CONGRESS PRESCRIBES PREEMPTION OF STATE TORT-REFORM LAWS TO REMEDY HEALTHCARE "CRISIS": AN IMPROPER PROGNOSIS?

• Author: Sheffield, Jason C.

1. INTRODUCTION 29 II. BACKGROUND 30 A. The Litigation "Crisis" and Tort Reform 30 B. The Tort-Reform Movement: A Scorched Earth Campaign 32 C. The Effect on Doctors: Defensive Medicine as a Justification for More Tort Reform 33 D. State Certificate of Merit Statutes 34 E. Survey of State Certificate of Merit Statutes 37 1. Substantive Elements of Certificates of Merit 37 2. Time of Filing 41 F. State Expert Witness Qualifications Statutes 43 1. Heightened Expert Witness Qualifications Provisions 43 III. THE PROTECTING ACCESS TO CARE ACT OF 2017 47 A. PACA's Affidavit of Merit Section 47 B. PACA's Expert Witness Qualifications Section 48 C. PACA's "State Flexibility" Provisions 48 D. Both Sections are Based on Existing State Statutes 49 IV. PACA WOULD PREEMPT ALL STATE CERTIFICATE OF MERIT AND EXPERT WITNESS QUALIFICATIONS STATUTES 50 A. Federal Supremacy and Preemption of State Law 50 B. PACA's Preemption Scope 52 C. Extent to Which State Statutes Will Be Preempted 55 1. PACA Will Preempt All State Certificates of Merit 55 2. PACA Will Preempt Most Expert Witness Qualifications Statute 55 3. PACA's Negative Effects 56 V. CONCLUSION 57 I. INTRODUCTION

   "Extreme remedies are very appropriate for extreme diseases" --Hippocrates The healthcare system is diseased. The symptoms are well known: increasing healthcare costs, dwindling numbers of doctors and specialists, less access to care, and a poorer quality of care. But as anyone who has ever used WebMD knows, a single set of symptoms can indicate anything from a common cold to the bubonic plague. It is important, then, to determine the healthcare system's disease before prescribing a treatment plan. With the Protecting Access to Care Act of 2017 (PACA), Congress has proposed an extreme remedy to combat the healthcare system's symptoms, but it has misdiagnosed the disease.

   The U.S. House of Representatives passed PACA in June 2017 with the express purpose of "improv[ing] patient access to health care services and provid[ing] improved medical care by reducing the excessive burden the liability system places on the health system." (2) Congress has identified the symptoms--decreased patient access to care due to exorbitant healthcare costs. But what is the remedy? According to the House, it is comprehensive federal tort reform. Implicit in this prescription, Congress diagnosed the disease--medical malpractice plaintiffs.

   PACA includes several state tort-reform measures popular with tort-reform proponents, including a noneconomic damages cap and a shortened statute of limitations. (3) This Article, however, focuses on two interrelated sections incorporated into PACA via an amendment introduced on the day it was passed in the House--the affidavit of merit section and the expert witness qualifications section.

   An affidavit of merit (4) is a tort-reform measure requiring medical-malpractice plaintiffs to file an affidavit (either before, contemporaneously with, or shortly after filing a complaint) signed by an expert or the plaintiff's attorney attesting to the expert's belief that the case is meritorious. (5) Currently, twenty-seven states require a certificate of merit in medical-malpractice cases, but each state takes a different approach. (6) Some states also increase the requirements an expert must possess before qualifying to sign the affidavit, often requiring that the expert practice or specialize in the same medical field as the defendant. (7)

   PACA includes an express preemption clause in both the affidavit of merit and expert witness sections. Although these provisions are titled "State Flexibility," neither preemption clause is flexible in its application to state law. By using vague language, these sections initially seem to defer to state law and appear to merely establish a legislative floor. However, when compared to similar state statutes, it becomes clear that the drafters intended to establish both a floor and a ceiling, preempting every state law currently in effect.

   This Article argues that because no state certificate of merit approach has proven superior to others, mandating a uniform federal standard is unsound policy. If and until a certain approach proves effective, Congress should not foreclose states from experimenting with different tort-reform measures. Further, PACA's preemption provisions will confuse state courts interpreting PACA's preemption scope, creating disparate holdings across jurisdictions. Finally, PACA's expert witness qualifications section will cause absurd results that could otherwise be avoided.

