- The Washington Times - Sunday, March 9, 2003

Put a scalpel in the hands of a surgeon and he will sure enough cut your throat, or so many of the nation's trial lawyers would have you believe.
To hear the lawyers tell it, a chief reason for their filing thousands of malpractice suits is the mayhem that vast numbers of deadly doctors are visiting on innocent patients. The doctors must be curbed and the patients must get justice, the lawyers say. And meanwhile, they tell us, all those eye-popping awards aren't the real reason malpractice insurance premiums are going up so sharply, driving doctors out of the profession. Why, the big, bad insurance industry is at fault.
Grant the lawyers some points. It is true that some doctors are negligent, and it's true as well that some insurance companies are increasing premiums at least partly in response to investments gone sour. But as any fair-minded jury would say after looking at the unvarnished evidence, the heart of the problem is abuse by lawyers who are something other than dragon slayers deserving hurrahs.
The abuse starts with filing suit when there is no solid reason to suppose that any doctor did anything wrong. Maybe a newly born infant has brain damage or cerebral palsy. The lawyer goes out and finds someone who claims expertise and simultaneously contends that a careless error by an obstetrician is the cause.
Settled science? Not even close. Writing in the Wall Street Journal, a Manhattan Institute fellow and author of a book about lawyers says a recent study shows most of these cerebral palsy cases have nothing to do with delivery. An obstetrician can do everything according to the best information available and still have a jury call him negligent. Says the writer, Walter Olson, some of the biggest malpractice verdicts have rested on the highly debatable assertion that a doctor's negligence was responsible for an infant's cerebral palsy or brain damage. We're talking about staggering amounts here, tens of millions of dollars.
That fact brings us to a second abuse by lawyers: the huge amounts they sometimes seek for pain and suffering and for punitive damages. If negligence is the jury's verdict, plaintiffs receive economic losses; they get money for lost income stemming from the doctor's error, for instance, and for expenses resulting from the harm they endured. The other awards are on top of that, the intent being to compensate victims for their agony and to punish the guilty enough to elicit greater care in the future. All of this can send awards astronomically high, with much of the money going in the pockets of the lawyers.
The lawyers argue that no one should question any of this because, after all, it was trusted jurors who made the decision. It's an argument that relies on the supposition that the trial lawyers act in such good faith that they never develop the skill of conning honest jurors into mistaken antipathies and sympathies. When the lawyers follow with another argument the one that says they are serving the overall public good it is time for a loud guffaw.
The so-called good they do includes chasing doctors out of medicine because of insurance premiums that can go as high as $200,000 a year and in not a few instances absorb most of a doctor's income. The doctors' departure can mean that patients in some parts of the country cannot obtain the medical care they need without traveling long distances.
A fallback of the lawyers is to talk disparagingly of doctors. Ralph Nader (a lawyer, don't forget) says there is "an epidemic of careless medicine," which seems strange, seeing as how even superbly rendered medicine gets you sued and seeing as how Americans are healthier and live longer than they ever did.
The lawyers also blame the insurance companies, as if they were a monolith instead of competitive enterprises pushing one another toward efficiency and as if many were not shedding the increasingly impossible malpractice business altogether.
The remedy offered by the Bush administration essentially, caps on non-economic awards is simplistic, say some critics. Maybe it is, and maybe there should be a variety of other steps, but the remedy can work, as has been demonstrated by caps in California that have kept insurance premiums there from racing skyward.
States should do this tort-reform job, and some have, but state constitutions get in the way in some states, and there is justification for federal intervention in the interstate commerce clause in the U.S. Constitution. For the sake of the citizenry's welfare, the lawyers have to be stopped.

Jay Ambrose is director of editorial policy for Scripps Howard Newspapers.

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