Could the 14th amendment help reduce medical malpractice suits?
In this article on tort reform, Robert Levy explores in more detail than I’ve ever seen the various constitutional arguments for an against a federal tort reform solution. He ultimately rejects the commerce clause as inapplicable. Instead, he sees huge punitive damages as a due process violation of the fourteenth amendment. It is a novel and fascinating avenue of attack. He argues that while punitive damages serve the same purpose as criminal penalties, they have different standards of proof (preponderance rather than no reasonable doubt) and the availability of double jeopardy (in a civil suit you can be tried many times for the same act). As such, congress could use its powers to “enforce, by appropriate legislation, the provisions of this article” to protect victims due process violations in the form excess punitive damages by capping such damages or introducing a criminal standards for their application.
