The Medical Malpractice Myth
Tom Baker
Medical malpractice premiums are skyrocketing. "Closed" signs are sprouting
on health clinic doors. Doctors are leaving the field of medicine, and those
who remain are practicing in fear and silence. Pregnant women cannot find
obstetricians. Billions of dollars are wasted on defensive medicine. And
angry doctors are marching on state capitols across the country.
All this is because medical malpractice litigation is exploding. Egged on by
greedy lawyers, plaintiffs sue at the drop of a hat. Juries award
eye-popping sums to undeserving claimants, leaving doctors, hospitals, and
their insurance companies no choice but to pay huge ransoms for release from
the clutches of the so-called "civil justice" system. Medical malpractice
litigation is a sick joke, a roulette game rigged so that plaintiffs and
their lawyers' numbers come up all too often, and doctors and the honest
people who pay in the end always lose.
This is the medical malpractice myth.
Built on a foundation of urban legend mixed with the occasional true story,
supported by selective references to academic studies, and repeated so often
that even the mythmakers forget the exaggeration, half truth, and outright
misinformation employed in the service of their greater good, the medical
malpractice myth has filled doctors, patients, legislators, and voters with
the kind of fear that short circuits critical thinking.
This fear has inspired legislative action on a nationwide scale three times
in my lifetime. The first time was back in the mid-1970s. I remember sitting
at the dinner table listening to my father report what he'd heard at his
medical society meeting: "Medical malpractice insurance premiums are going
through the roof. Frivolous litigation and runaway juries will drive doctors
out of the profession." The answer, the medical societies and their
insurance companies said, was medical malpractice tort reform-to make it
harder for misguided patients and their lawyers to sue.
What the medical societies did not tell my father, or almost anyone else,
was that their own research showed that the real problem was too much
medical malpractice, not too much litigation. In the mid-1970s the
California Hospital and Medical Associations sponsored a study on medical
malpractice that they expected would support their tort reform efforts. But,
to their surprise and dismay, the study showed that medical malpractice
injured tens of thousands of people every year-more than automobile and
workplace accidents. The study also showed that, despite the rhetoric, most
of the victims did not sue. But almost nobody heard about the study because
the associations decided that these facts conflicted with their tort reform
message.
Two years after they achieved their goal of enacting restrictive medical
malpractice tort reform in California, the associations printed the results
of the study, but only as an association report. All that was published for
outside consumption was a technical summary, which did not feature the
dramatic findings. The report was not widely distributed, and it was written
in exceptionally dry and technical language.
The next time I heard about frivolous litigation and runaway juries driving
doctors out of practice was while I was in law school in the mid-1980s.
Medical malpractice premiums were back through the roof. And, once again,
the answer from the medical societies and their insurance companies was tort
reform: raise the bar on getting into the courthouse and, in many states,
limit what juries could do once victims got inside.
That time, more people were skeptical about the claims of the medical
societies. But this was the 1980s, and organized medicine still knew best.
Nobody had pulled together enough facts about medical malpractice
litigation. And hardly anyone knew about, or could have easily understood,
that buried California report. The result was a virtual avalanche of
restrictive tort reform legislation proposed-and often enacted-in
legislatures across the county.
The third time began in 2002 and continues today. This time around we have a
lot more information. But you would not know it from the tort reform
remedies that the medical societies, the hospitals, and their insurance
companies are pushing.
What do we know?
First, we know from the California study, as confirmed by more recent,
better publicized studies, that the real problem is too much medical
malpractice, not too much litigation. Most people do not sue, which means
that victims-not doctors, hospitals, or liability insurance companies-bear
the lion's share of the costs of medical malpractice.
Second, because of those same studies, we know that the real costs of
medical malpractice have little to do with litigation. The real costs of
medical malpractice are the lost lives, extra medical expenses, time out of
work, and pain and suffering of tens of thousands of people every year, the
vast majority of whom do not sue. There is lots of talk about the heavy
burden that "defensive medicine" imposes on health costs, but the research
shows this is not true.
Third, we know that medical malpractice insurance premiums are cyclical, and
that it is not frivolous litigation or runaway juries that drive that cycle.
