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Join Date: Apr 2003
What Lawyers hath wrought
Lawyers and the Little Guy
How Helpful Were V.P. Hopeful Edwards’ Courtroom Triumphs?
By John Stossel
July 23, 2004 — Trial lawyers are making a case for putting John Edwards in the White House. If a former plaintiff's lawyer is so close to the presidency, we should take a closer look at the unintended consequences of what these lawyers do.
Vice presidential candidate Edwards made millions of dollars by doing good, say his supporters.
He was a personal injury lawyer who punished bad doctors and was awarded money for those who were victims of malpractice. He won't give the total of how much money he made doing that, but in just the four years before he became a senator, he made over $26 million.
Lawyers were the biggest contributors to his presidential campaign, and now they've become the biggest givers to the Democratic Party — bigger than labor unions, corporations — bigger than anybody.
Trial lawyers comprise one of the most powerful professions in America, yet we rarely hear about the unintended consequences of what they do, and how the lawsuits they pursue impact our lives.
Edwards' career as a lawyer was such a success, juries gave him record-breaking verdicts. He was such a powerful speaker that other lawyers went to court just to watch him.
He's described as an "articulate advocate for his client," by Richard "Dickie" Scruggs. Scruggs may be America's most successful trial lawyer. He made a billion dollars from tobacco lawsuits alone.
John Edwards has said he loved being a trial lawyer because he was able to help the little guy, but lawyers hurt the little guys, too. Every product you buy has a built-in cost to cover what lawyers make through lawsuits. The cost of paying Dickie Scruggs a billion dollars in the tobacco settlement gets passed on to consumers in the form of higher prices on cigarettes.
But paying higher prices is not the biggest effect of what the lawyers do. What may be worse is what the fear of lawsuits do to medical care and innovation.
Litigating Health Care
In hospitals, the lawyers have bred so much fear that patients now suffer more pain, and may be less safe because doctors are concerned about being sued.
"That fear is always there," said obstetrics professor Dr. Edgar Mandeville. "Everybody walks in mortal fear of being sued."
The Department of Health and Human Services found doctors order painful tests they consider unnecessary, for fear of being sued. And the majority of doctors say they recommended invasive procedures more often than they believed were medically necessary in an effort to prevent potential litigation.
I asked Scruggs if he thought that was accurate, and he said, "That's probably true … but why do they do it? … They make more money, the more they do."
But the doctors say it's because of fear of the lawyers.
"Well I would say that too, if I were gouging someone and wanted to get away with it and blame it on somebody else," said Scruggs.
Are they all gouging patients? Clearly, there are bad and careless doctors, but in certain specialties most doctors are being sued.
In fact, 76 percent of American obstetricians have been sued. Yet lawyers, like Scruggs, often say there are only a 'few' physicians who are causing all the problems.
Then how is it fair that three-fourths of the obstetricians get sued?
"Well, you know … that's why they have insurance," said Scruggs.
Consumers pay for that insurance in increased costs, but the result doesn't necessarily make us safer. A government study found this fear of lawsuits has made many hospitals reluctant to report problems, with as many as 95 percent of adverse events believed to go unreported.
Are the fear and the secrecy making us less safe?
Scruggs' response: "I disagree with that. I think that's what doctors say."
Example: Edwards' Cerebral Palsy Case
Vice presidential candidate Edwards made millions suing doctors and hospitals on behalf of people whose children had been born with cerebral palsy.
Cerebral palsy is a central nervous system defect that makes it hard for people to control their muscles. At the time of Edwards' cases, the defect was often said to be caused by a lack of oxygen to the baby's brain during delivery. Edwards and other lawyers have argued that if the doctor involved had only done a Caesarean section, the child's cerebral palsy could have been prevented.
He won a record verdict in a cerebral palsy case after he told the jury he was speaking for the injured infant, in the womb. He was very convincing and the jury awarded his clients over $6 million. Scruggs told me, "Wouldn't you want your lawyer to be just as clever and just as effective?"
One thing doctors may have learned from these kinds of cases was to do more C-sections. The procedure is more common today for many reasons, including scheduling convenience, but doctors say fear of a cerebral palsy lawsuit has had a big impact.
Since 1970 C-sections have gone from 6 percent of all births to 26 percent. "And there has not been one small decrease in the cerebral palsy rate across the board," said Mandeville.
In a report released last year by the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics, scientists now say the disease is seldom caused by anything a doctor does in the delivery room. However, today many C-sections are still done in hopes of avoiding a lawsuit, even though C-sections are a more painful way to give birth, as well as more expensive, requiring a longer hospital stay, and carrying greater health risks.
So are women today experiencing unnecessary surgery partly because lawyers like Edwards scared doctors?
Edwards wouldn't talk to us about this, but his campaign sent us the following statement: "As a lawyer, Senator Edwards took his responsibility to determine if cases were merited very seriously and would spend months investigating his cases. He employed a full-time medical staff to make sure the cases he took were those with the most merit, and he would not go forward with any case without the support of experts in the particular medical field. He also believes that we need a national system in place that will weed out the meritless lawsuits without taking away patients' rights."
Maybe all of Edward's cases were good ones, where C-sections were called for. It's possible that's true, but the fearful atmosphere that these kinds of lawsuits create has far-reaching consequences. Consider the minister who will no longer hug a grieving parishioner because of lawsuit concerns or the teachers who are told not to touch their students, or allow them to climb onto their lap for fear of lawsuit.
It makes it hard to trust job references. Employers can't tell the truth about their former employees, as the truth might have legal consequences. This threatens our safety, too. It's one reason a nurse who was killing patients kept getting jobs at new hospitals. The previous hospitals were too afraid of lawsuits to warn others that they suspected the nurse had harmed patients at their hospital.
This kind of fear doesn't make Americans safer. Give me a break.