Medical Malpractice Litigation - A Disease Worse than the Cure
Guest Column | By Marion Edwyn Harrison, ESQ. | August 18, 2005
American civil litigation massively and in many respects is out of control.
The disease worsens. On April 10, 2004 the Free Congress Foundation sponsored in the Dirksen Senate Office Building an impressive - and very scary - forum, RESTORING RESPONSIBILITY - LITIGATION, VICTIMIZATION AND THE CORRUPTION OF CULTURE. Senator Mitch McConnell, of Kentucky, Senate Majority Whip, was the keynote speaker. The panelists were outstanding: Frederick C. Blum, M.D., practicing physician; Clinical Professor, West Virginia University; Fellow and Director, American College of Emergency Physicians. Michael I. Krauss, Esq., Professor of Law, George Mason University. William H. Marshner, S.T.D., Professor of Theology, Christendom College. Kevin S. McGuiness, Esq., Counsel, Asbestos Study Group. Alan G. Rosenbloom, Esq., President, Pennsylvania Health Care Association. David Walsh, Ph.D., Professor of Politics, Catholic University of America; author, After Ideology: Recovering the Spiritual Foundation of Freedom, The Growth of the Liberal Soul, etc. Louis P. Warshot, Esq., Senior Vice President and General Counsel, Association of American Railroads.
From varied pragmatic and theoretical perspectives, the distinguished panelists conveyed essentially the same message: American civil litigation massively and in many respects is out of control. Every victim, or imagined victim, of adversity is encouraged to abandon self-reliance and prayer; to sue somebody, somewhere, for big bucks and even bigger bucks for his or her so-called "trial lawyer" - that is, Plaintiff's contingent-fee lawyer. As the culture has declined, the notion of victimization has risen. If there is injury somebody must be at fault and somebody must pay dearly.
Years ago, when this writer served on the American Bar Board of Governors, lawyers who tried cases were called litigators or trial lawyers. Today "trial lawyer" has a special meaning - to some pejorative, to some a multimillion dollar compliment. No wonder the Association of Trial Lawyers of America donates millions of dollars annually to its favored candidates.
In a criminal trial the burden of proof is beyond a reasonable doubt. In a civil trial it's merely a preponderance of the evidence. So whether it's called a criminal penalty or punitive damages the defendant gets hit. In a civil trial it's much easier to hit him, the damages can be in the millions and a plaintiff, not the state, gets the money (after the smiling trial lawyer - hello, John Edwards - has gotten his share).
More subtle perhaps, the constitutional protection of separation of powers is eviscerated. Gun control, water pollution and a vast array of other lawsuit subjects are executive functions, under legislative authority - not judicial. Alexander Hamilton wouldn't be happy, for he wrote in Federalist # 78 that the judiciary would be the weakest of the three departments.
So what's all this got to do with the practice of medicine - which, after all, is the treating of sick people and the saving of human lives?
Physicians in some specialties are being driven out of twelve States. Pennsylvania and West Virginia were highlighted at the Forum. Rand Corporation studies show that 65% of the money in asbestos litigation goes to the lawyers. A Tillinghast-Towers-Perrin study reveals that four years ago the total cost of our tort system hit $ 204 billion - yes, billion.
The medical malpractice crisis only worsens. Kaiser Family Foundation figures for 2003 show for the twenty most egregious States the following malpractice claims paid, in millions of dollars: New York - $ 671; Florida - 390; Pennsylvania - 382; Illinois - 243; Texas - 242; California - 227; Ohio - 197; New Jersey - 189; Indiana - 126; Georgia - 118; Connecticut - 105; Massachusetts - 102; Arizona - 90; Maryland - 87; Michigan - 75; North Carolina - 70; Missouri - 57; Virginia - 53; Louisiana - 47; Washington - 47. Of course, when one calculates population ratios, some of the smaller States are worse.
Patients - and, via Medicare, we taxpayers - pay more not only because malpractice insurance premiums necessarily are much higher but also because physicians must practice defensive medicine.
This writer does not buy the internationalist approach of looking to Europe for guidance as to cultural, social or other norms. However, once in awhile it is well to look across the Atlantic. So looking, one sees that almost never does a jury adjudicate a medical malpractice case and almost always punishment arises from criminal, not civil, cases (or, if the litigation is combined, from the criminal, not the civil, side).
Wherever one looks, the viewer cannot escape dangerous facts: Overall medical costs are up and rising; most physicians' net income (not gross income, but what difference does gross make?) is down, either absolutely or relatively; the number and percentage of immigrants entering the medical profession steadily increases. Meantime, the cost of medical education - college, four years medical school, several (and often more) years of low-pay overworked internship - rises.
As a minimum, if our country is to continue to enjoy the world's most skilled medical care, in medical malpractice cases we must eliminate treating a civil trial as a lighter-proof criminal trial by abolishing, not merely capping, punitive damages; and by realistically limiting pain-and-suffering damages.
If you really want to experience pain and suffering from your physician or hospital, just enquire about the cost of medical malpractice insurance and the estimated, barely visible, cost of litigation-driven defensive medicine.
Marion Edwyn Harrison is President of, and Counsel for, the Free Congress Foundation.
This column is the property of the Free Congress Foundation and may not be reproduced without their permission. For comments and inquiries, contact Phyllis E. Hughes at (JavaScript must be enabled to view this email address). Visit our website at www.FreeCongress.org
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