The sharp spikes in malpractice premiums in the 1970s, the 1980s, and the
early 2000s are the result of financial trends and competitive behavior in
the insurance industry, not sudden changes in the litigation environment.
Fourth, we know that "undeserving" people sometimes bring medical
malpractice claims because they do not know that the claims lack merit and
because they cannot find out what happened to them (or their loved ones)
without making a claim. Most undeserving claims disappear before trial; most
trials end in a verdict for the doctor; doctors almost never pay claims out
of their own pockets; and hospitals and insurance companies refuse to pay
claims unless there is good evidence of malpractice. If a hospital or
insurance company does settle a questionable claim to avoid a huge risk,
there is a very large discount. This means that big payments to undeserving
claimants are the very rare exception, not the rule.
Finally, we know that there is one sure thing-and only one thing-that the
proposed remedies can be counted on to do. They can be counted on to
distract attention long enough for the inevitable turn in the insurance
cycle to take the edge off the doctors' pain. That way, people can keep
ignoring the real, public health problem. Injured patients and their lawyers
are the messengers here, not the cause of the medical malpractice problem.
Jesica and Jeanella
No one who follows the medical news is likely to forget Jesica Santillan,
who died after a receiving a heart and lung transplant at Duke University
Hospital in February 2003. Brought to the United States from a poor Mexican
town in search of better medical care, she inspired her new North Carolina
community to raise money for a heart and lung transplant, and she inspired
people to care about the problem of the medically uninsured.
When she received the transplant, it turned out to be the wrong blood type-a
basic, easily avoidable, and tragic mistake. Her body began rejecting the
new organs even before the transplant surgery was over. Her supporters
launched a national public relations effort to find a second, compatible,
set of heart and lungs, while accusing Duke of trying to stifle their
efforts to avoid publicizing the mistake. She died shortly after receiving a
second transplant, less than two weeks after the first, while the whole
world watched.
At the same time, doctors, hospitals, medical liability insurance companies,
and their trade and professional organizations were mounting a fierce
campaign for tort reform all over the United States. Beginning in about June
2002 and reaching a peak in early 2003, the medical malpractice crisis
dominated the medical news. This, too, contributed to the attention on
Jesica: a public and almost impossible to understand mistake at a leading
medical center, at a time when doctors claimed that frivolous medical
malpractice lawsuits and outrageous jury verdicts were the problem.
Fewer people know that Jesica Santillan was actually the second girl in
seven months to die after receiving a transplant with the wrong blood type
at a prominent medical center. Jeanella Aranda was the first. She received a
transplant of part of her father's liver at Children's Medical Center in
Dallas in July 2002, allegedly after a surgical mistake in an earlier
operation had destroyed her own liver.
Due to a "laboratory mix-up," according to the New York Times, doctors
thought that her father's blood type was a good match, when it was actually
her mother's who matched. "The blood type mismatch was not detected until
Aug. 5, 19 days after the surgery, when Mrs. Aranda, who was aware that her
husband had type A blood, noticed that Jeanella's transfusions were Type O,
and asked whether the transplant had been a mismatch." Jeanella died on
August 6, 2002.
Shortly after Jesica died in February 2003, the Los Angeles Times linked her
story to Jeanella's while criticizing medical liability reform proposals in
Congress. "Communication errors of the sort that doomed Jesica and Jeanella
are all too common in medicine," the Times reported. The Times quoted
Carolyn M. Clancy, director of the federal Agency for Healthcare Research
and Quality, who said, "There's more double-checking and systematic
avoidance of mistakes at Starbucks than at most health-care institutions."
And the Times cited a survey published in the New England Journal of
Medicine, reporting, "Only 30% of patients harmed by a medical error were
told of the problem by the professional responsible for the mistake."
Jesica's and Jeanella's stories became even more tightly linked to the
medical malpractice debate when the families of both girls brought medical
malpractice claims. As far as I have been able to tell, no one called those
claims frivolous. Quite the reverse. Duke Hospital publicly apologized to
Jesica's family, offered to fund a new program in her name, and announced
that it had changed its organ transplant procedures. Children's Medical
Center appointed a new medical chief for its organ transplant program and
announced that it had adopted new policies and procedures "designed to
improve every link of the quality control chain." Both cases settled.