   Section II details the development of tort-reform in the states, provides a survey of state certificate of merit and expert witness statutes, and discusses some recurring issues associated with these state statutes. Section III examines PACA's affidavit of merit and expert witness qualifications sections. Section III also breaks down both PACA sections into several core elements used in the preemption analysis in Section IV. Section IV concludes that despite preemption language disguised to appear deferential to state law, PACA would preempt every state certificate of merit and expert witness qualifications statute currently in effect. Section IV also discusses the negative ramifications of this result. Section V is a brief conclusion.

2. BACKGROUND

   1. The Litigation "Crisis" and Tort Reform

      Terms like "litigation crisis," "insurance crisis, and "medical malpractice crisis," refer to the modern public perception that frivolous litigation is rampant in the United States and substantially burdens our society. (8) Over the last four decades, several of these so-called crises have garnered heavy attention from the media and politicians, both at the state and national levels. Tort reform measures are legislative responses to these purported crises. This section briefly examines the origins of the tort-reform movement, its goals (both express and actual), and some empirical studies that call the movement's efficacy into question.

      The first litigation crisis occurred in the mid-1970s, followed by subsequent crises in the 1980s and early 2000s. (9) In response, state legislatures enacted tort-reform measures aimed at limiting personal injury claims and recovery of damages by plaintiffs. (10) By the mid-1980s, more than forty states had enacted tort-reform measures. (11) And states with tort reform already in place were not hesitant to enact more. In 1986 alone, forty-one states enacted tort reform legislation. (12) In 1988, the Republican party made tort reform part of its national platform, and it has remained there ever since. (13) Today, every state has enacted or elected tort-reform measures. (14) Thus, tort-reform proponents have been extremely successful in getting tort reform enacted at the state level. But that does not mean tort reform itself has been successful.

      Proponents claim that tort reform is necessary to lower skyrocketing medical insurance premiums on doctors caused by an increased rate of personal injury lawsuits. (15) High insurance premiums, they argue, cause a decrease in physician supply and a lower quality of care for patients. (16) Tort reform is thus a means to an end, the end being lower medical insurance premiums and better healthcare. (17) To accomplish this end, tort-reform measures aim to reduce the overall volume of litigation and the amount of damages awarded in the suits that are filed. (18) In this respect, studies seem to indicate that tort reform has been wildly successful at accomplishing the means towards its end.

      Tort filings have decreased significantly in the last several decades, as have jury awards in cases in which the plaintiff prevails on the merits. For example, a study by Scott DeVito and Andrew Jurs found that states enacting noneconomic damage caps resulted in total tort filings decreasing by 18% and medical malpractice filings decreasing by 86%. (19) Other studies show drops in damage awards of 30% or more. (20) Findings like these could lead one to conclude that tort reform proponents are right about both the problem and the solution. However, other data calls both of those conclusions into serious question.

      In addition to examining the results occurring when states enact a noneconomic damages cap, Devito and Jurs also looked at what happened in states that had no such cap during the same period. They found that in these states, total tort filing decreased by 26% in the 1990s and another 27% in the 2000s. (21) Similarly, medical malpractice filings dropped 18% during the 1990s and 24% in the 2000s. (22) Other studies show similar patterns between states that had adopted tort reform and those that had not. (23) These studies indicate that individuals with meritorious tort claims are less likely to sue than in previous decades, regardless of whether their state has enacted tort reform.

      An even more surprising finding by DeVito and Jurs is what happened when a states noneconomic damages cap was nullified by the state's high court. They theorized that eliminating the caps would lead to tort filings rebounding to pre-cap levels. (24) However, they found that the opposite occurred--tort filings further decreased in these states after the caps were eliminated. (25) While this is initially surprising, it becomes less so when considered in context with the way in which proponents were able to enact such pervasive tort-reform measures in the first place.

   2. The Tort-Reform Movement: A Scorched Earth Campaign

      From a political perspective, tort reform is a partisan issue. Republicans and conservatives are for it, and democrats are against it. But tort reform was around long before the Republican party added it to its platform in 1988. As it turns out, looking at the origins of the tort-reform movement illuminates its underlying validity or lack thereof.

      The tort-reform movement may have actually started as early as the 1950s, but it began accelerating in the 1960s and 1970s. (26) Among the...