Monday, August 16, 2004

The American Medical Association lists North Carolina’s current health care situation as a “crisis” and blames it on medical-malpractice lawsuits such as the ones that made Democratic vice-presidential candidate Sen. John Edwards a millionaire many times over.

One of the most successful personal-injury lawyers in North Carolina history, Mr. Edwards won dozens of lawsuits against doctors and hospitals across the state that he now represents in the Senate. He won more than 50 cases with verdicts or settlements of $1 million or more, according to North Carolina Lawyers Weekly, and 31 of those were medical-malpractice suits.

During his 20 years of suing doctors and hospitals, he pioneered the art of blaming psychiatrists for patients who commit suicide and blaming doctors for delivering babies with cerebral palsy, according to doctors, fellow lawyers and legal observers who followed Mr. Edwards’ career in North Carolina.

“The John Edwards we know crushed [obstetrics, gynecology] and neurosurgery in North Carolina,” said Dr. Craig VanDerVeer, a Charlotte neurosurgeon. “As a result, thousands of patients lost their health care.”

“And all of this for the little people?” he asked, a reference to Mr. Edwards’ argument that he represented regular people against mighty foes such as prosperous doctors and big insurance companies. “How many little people do you know who will supply you with $60 million in legal fees over a couple of years?”

Through a spokeswoman, Mr. Edwards declined to comment beyond e-mailing his and John Kerry’s “real plan for medical-malpractice reform.”

The plan calls for one measure that Mr. Edwards previously had said is meaningless and does not impose caps on verdicts for economic damages or limits on attorneys’ fees.

One of his most noted victories was a $23 million settlement he got from a 1995 case — his last before joining the Senate — in which he sued the doctor, gynecological clinic, anesthesiologist and hospital involved in the birth of Bailey Griffin, who had cerebral palsy and other medical problems.

Linking complications during childbirth to cerebral palsy became a specialty for Mr. Edwards. In the courtroom, he was known to dramatize the events at birth by speaking to jurors as if he were the unborn baby, begging for help, begging to be let out of the womb.

“He was very good at it,” said Dr. John Schmitt, an obstetrician and gynecologist who used to practice in Mr. Edwards’ hometown of Raleigh. “But the science behind a lot of his arguments was flawed.”

In 2003, the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists published a joint study that cast serious doubt on whether events at childbirth cause cerebral palsy. The “vast majority” of cerebral palsy cases originate long before childbirth, according to the study.

“Now, he would have a much harder time proving a lot of his cases,” said Dr. Schmitt, who now practices at the University of Virginia Health System.

Another profitable area of litigation for Mr. Edwards was lawsuits against psychiatrists whose patients committed suicide.

In 1991, he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. It was the first successful medical-malpractice case in Mr. Edwards’ home of Wake County.

During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

“I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible,” Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

In the end, Mr. Edwards scored $1.5 million for “wrongful death” and $175,000 in “emotional distress” for the woman’s children.

“One thing I was grappling with was how to explain to the jury the difference between loss of companionship and society — the things under the wrongful-death statute — and emotional pain and suffering, which superficially sound like the same thing,” he said at the time. “What we did was to tell them the wrongful-death damages are for the loss of all the things that a mother does for the child. But the emotional pain and suffering damages represent the grieving. The pain is something you feel over the death of your mother.”

In 1995, as Mr. Edwards neared the pinnacle of his success, Lawyers Weekly reported on the state’s 50 biggest settlements of the year.

“Like last year, the medical malpractice category leads the new list, accounting for 16 cases — or 32 percent — three points better than last year,” the magazine reported. “By and large, that upward trend had held since 1992, when only four [medical malpractice] cases made the survey.”

Mr. Edwards was singled out.

“Another reason for this year’s [medical malpractice] jump was a strong showing by the Raleigh firm of Edwards & Kirby,” it reported. “Partner John Edwards was lead counsel in eight of the 16 medical malpractice cases in the top 50.”

Later in that article, Mr. Edwards was interviewed about the $5 million he won from doctors who delivered Ethan L. Bedrick, who had cerebral palsy. Mr. Edwards credited the jury focus groups that he routinely used to help prepare his arguments.

“They gave me several bits and pieces of information to use when addressing the jury,” Mr. Edwards was quoted saying. “You can use them to decide whether to get involved in a case or whether to accept a settlement offer, but our primary use is trial presentation.”

The article went on to observe: “Focus groups can be put together for as little as $300, according to Edwards — a small investment compared to the $5 million won in Bedrick.”

It is not clear just how much Mr. Edwards made as a lawyer, but estimates based on a review of his lawsuit settlements and Senate records place his fortune at about $38 million.

Like many Democrats, Mr. Edwards has benefited from the generosity of fellow trial lawyers, who have given millions of dollars to Mr. Edwards’ political campaigns and other political endeavors.

Part of the platform that Mr. Edwards is running on includes medical-malpractice reform. The Democrats’ plan would go after insurance companies that increase doctors’ premiums and ban lawyers and plaintiffs for 10 years if they file three frivolous lawsuits.

One tenet of their plan would “require that individuals making medical-malpractice claims first go before a qualified medical specialist to make sure a reasonable grievance exists.”

However, Mr. Edwards said in a 1995 interview that such pre-screening is unnecessary.

“Pre-screening as a concept is very good, but it’s already done by every experienced malpractice lawyer,” he told North Carolina Lawyers Weekly.

As a result of these and other cases, insurance rates for doctors have skyrocketed — putting some out of business and driving others away, especially from rural areas. And doctors who have lost cases to Mr. Edwards have been bankrupted.

Patients, meanwhile, are left with rising health care costs and fewer — if any — doctors in their area. It is increasingly a nationwide problem, physicians say.

Dr. VanDerVeer, the Charlotte neurosurgeon, recalled one recent night on duty when two patients arrived in an emergency room in Myrtle Beach, S.C., where the area’s last neurosurgeons quit earlier this year.

“No one in Myrtle Beach would accept responsibility for these patients,” he said. And because it was raining, the helicopters were grounded, so the patients were loaded into ambulances and driven the four hours to Charlotte.

Upon arrival, one patient had died, and the other learned that she merely had a minor concussion — and a $6,000 bill for the ambulance ride.

“That’s just one little slice of life here,” Dr. VanDerVeer said. “It’s a direct result of the medical-malpractice situation that John Edwards fomented.”

Dr. Schmitt had spent 20 years delivering babies in Raleigh. Though he had no claims against him, his insurance tripled in one year. With no assurances that his rates would ever drop, or just stop rising, he left town.

For Mr. Edwards’ part, he doesn’t necessarily begrudge the doctors he sues.

In the book he wrote while campaigning for president, “Four Trials,” Mr. Edwards referred to the doctors who he’d won millions from in two cases.

“In the E.G. Sawyer case and the Jennifer Campbell case, the defendants were not malevolent but were caring and competent doctors who worked in good hospitals and yet made grievous mistakes,” he wrote. “They had erred in their judgment, but no one could despise them.”

Doctors, however, take it all a bit more personally.

“We are currently being sued out of existence,” Dr. VanDerVeer said. “People have to choose whether they want these lawyers to make gazillions of dollars in pain and suffering awards or whether they want health care.”

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