Throughout the medical malpractice crisis, leading newspapers carried
accounts of other obvious medical mistakes. Like the L.A. Times piece on
Jesica and Jeanella, the accounts often linked the particular mistakes to
the larger story about the extent of medical malpractice in U.S. health
care. The report by the Institute of Medicine of the National Academy of
Science, To Err Is Human, was a common source. That report summarized
research showing that nearly 100,000 people die in the United States each
year from medical mistakes-more than die from automobile and workplace
accidents combined.
Because of that research and reporting, public opinion is coming around to
the view that, distressingly, Jesica's and Jeanella's problems are not
unique; our health care system has a serious medical-injury problem. But at
the same time, public opinion remains firmly anchored to the view that we
have an explosion of what President George W. Bush calls "junk lawsuits" and
that medical malpractice lawsuits contribute significantly to the high cost
of health care in the United States.
Stories like Jesica's and Jeanella's helped shift public opinion about
medical malpractice only because they were linked to research and reporting
that reframed medical malpractice as a public health problem. But their
stories did not shift public opinion about medical malpractice lawsuits,
because they were not linked to research and reporting that reframed
malpractice lawsuits as a public good.
Like any durable and effective myth, the medical malpractice myth can
accommodate almost any number of real-life examples that conflict with the
myth-by classifying those examples as exceptions. Nobody but a researcher
has the time or inclination to go out and take a systematic look at medical
malpractice lawsuits in order to evaluate what is the rule and what is the
exception. Everyone else has to take individual examples as they come.
As a result, lawsuits like Jesica's and Jeanella's do not pose a serious
challenge to the myth. No one says that all the lawsuits are frivolous. But
everyone "knows" that most of them are. Even a regular drumbeat of contrary
examples does not call the myth into question, because the myth provides the
context in which we understand the examples, not the reverse. It is time to
change that context.
The Power of the Tort Litigation Myth
The medical malpractice myth is part of a larger story about the litigation
explosion, the litigiousness of Americans, and the debilitating effect that
lawsuits have on the U.S. economy. I have often encountered this larger
story in my work directing the Insurance Law Center at the University of
Connecticut School of Law in Hartford, Connecticut. We try very hard to get
university and insurance industry people to talk to each other. People in
universities call on me to find out what is happening in the insurance
industry, and people in the insurance industry call on me to find out about
the university research.
One good example came in the summer of 2003 when I was invited to speak to a
meeting of insurance company CEOs in London. My assignment was to provide an
overview of the academic research on how the U.S. tort system really works
and, in particular, to report on the substantial research debunking many of
the claims about the litigation explosion.
My host invited me to come to the whole meeting, even though my session was
near the end. I had never met a CEO from any significant company, let alone
an insurance company. For me, the chance to spend two days with dozens of
insurance company CEOs was quite an opportunity.
I used the time to meet and talk with quite a few of the CEOs, to see what
they were like and also to get a sense of what they were expecting to hear
from me. They were smart, hard-working people. They were at least as well
read and informed about current events as most of my university colleagues,
and on the whole they were more informed about what was happening in
countries other than their own.
I was surprised and a bit concerned, however, to find that almost everyone
assumed I was there to provide them with the latest research on the extent
of the litigation explosion and the particular ways in which the U.S. tort
system was out of control. At first I worried that they thought I had been
paid to tell them whatever they wanted to hear. (I had not been paid and,
even if I had, I would not have done that.) So I checked with my host to
make sure he knew what they were in for. He did. In fact, he was rather
looking forward to the fireworks.
My concerns addressed, I put on my participant observation research hat and
resolved to find out why the CEOs expected that from me. What I learned was
that they assumed I was there to talk about the out-of-control tort system
not because they thought I was paid to tell them what they wanted to hear,
but rather because they believed, intensely, that chaos was the real
situation.
