Congress Prescribes Preemption of State Tort-Reform Laws to Remedy Healthcare "Crisis": An Improper Prognosis?

Abstract

Say what you want about the tort-reform debate, but it has staying power. Over the last half-century, legislators and commentators have extensively debated every aspect of tort reform and the litigation "crisis" arguably giving rise to it, without resolving much of anything. Despite this ideological stalemate, tort-reform proponents have managed to push measures through every state legislature. With fifty tries come fifty results, and for the most part, fifty failures. But have all these efforts been in vain? As of yet, no. Although the healthcare system does not appear to be improving, the numerous tort-reform measures states have adopted provide valuable insight into the litigation crisis, even (perhaps especially) when those measures have no effect. But Congress is impatient, one of its many child-like qualities. In June 2017, the United States House of Representatives passed H.R. 1215--The Protecting Access to Care Act of 2017 (PACA). If enacted, PACA would impose comprehensive tort reform on states and, in many cases, preempt similar state laws currently in effect. For many legislators, regardless of political affiliation, this understandably raises federalism concerns. To appease these concerns, PACA's drafters included provisions that appear deferential to similar state laws. However, when considered in context with the rest of the bill, PACA would likely preempt many state tort-reform provisions. This Article focuses on two PACA sections--the affidavit-of-merit section and the expert-witness-qualifications section. PACA adopts both sections from existing state statutes that have proven controversial and resulted in arguably absurd results. By analyzing state approaches in both areas, this Article concludes that these sections of PACA would preempt all similar state laws, setting a uniform federal standard. This uniformity, however, would come at a high price--an unprecedented encroachment on states' rights in an area of traditional state regulation. Further, the inequitable and absurd results occurring in these states would occur nationwide if PACA is enacted.