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Should doctors vote against John Edwards?

Critiques of senator's medical malpractice litigation record are wrong

Anthony J. Sebok, FindLaw Columnist
Special to CNN.com


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(FindLaw) -- Many medical professionals are upset that Sen. John Kerry has selected Senator John Edwards as his running mate. They shouldn't be.

Doctors often view malpractice lawyers as a threat to their profession - a threat so grave it outweighs any other virtues that the Democratic ticket might have. They are thus concerned that Edwards was a trial lawyer - and in particular, a medical malpractice plaintiffs' lawyer - and is supported by trial lawyers. They are also concerned because some of the cases Edwards brought decades ago have turned out, in retrospect, to be meritless.

In the end, however, neither of these arguments is a persuasive reason to oppose Edwards.

Rising judgments

The total cost of medical malpractice insurance is less than 2 percent of all U.S. health care spending. So how can such litigation be a serious threat to medical care in the first place?

The answer many give is that medical malpractice awards and medical malpractice premiums began to rise steeply sometime around 1999, and are continuing to rise very fast--faster than inflation. If premiums continue to rise, the argument goes, serious damage may be done.

Similar steep increases in premiums in the recent past -- once during the '70's and once during the '80's -- did not destroy the medical system. Nevertheless, rising premiums are a worthy subject of concern.

Why are premiums rising? Large malpractice damages awards are one factor -- but the evidence makes clear they are far from the only one.

Consider that in the early and mid-90s, medical malpractice awards rose, while medical malpractice premiums stayed flat -- and even fell. Consider also California's example. In 1975, the state passed tort reform designed to reduce medical malpractice awards. But it was not until 1988 -- when the state began to directly regulate malpractice insurers -- that insurance rates actually began to decline. Finally, consider that insurance premiums have followed in lockstep with medical inflation -- not with changes in the damages awards in the tort system.

So how can we account for the current rise in premiums, if not through changing damages awards alone? Experts believe it's because of a few things that happened at the same time: Interest rates declined while the companies tried to expand their market share, causing reserves to drop and leaving them in a precarious financial position.

Malpractice suit awards have declined

Granted, despite these other points, damage awards are at least a factor in rising premiums -- and damage awards are rising. According to Justice Department statistics, the typical (or median) damage award won by plaintiffs in medical malpractice suits increased from $253,000 in 1992, to $431,000 in 2001. (The statistics are based on civil trials conducted in the U.S.'s 75 largest counties.)

But the averages aren't the whole story: The total money awarded, as a sum of all the suits combined, actually declined slightly. Using the same DOJ statistics (from the same 75 counties), in 1992, plaintiffs won 403 cases for a total of $754 million in damages, but in 2001 plaintiffs won 292, for a total of $596 million.

In other words, medical malpractice litigation now involves fewer cases with bigger awards. Media coverage of the big awards may suggest a litigation explosion. But in fact, as the DOJ statistics show, there may be litigation shrinkage in number of cases filed (or at least making it to trial).

That may be because victims (and their attorneys) are no longer bringing small and "mid-size" cases -- only large ones, which are large precisely because the injuries suffered are horrible.

Why? Because "tort reform" has made it much more expensive and difficult for malpractice plaintiffs to pursue their claims in court. But that's not necessarily good -- when the plaintiffs were genuinely injured and deserve compensation.

Pain and suffering awards are needed

Suppose that despite these points, we are still intent on reducing medical malpractice premiums. How should we do it?

The most popular "reform" is to impose a cap on pain and suffering awards. But that forces the worst-off to subsidize everybody else's medical insurance.

Consider a 7-year-old child, terribly injured by medical malpractice, who will live in constant, severe pain for the rest of his life. A jury might award the child millions for "pain and suffering." But in a state with a cap, that award could be reduced to only $250,000.

Certainly, some victims' pain and suffering over a lifetime must exceed that amount. Judges and juries seem to think so when they award sums greater than $250,000 in various torts cases, regardless of whether they involve malpractice, car accidents, or sexual abuse. The argument for caps must simply be that we, as a society, can't afford to fully compensate victims of medical malpractice -- so we accept as matter of practical necessity that that their suffering will remain uncompensated and unaddressed.

But how can this be the right answer? Why should the most unfortunate -- the disabled, the suffering, the severely ill -- forego compensation? It seems mean-spirited to ask those who have lost the most to bear the brunt.

Usually when a society faces a social problem it tries to spread the cost of fixing it as broadly as possible, or it asks the better-off to contribute a little more. Why on earth would we solve the problem of access to medical malpractice insurance by making the victims pay for the reform?