That was interesting. I had always harbored a suspicion that insurance
industry leaders promoted the tort litigation myth despite what they really
knew to the contrary. Maybe some do, but not these people.
The CEOs were well informed about political and economic matters generally.
They were especially well informed about things that affect their business.
And the U.S. liability situation affects their business. So, as far as they
were concerned, if they thought that there was a tort litigation explosion
in the United States and if they thought that the U.S. tort system was out
of control, then that was how it was.
Whatever else anyone might think, their support for tort reform was not a
cynical effort to make money at the public's expense. While the CEOs did in
fact think that tort reform was in their industry's interest, the emotion
that fired them up came from belief-a belief that is not rooted entirely in
self-interest. The debate over the other major issue for which they brought
outside experts to their meeting (new international accounting standards)
was pale by comparison. Yet, in financial terms that other issue would have
a much bigger immediate impact on their business than liability reform,
especially for the life insurance CEOs, who are not even in the liability
insurance business. The CEOs tried to get fired up about it, but they could
not. Accounting rules simply do not plug into beliefs about right and wrong
in remotely the same way as tort liability.
They were concerned about the litigation explosion, not just because it
affected their business, but also because of the impact they expected it to
have on the larger economy and society. They were concerned about the United
States, where they saw the explosion originating, and Europe, where they saw
signs that it was spreading. They were looking forward to hearing from me so
they could better understand and treat this American disease.
In this regard at least, I am sure that I disappointed my audience. As I
reported to them, except for auto accidents and the occasional "mass tort"
situation like asbestos, Agent Orange, or breast implants, Americans
actually do not bring tort claims all that often, especially compared to the
number of accidents and injuries there are. We now have two decades of solid
research documenting this fact. What is more, the rate of auto lawsuits-the
most frequent kind of tort lawsuit-is going down. And, despite the media
focus on mass torts, products liability, and medical malpractice, those
kinds of cases are far less important in dollar terms than either auto
accidents or workers' compensation.
In 2003 U.S. businesses paid $27 billion for auto liability insurance
premiums, $57 billion for workers' compensation insurance premiums, and less
than $5 billion for products liability insurance premiums. Doctors,
hospitals, and other health professionals paid only about $11 billion in
medical malpractice insurance premiums. This means that the real insurance
money and the real claiming action for U.S. business does not lie in
high-profile areas like products liability and medical malpractice. The real
action lies in routine, below-the-radar areas like workers' compensation and
automobile lawsuits. U.S. businesses paid less than half as much for
products liability and medical malpractice insurance, combined, as they paid
for auto insurance, alone, and only a quarter of what they paid for workers'
compensation insurance.
Products liability and medical malpractice insurance look even less
significant compared to what ordinary Americans paid for personal auto
liability and no-fault auto insurance: $115.5 billion in 2003. That is more
than U.S. business paid for auto, workers' compensation, products liability,
and medical malpractice insurance combined. Adding all the premiums of all
the different kinds of liability insurance together results in a big
number-about $215 billion in 2003-but that number is hardly exploding, and
the medical malpractice insurance share-$11 billion-looks pretty small by
comparison. It looks even smaller next to the $1.5 trillion plus (that is
more than 1,500 billion dollars) we spent on health care that year.
Something that amounts to less than 1 percent of health-care costs simply
cannot have the impact on health care that the medical malpractice myth
would have us believe.
Even on a per doctor basis, that medical malpractice insurance number is not
as high as many people think. There were nearly 900,000 doctors in the
United States in 2003. That means that medical malpractice insurance
premiums were about $12,000 per doctor, and of course hospitals, dentists,
and other health-care professionals buy malpractice insurance, too. So the
average premium doctors paid was less. Some kinds of doctors have to pay
much more. Obstetricians are the best-known example. But there is a simple
insurance reform that will solve that problem, as I will explain in chapter
8.
Where Americans do excel in litigation is in the area of business lawsuits.
If you read the business section of the newspaper, you know that
B2B-business-to-business-sales are hot. So is B2B litigation. Some of the
business executives who complain about the litigation explosion must be
thinking about their own behavior. In one indication, the proportion of
lawyers who bring personal-injury lawsuits has remained steady since 1975,
while the share of lawyers involved in business litigation has more than
tripled.
