There are more than enough reasons to fear PEOTUS Trump’s pick for Health and Human Services Secretary, Georgia Congressman Tom Price. That includes his “plans to slash Medicare and Medicaid, which cover tens of millions of elderly, disabled and low-income Americans.” He also wants to “tear apart” the Affordable Care Act – even the part requiring insurers to sell insurance to those with pre-existing medical conditions.
And here’s what else he wants: "tort reform." This is nothing new, of course. While a leader in the Georgia legislature, he was a lead proponent of legislation to brutally limit compensation to injured patients, which the Georgia Supreme Court considered unconstitutional, violating the constitutional right to jury trial.
Price’s ACA replacement bill, H.R. 2300 (the so-called “Empowering Patients First Act”), which he first introduced in 2009 and in every subsequent Congress, would cruelly strip injured patients of their legal rights and interfere with local jury trials – not just in Georgia but everywhere! His bill is loaded up with lots of traditional “tort reforms” like abolishing joint and several liability, changing state statutes of limitations and prohibiting lump sum payments to patients who win their case. But his bill would do more.
His bill would empower the U.S. Secretary of Health and Human Services – i.e., him - to select and issue guidelines for the treatment of all medical conditions. (King George III could have learned something from this guy!) And then the bill would provide strong legal incentives for physicians to follow such guidelines even though they may result in harming or killing patients.
Guidelines actually would be written by medical and specialty societies, which are inherently biased in their views about liability and now would write guidelines for the express purpose of exonerating their fellow physicians. Meanwhile, his bill would prevent patients from using those same guidelines to prove negligence, raising quite very disturbing questions of fairness and constitutionality.
And there’s more. If a patient suffered malpractice and decided to go to court, they would first have to prove their case in a system that is deliberately structured to be biased against the patient. First, the patient would have their case decided by a panel of medical industry “experts” and then by a medical tribunal with little or no input from the patient because the patient would be prevented from conducting discovery. These panels would decide liability, whether a guideline breach led to the patient’s injury and compensation. If the patient then wanted to exercise their constitutional right to go to court, they would face nearly impossible evidentiary obstacles. And imagine the costs of having to go through all that? Plus, given the substantial weight to which the tribunal’s finding would be entitled in court, it is clear that the process is intended not to assist the courts but rather to entirely usurp the role of unbiased judges and juries.
As the New York Times wrote, “It is impossible to know which parts of Mr. Price’s agenda will become priorities for the new administration [and the timing is clearly up in the air]. But we do know that he will now have a very powerful perch from which to advocate his radical positions.”
In the immortal words of King George III (Hamilton edition, of course): ”You say, the Price of my love’s not a Price that you’re willing to pay.”