NCPA - National Center for Policy Analysis

Medical Freedom Zones

December 6, 2011

Both the federal and state governments hamper doctors' ability to innovate in medicine and to offer more affordable or alternative care.  While the federal government delays innovative medicine, state governments make affordable care more difficult by limiting the number of doctors and saddling those who do practice with difficult liability rules.  Similarly, the ability of care providers and patients to fashion their own agreements governing medical procedures is entirely hamstrung through state regulation, say Benjamin Barr and Stephen Klein of the Wyoming Liberty Group.

To respond to this growing problem and to take advantage of potential market gains, state governments should consider establishing a medical freedom zone within their border: a demarcated area in which medical innovation is encouraged, traditional regulations are limited, and patients and doctors are able to agree to tailored contracts.  In creating such a zone, it is possible that a state could grab a substantial market share of the medical tourism industry, which sent more than 500,000 Americans abroad in 2008.

For a medical freedom zone to be successful, however, its sponsoring agent will have to surmount a number of legal obstacles.  First and foremost, the state will need to insulate itself from the overarching authority of the federal government, relying upon the clout of the 9th amendment.  Simultaneously, several stumbling blocks from among the states will also have to be hurdled.

  • State laws restricting tailored contracts should be curbed such that doctors and patients are able to not only innovate in medicinal treatment but also in patient-physician relations.
  • Meaningful tort reform will need to be considered, especially provisions that would limit non-economic damages and cap punitive damages.
  • Finally licensing procedures should be revisited such that barriers to entry in the field can be reduced and state limitations can be scaled back.

A jurisdiction that is willing to fight the inevitable legal battles associated with this endeavor will undoubtedly reap benefits.  With such a large amount of money traveling abroad in medical tourism, the potential financial gains are substantial for a state.

Source: Benjamin Barr and Stephen Klein, "Medical Freedom Zones," Wyoming Liberty Group, November 2011.

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