I enjoyed the London presentation, and, as predicted, we had some vigorous
debate. Did I persuade the CEOs that the tort litigation explosion is a
myth? They did not get to be CEOs by lacking confidence, so they were not
shy about telling me what they thought. Some argued with me then. Some
continue to argue with me. But we are still talking. And their people are
reading the research.
I also told them, and I continue to repeat every chance I get, that they
should be careful what they wish for. What other industry asks the
government to reduce the demand for its product? Tame the tort system, and
hospitals and other big businesses will decide that they do not need
liability insurance. Take away the risk of a really big lawsuit, and a line
of credit is nearly as good as an insurance policy, and, with a line of
credit, you pay only for the credit you use. Once businesses can predict
their liability losses with enough certainty, a monthly savings plan is even
better, and it costs even less.
Who knows how long it will take me to convince them, if I ever will. But I
have already noticed a change in the rhetoric, from complaints about the
number of lawsuits to complaints about the size of the lawsuits. Complaints
about the size of lawsuits represent a real improvement, because at least
they have some basis in reality. Medical malpractice claims are getting
bigger. So are auto claims and workers' compensation claims. Of course, the
fact that claims are getting bigger does not mean that the tort system is
out of control. Tort claims are getting larger mostly because health care
costs more than ever before.
Putting the Medical Malpractice Myth in a Political Context
My interest in the medical malpractice myth grows out of a variety of
experiences that have nothing to do with politics. My father and
father-in-law are both doctors. I regularly teach tort law, the branch of
law that includes medical malpractice law. My field research on
personal-injury litigation introduced me to many lawyers on both sides of
medical malpractice lawsuits. And my role as the director of an insurance
education and research program virtually guaranteed that I would want to
understand the medical malpractice insurance crisis that broke out in 2002.
Despite the fact that my interest in medical malpractice is not political,
there is no avoiding the fact that medical liability reform has become a
very partisan issue. With some exceptions, Republican legislators favor
cutting back on tort liability and Democratic legislators do not. And over
the course of the last thirty years, tort reform has become one of the top
political objectives of groups like the Chamber of Commerce, the American
Manufacturers Association and other traditionally business-oriented trade
associations. These groups support medical liability reform as part of their
effort to limit tort law more broadly.
The effort currently underway in Washington to include pharmaceutical
companies and medical device manufacturers under the umbrella of national
medical liability reform shows how medical malpractice reform can pave the
way for broader efforts to limit liability. Pharmaceutical companies and
medical device manufacturers are not the target of medical malpractice
lawsuits. Instead they face the same kinds of product liability claims as
any other manufacturer. But their products are used in the medical field,
and therefore the medical liability reform tent may be big enough to hold
them, too-or so their Washington, D.C., lobbyists contend. From there, it is
a small step to limit liability in other areas, so that all defendants
receive equal treatment.
Doctors have conflicting interests in the larger political struggle over
access to the courts. On the one hand, efforts to limit medical liability
serve their long-term interest in self-regulation and professional autonomy.
As researchers from Harvard Medical School have explained, "Physicians and
their societies are actively resisting the legitimacy of the law as a means
of controlling and regulating the practice of medicine. . . . The profession's
organizations have invested extensive financial, cultural and political
resources to resist what both rank-and-file practitioners and the
professional collective regard as infringements on medical work."
On the other hand, doctors are consumers and, increasingly, employees and
independent contractors who work for large organizations. In these roles
they have a strong interest in maintaining access to courts.
These conflicting interests are playing out right now in my state of
Connecticut. On the one hand, our state medical society has been lobbying
the Connecticut legislature, hard, in favor of medical liability reform. On
the other hand, the society has filed lawsuits against several big health
insurance companies that doctors believe are not playing fair. After the
medical society achieved a favorable result in one of the lawsuits, I spoke
to their executive director, suggesting that there might be some irony in
their using the courts to advance doctors' interests-while at the same time
trying to limit what patients could do in court.
