This commentary responds to the essay by Elliott, Narayan, and Nasmith wherein they propose that the federal government may preclude plaintiffs with medically inflicted injuries from bringing state common-law tort claims against those whose negligence caused their injury. The administrative system championed by Elliott and other proponents is a radical departure from the current civil justice system. Specifically, we argue that the administrative health courts, as proposed, violate the commerce clause, the spending clause, the Seventh Amendment, and separation of powers principles. The commentary concludes that such a system is fatally flawed and cannot withstand constitutional scrutiny. Moreover, we are not persuaded that Congress will be able to ground such a radical constitutional restructuring in any sound public policy, as the majority of studies do not evidence Elliott, Narayan, and Nasmith's presumption that the civil justice system has failed in the medical malpractice context.
Federal Administrative Health Courts Are Unconstitutional: A Reply to Elliott, Narayan, and Nasmith
Amy Widman, Francine A. Hochberg; Federal Administrative Health Courts Are Unconstitutional: A Reply to Elliott, Narayan, and Nasmith. J Health Polit Policy Law 1 August 2008; 33 (4): 799–832. doi: https://doi.org/10.1215/03616878-2008-016
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