rights and federalism concerns for opposing H.R. 5.  Numerous consumer and patient safety groups have also written Congressional leadership to speak out against this extreme legislation.

The full text of the op-ed can be found here: http://washingtonexaminer.com/opinion/op-eds/2011/05/tort-reform-and-gops-fair-weather-federalism

Barnett also offers additional analysis of H.R. 5 at the Volokh Conspiracy here:  http://volokh.com/2011/05/22/double-deference-and-the-house-gops-fair-weather-federalism/


H.R. 5 would take away legal rights of injured patients by:

  • Imposing a one-size-fits-all $250,000 cap on non-economic damages that injured patients can seek;
  • Extending this cap to health care providers that intentionally harm or kill patients, as well as insurance companies that refuse to pay just claims for medical bills;
  • Limiting the right to seek justice when injured by a defective medical device, drug, or abuse suffered in nursing homes.

To learn more about H.R. 5, visit www.justice.org/medicalnegligence.

As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.

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