He explained that there is no conflict in the two positions: the medical
society's lawsuits involve different issues and different fields of law than
medical malpractice. I had to agree that he was correct in technical, legal
terms. But to my mind, the society is walking a tightrope. The skilled
artisans and craftsmen who formed the American Federation of Labor used to
think that they had more in common with businessmen than with the industrial
trade unions. They changed their view in the early part of the twentieth
century, when the expansion in the scope of manufacturing and construction
restricted their independence and control over the workplace. Will doctors
follow a similar path in the twenty-first century, when large health plans
place greater pressure on health-care providers to control costs and take a
more businesslike approach to health care?
Part of the art of politics is keeping supporters focused on the things they
agree upon so they don't break up the coalition by fighting about other
things. Tort reform is one issue on which doctors, health insurers, and most
businesses clearly agree. The medical malpractice myth helps to maintain
that alliance, by keeping rank-and-file doctors and the medical societies
completely committed to tort reform and grateful to the (mostly Republican)
politicians who deliver it.
President Bush's January 2005 speech on medical liability reform in
Collinsville, Illinois, shows just how strongly his administration is
promoting the medical malpractice myth. As with any major political address
by a politician from either party, the visual images, alone, tell a
significant story. The White House video of the speech opens with a
wide-angle shot of the president walking toward a podium stationed in front
of a bleacher full of cheering doctors in white coats, beneath a large
banner on which the words "Affordable Healthcare" are framed between two
large images of the caduceus-the twined snake and wing symbol of the
American medical profession. When the camera pulls in tight for the speech,
we see a striking image: President Bush, the presidential seal on the podium
below, and doctors in white coats all around.
In advance of the Collinsville address, the White House had announced that
the president would be discussing medical liability reform. By linking
"affordable health care" with medical liability reform and surrounding the
president with cheering doctors, the image conveyed a clear message. Medical
malpractice lawsuits are a big reason health care is so expensive. The
president supports doctors' efforts to eliminate that cost. And doctors
support the president.
The speech itself delivered the same message. "I'm here to talk about how we
need to fix a broken medical liability system," the president announced to a
roar of applause. He mentioned by name the Illinois Republican politicians
attending the speech, explained how they are supporting the cause, and
offered special thanks to the Republican legislator who was "leading the
medical liability reform effort" in the Illinois state legislature. After
running through the top agenda items for his administration and a few other
health-care reform ideas designed to control health-care costs, he arrived
at his main topic:
What's happening all across this country is that lawyers are filing
baseless suits against hospitals and doctors. That's just a plain fact. And
they're doing it for a simple reason. They know the medical liability system
is tilted in their favor. Jury awards in medical liability cases have
skyrocketed in recent years. That means every claim filed by a
personal-injury lawyer brings the chance of a huge payoff or a profitable
settlement out of court. That's what that means. Doctors and hospitals
realize this. They know it's expensive to fight a lawsuit, even if it doesn't
have any merit. And because the system is so unpredictable, there is a
constant risk of being hit by a massive jury award. So doctors end up paying
tens of thousands, or even hundreds of thousands of dollars to settle claims
out of court, even when they know they have done nothing wrong.
From there, the speech proceeded point by point through the medical
malpractice myth: the frivolous lawsuits, the courts' bias against doctors,
the skyrocketing jury awards, the huge settlements in cases in which doctors
did nothing wrong, the direct link between lawsuits and insurance premiums,
the doctors leaving the practice of medicine, the patients who cannot find
doctors, and the huge waste of money on defensive medicine. "This liability
system of ours is," the president said, "what I'm telling you, is out of
control." It was an effective, succinct, and powerful statement of the
medical malpractice myth.
Post by DoormanHilarious huh?
The United States increasingly faces a health care crisis. Many doctors,
faced with ever-mounting malpractice insurance premiums, have gone out of
business. Others are retiring early. Some are moving to states that have
enacted tort reform, while rural states without significant tort reform are
losing doctors hand over fist. Their poorest citizens can't find medical
help where they need it. Trial lawyers like John Edwards are a big reason
why.