There are alternatives: The government could bear part of the cost of malpractice compensation. Or it could tax all consumers -- or wealthy businesses -- who purchase health insurance, so that the costs are spread according to ability to pay.

The 'character' issue is a non-issue

Now, let's go on to the more specific complaint about Edwards's own cases.

Edwards won many large verdicts against obstetricians in North Carolina. 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."

In fact, 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.

Now -- many years later, in light of additional evidence and science -- it seems that the defendants seem to have a much better case than previously believed. 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.

Consider the 1979 case critics often mention, in which 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 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.

At the time, even some defense experts seemed to agree. 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. As Edwards tells it in his book, Four Trials, the defendant's North Carolina expert admitted in deposition that he would have elected for a Caesarean section at the outset -- and that, given his reading of the heart rate monitor records, he would have recognized fetal distress over an hour earlier than the defendant doctor did.

As noted, it now 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 not be as accurate a tool to measure fetal distress as previously hoped.

With the benefit of hindsight, many medical experts now feel the monitors produce too many false alarms, and thus too many unnecessary Caesarean sections -- resulting perhaps in too many erroneous findings of liability.

In 1979, however, none of this was clear. And therefore, the supposed "character" issue for Edwards is no issue at all.

Of course, this is not to deny that some lawyers might use junk science. (When lawyers for Big Tobacco presented scientists who denied that smoking is addictive or causes cancer, what were they thinking?) But Edwards wasn't one of them.

Interestingly, the Campbell verdict, in the end, may have done quite a bit of good. In the course of the trial, Edwards brought out that the hospital never offered to the Campbells the choice of opting for a Caesarean section. They weren't asked to sign an "informed consent" form until after Jennifer was born - even though the form stated that they had been informed before the delivery of its various dangers.

The jury's anger that the parents were not given this option may have been a large reason for its multimillion dollar verdict. Certainly, it is plausible that, as Edwards says in his book, the case had a huge impact on how hospitals handled informed consent.

Doctors' frustration with juries

Now, doctors may argue that juries shouldn't be making this kind of decision in the first place. They may suggest that a lay jury system is a rotten way to decide whether a mistake was made, and whether the victim of the mistake should get $50,000 or $5 million.

After all, if doctors are not sure about the right answer, how can 12 lay people do better? Wouldn't expert juries -- composed of doctors -- be preferable?

These are good questions -- but they have little to do with Edwards. He was a participant in our tort system, the one that exists not just in North Carolina but all across America. It may be imperfect, but it has an honorable goal: To compensate hurt, ill, and suffering people who have been the victims of medical malpractice.

Doctors' points are not falling on deaf ears. A lot of experts believe allowing doctors to set their own standards of safety through local or national practices can produce a great deal of uncertainty for plaintiffs and defendants alike. Many experts think that jurors' angry reactions to certain facts -- say, the lack-of-informed-consent evidence in Jennifer's case -- can lead to unequal verdicts among similar cases. Also many -- myself included --think our tort system has some peculiar priorities.

Perhaps a better system would try to incentivize participants to waive jury trial rights, or to reduce the degree to which compensation decisions are decided through an adversarial, competitive process. In many European countries, where the medical system is run primarily by the government, the malpractice compensation decision-making process is very different.

But North Carolina is not Sweden -- and that fact is not to be laid at Edwards's door.

Edwards' cases and personal responsibility

In many ways, Edwards's history as a medical malpractice lawyer ought to appeal to Americans -- since we are a nation deeply attached to the idea of personal responsibility. This history shows that Edwards subscribes to mainstream American values -- and that is an important thing in a Vice President.

Doctors sometimes cannot understand why lawyers urge juries to look for the person responsible for everything that goes wrong. It is because in our culture, injured people don't get any help unless they can blame their injuries on someone -- but if they can, they are entitled to full compensation.

A little girl who has cerebral palsy through bad luck might get nothing (except perhaps Social Security). But under our system, Jennifer Campbell has a right to get back everything she lost -- if she can prove that she was wronged. And Jennifer has no alternative but a lawyer such as Edwards. Without him, she will get virtually nothing.

American tort law is more individualistic than any other Western nation. We distrust bureaucracies and centralization. Our tort system does not look like something a scientist would have developed, which is perhaps why some doctors find it so maddening. But they should not hate John Edwards for applying to his clients' cases the values which are at the foundation of American tort law.

John Edwards understands how Americans feel about fault, money and justice -- which is why he was a great lawyer and could be a good Vice President.

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Anthony J. Sebok, a FindLawexternal link columnist, is a professor of law at Brooklyn Law School, where he teaches torts, among other subjects. A longer version of this column is available at findlaw.com.


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