While many states have come a long way in advancing medical liability reform for the benefit of their patients – Texas and California come to mind – far too many states have taken no action at all, and a patchwork of state laws have led to either an outpouring or influx of physicians, depending on the friendliness of the state’s liability climate.

In this month’s Suffolk Law Review, Paul Taylor, Chief Counsel of the House Judiciary Committee’s Subcommittee on the Constitution, explores why federal tort and liability reform is not only legal – but necessary.

Taylor writes, “Madison predicted that, in the future, citizens would see the rise of new forms of rules and regulations in the states that would increase the costs of things nationwide, and that Congress would need its Commerce Clause authority to counter those cost-increasing influences.” Additionally, “The relatively recent rise in virtually limitless tort liability, regarding both products and professional liability, is one future variant of state systems that restrict Americans’ access to goods and services in national, private markets…[and] with the creation of an insurance system, courts began to increasingly foist liability on those with insurance regardless of fault, including vital specialists like doctors, with huge awards for unquantifiable and often arbitrary damages such as those for emotional distress and pain and suffering.”

Taylor concludes that the Commerce Clause gives Congress the power to remove or supersede state barriers that impede and weaken our national economy – as medical lawsuit abuse and the practice of defensive medicine by physicians do.

“Under such circumstances, Congress can enact uniform rules to better administer free commerce among the states,” Taylor states.

While the House passed comprehensive liability reform last month, the legislation has yet to be taken up in the Senate. To read the full law review piece in support of federal tort and medical liability reform efforts, click here.