Huge awards in malpractice lawsuits over the years have caused many insurers
to abandon medicine. Others have had to raise premiums to rates that
effectively prevent doctors from staying solvent. Obstetricians - the most
likely to be sued - have seen premiums increase from 20 to 400 percent in
the last few years. Some have had their policies cancelled altogether. The
trend has hit general surgeons and emergency room physicians too.
In Mississippi, where annual premiums for OB/GYNs can range from
$40,000-$110,000 (far more than many doctors in the state make), physicians
are fleeing in droves, leaving poor, rural women without doctors to deliver
their babies. One medical school in Nevada had to close because no insurer
in the state would grant it coverage. In parts of Florida, malpractice
premiums for individual doctors can exceed $160,000.
In Edwards' home state of North Carolina, health care costs are also
soaring. Consequently, awards in malpractice cases have grown too, as
compensatory damages necessarily reflect current health care costs. Of
course, higher damages mean higher insurance premiums, and higher insurance
premiums in turn lead, once again, to higher health care costs.
It's a nasty cycle, and all the while, malpractice lawyers continue to
siphon off generous contingency fees, sometimes as much as 30 percent.
Prominent Raleigh trial attorney Mark Holt told North Carolina Lawyers
Weekly in a 2000 article that ". when you go against a medical provider, how
much can be paid hinges directly on the amount of insurance coverage."
In 1997, a botched childbirth resulted in a state record $23.5 million
award, setting off a runaway train of jury malpractice awards in North
Carolina. John Edwards was the plaintiff's counsel. He broke his own record
that same year with a $30 million award.
North Carolina avoided Mississippi's dearth-of-doctors fate by putting caps
on punitive awards with a law that took effect in 1997. Mississippi has yet
to enact any such tort reform, and continues to lose doctors.
Some doctors and hospitals have found a solution to insurance costs by
requiring patients to sign waivers submitting any claims to private
arbitrators. But trial lawyer lobbyists are trying to nix that remedy, too,
and have begun to push Congress for anti-arbitration legislation.
This lobby is closely tied to Edwards. According to the Capitol Hill
newspaper Roll Call, 86 percent of the $1.39 million raised by Edwards'
recently formed political action committee came from fellow trial lawyers.
Roll Call writes, "No other Congressional leader or potential presidential
contender has such a heavy reliance on a single industry for their
leadership PAC."
Additionally, Edwards was a chief co-sponsor of the "Patients Bill of
Rights" legislation. The Edwards-sponsored version of the bill would have
permitted patients to sue health care providers for punitive damages in
federal court - allowing lawyers to circumvent state court caps on punitive
damages like those enacted in North Carolina. The Employment Policy
Foundation estimated at the time that the Edwards bill would result in
56,000 new lawsuits per year, a $16 billion increase in health care costs,
and nine million more Americans with no health care coverage at all.
Trial lawyers, of course, loved it.
Edwards' background wouldn't be so important to his presidential ambitions
if he weren't so blatant about mischaracterizing it. He talks about "helping
the helpless," but in fact, he built his fortune and paved his way to
politics chasing doctors out of the medical profession. Lots of those
"helpless" people he mentions live in low-income areas without access to the
health care they need.
http://www.foxnews.com/story/0,2933,52310,00.html
Now, let's go on to the more specific complaint about the cases Edwards
himself brought as a plaintiffs' lawyer.
Throughout his career, Edwards won many large verdicts against
obstetricians
in North Carolina. Indeed, he reportedly developed a reputation of being so
fearsome that insurance companies settled as soon as they heard he was the
plaintiff's lawyer. One of the primary theories he invoked holds that
cerebral palsy can be caused during delivery. Now critics are saying that
theory was based on "junk science." (Click here to see a typical criticism.)
That's not true, however. Having reviewed the cases Edwards's critics have
cited, I found that what they show is that at the time, the medical
profession was split on the validity of this theory. There were experts on
both sides. Edwards called his to the stand; the defendants called theirs;
the jury decided.
It turns out that now -- many years later, in light of additional evidence
and science -- it seems that the defendants had the better of the debate.
But all that proves about Edwards is that he couldn't see into the future.
No one can, which is why we have trials, not oracles.
One of the cases the critics dwell on occurred in 1979. In that case,
Campbell v. Pitt County Memorial Hospital, Edwards won $6.5 million for a
young girl named Jennifer Campbell who had been born with cerebral palsy in
a rural part of North Carolina. The Campbells claimed (among other points)
that, given Jennifer's position in the womb, the doctor should have
recommended a Caesarean section, especially during the birth, once there was
evidence of fetal distress.
One of the chief tools that Edwards used -- the fetal heart rate monitor
reading -- is now hotly debated. In the late '70's, when Edwards first
started trying these sorts of cases, many obstetricians felt that increased
used of fetal heart rate monitors would lead to safer deliveries.
Furthermore, lawyers like Edwards thought that, since the monitors produced
a permanent record, it would be easier to prove whether a doctor ignored
certain warning signs after the fact.
Indeed, at the time, even the defense expert seems to have operated under
these assumptions. North Carolina operated under something called the
"locality rule," which meant that reasonable care in medicine was defined by
the standard of care of the local doctors. And as Edwards tells it in his
book, Four Trials, even the defense expert hired by the obstetrician
admitted in deposition that he would have elected for a Caesarean section at
the outset. He also admitted that, given his reading of the heart rate
monitor records, he would have recognized fetal distress over an hour
earlier than the defendant.
Now, it turns out that the causal link between physician malpractice and
cerebral palsy is much less certain than was once believed. Furthermore,
fetal heart monitoring--which was adopted by many hospitals in the '70's and
'80's as a defense against claims of medical malpractice--may itself be the
culprit. With the benefit of hindsight, many medical experts now feel that
the monitors produce too many false alarms that have led to too many
unnecessary Caesarean sections -- and perhaps to too many erroneous findings
of liability.
http://writ.news.findlaw.com/sebok/20040726.html
After law school, he clerked for a Federal judge and in 1978 became an
associate at the Nashville law firm of Dearborn & Ewing, doing primarily
trial work, defending a Nashville bank and other corporate clients. The
Edwards family returned to North Carolina in 1981, settling in the capital
of Raleigh where he joined the firm of Tharrington, Smith & Hargrove.[11]
In 1984 Edwards was assigned to a perceived unwinnable medical malpractice
lawsuit; the firm had only accepted it as a favor to an attorney and state
senator who did not want to keep it. Nevertheless, Edwards won a $3.7
million verdict on behalf of his client, who suffered permanent brain and
nerve damage after a doctor prescribed a drug overdose of anti-alcoholism
drug Antabuse during alcohol aversion therapy.[12] In other cases, Edwards
sued the American Red Cross three times, alleging transmission of AIDS
through tainted blood products, resulting in a confidential settlement each
time, and defended a North Carolina newspaper against a libel charge.[11]
In 1985, Edwards represented a five-year-old child born with cerebral palsy
whose doctor did not choose to perform an immediate Caesarian delivery when
a fetal monitor showed she was in distress. Edwards won a $6.5 million
verdict for his client, but five weeks later, the presiding judge sustained
the verdict but overturned the award on grounds that it was "excessive" and
that it appeared "to have been given under the influence of passion and
prejudice," adding that in his opinion "the evidence was insufficient to
support the verdict." He offered the plaintiffs half of the jury's award,
but the child's family appealed the case and settled for $4.25
million.[11]
Winning this case established the North Carolina precedent of physician and
hospital liability for failing to determine if the patient understood risks
of a particular procedure.[12]
After this trial, Edwards gained national attention as a plaintiff's lawyer.
He filed at least twenty similar lawsuits in the years following and
achieved verdicts and settlements of more than $60 million for his clients.
These successful lawsuits were followed by similar ones across the country.
When asked about an increase in Caesarean deliveries nationwide, perhaps to
avoid similar medical malpractice lawsuits, Edwards said, "The question is,
would you rather have cases where that happens instead of having cases where
you don't intervene and a child either becomes disabled for life or dies in
utero?"[11]
http://en.wikipedia.org/wiki/John_Edwards
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