Originally published in 1986, this piece describes a legal climate that has not changed in the intervening 23 years. It also appears on the Commentary page
The advent of medical malpractice litigation as a growth industry has spawned many reactions. Physicians, not unexpectedly, respond with outrage. They adduce that most of the increase in malpractice claims and awards is the result of a faulty legal system coupled with the usual amount of greed commonly expressed by the planet’s most avaricious species. Spokesmen for tort lawyers aver that the medical profession is mainly responsible and that it should put its own house in order and stop blaming the legal profession for what is, in fact, a medical problem. Granting that malpractice does occur far more often than it should and that putting somebody else’s house in order is always preferable to attending your own, it seems unlikely that malpractice occurs any more frequently than it did in the past. While there are many reasons that can be invoked to explain why the problem has become so acute, a brief critical look at the law might prove illuminating in the context of this issue. It is certain that lawyers will not examine themselves with the same pecuniary glee they scrutinize us.
The proliferation of gigadollar malpractice awards is no isolated event. We are in close proximity to the big bang of torts. The dramatic change in this litigation has been put in place piecemeal by state courts over the past twenty years. When looked at collectively, this change depicts a legal system gone mad. Courts make law on complicated issues about which they have no competence. Since each judgment is made individually, but has a cumulative national effect, no consideration is given to the consequence of the court’s action. A court has held that it is “outrageous” to sell live polio vaccine since the killed virus vaccine is safer. It is safer, but less effective. That the risk of contracting polio from the live vaccine is one in six million and that there is nothing the manufacturer can do to prevent it is held to be irrelevant. So is US health policy, which prefers the live vaccine. Why, if this judgment stands, will any company manufacture the live product?
The fear of lawsuits is so pervasive that almost everyone, not just doctors, who provides a service or product that has the potential for risk finds insurance premiums rising to ruinous rates. The example of not-for-profit day care centers for children provides a poignant example. The Rockland After School Programs in Rockland County, New York is faced with a tenfold increase in liability premiums with certain coverage impossible to obtain, despite never having filed a claim. If your child falls off his bicycle at home, too bad. If it happens at school, you may have hit the jackpot. The day care industry is faced with extinction because of an insurance crisis. Is this the purpose of our system of “justice”? It is instructive to relate a statement made to me by a partner in one of the country’s major law firms when I asked where the justice was in something he had done. He replied that he was in the law business not the justice business.
Lawyers who can smell money better than French pigs can sniff out truffles stretch the concept of damage to fit almost anything and convince juries who seem to think money is dispensed by Parker Brothers to hand it out for almost any, or no, reason. The nauseating rush to Bhopal by hordes of tort lawyers is an example of self criticism greater than any observer can muster. Lawyers, judges, and juries have surpassed the powers of the most imaginative fabulist in setting damages not only for palpable harm, irrespective of intent or possibility of prevention, but in assessing emotional injury, and requiring that your product or service be free of all risk if you are to be free of liability. Our courts impose a standard God could not meet. After all, He made us imperfect. Some lawyer is doubtless preparing a brief and trying to find a process server.
So great is the caprice of our courts that you can be held liable for mislabeling a toxin even if the wording of the label was required by a federal agency. A court held the manufacturer of paraquat of mislabeling its can though the wording was mandated by the Environmental Protection Agency. The Searle Corporation faces the possibility of billions of dollars in damages because some patients using its intrauterine contraceptive device (IUD) have developed pelvic inflammatory disease. That the device passed extraordinarily stringent testing by the Food and Drug Administration and that a recent report found it one of the safest IUDs on the market may prove unpersuasive to whatever local courts and juries hear the cases brought against the company. There seems little doubt that IUDs will predispose to pelvic inflammatory disease in some women. The sky, no, the national debt’s the limit when a state court assesses a judgment against Texaco of eleven billion dollars for corporate malfeasance, an amount greater than the corporation’s net worth.
The problem runs deeper than the lottery tort law has degenerated to. The law has even better tricks ready to dazzle an already dazed observer. Tort lawyers respond to criticism and proposals for the reform of the malpractice mess by saying if we weed out our bad actors the problem will go away. This suggests that peer review of physician practice should be strengthened. The experience of an Oregon peer review group suggests that only lawyers will benefit from tighter physician scrutiny of physician practice. An attempt to discipline a supposedly incompetent surgeon inevitably brought lawyers into the case and eventually resulted in a successful antitrust action against the physicians on the peer review body. The legal imagination is cosmic. Ignore substandard practice and we have only ourselves to blame for malpractice action. Institute stringent practice standards and we are restraining trade. Regardless whether this antitrust judgment is upheld or not on appeal we can be sure that our system of law will not permit any sort of disciplinary action to be taken against doctors without the intervention of lawyers. We can also be sure that the considerable cost of this process will resemble those of malpractice actions where upwards of 70% of the money spent and awarded goes to lawyers. This distribution is true of all tort costs. Since the law is written by lawyers and since the slick among them reap fortunes from the business, don’t expect the law to be changed short of armed revolt.
Remember, we are considering a profession that now is seriously debating whether its members should knowingly allow their clients to lie on the witness stand. A federal appeals court recently overturned a murder conviction because the defendant’s lawyer refused to allow him to lie on the stand. The court held that the lawyer’s refusal to help the accused commit perjury violated his Sixth Amendment right to counsel. The Supreme Court will soon hear the case. I am really not making this up; see Nix vs Whiteside. The question under consideration is whether lawyers should be constitutionally required to help their clients commit perjury. If the Supreme Court upholds the appeals court, then lawyers will be guilty of misbehavior if they make their clients tell the truth. On reflection, that won’t be a change from current practice. [The Supreme Court unanimously overturned the lower court.]
What can physicians do when faced with a force greater than nature? Probably not much, except marvel at human ingenuity and self satire. Alternatively, we can consider why lawyers make so much money from malpractice cases. It is because we are so well insured. Without the million dollar policies there would not be much money in the business for a lawyer. Most doctors develop ventricular fibrillation at the thought of going naked in the malpractice market, but depending on the state in which you live there may be little risk. In Texas, your house, car, or personal effects cannot be seized to satisfy a malpractice judgment. Your salary cannot be garnisheed under any circumstances. Thus, your exposure without insurance is minimal. Doing without insurance is, of course, unfair to a patient with a legitimate grievance. But he is not likely to get much money anyway after the lawyers take their cut. Hospitals require that their staff members have certain minimum insurance coverage. While subject to change, these levels are usually well below what most physicians carry. Lawyers might further be discouraged if physicians insured themselves not for malpractice, but for the legal expenses incurred in defending a malpractice suit. I admit it’s not much of an idea, but it’s the best I can think up. See your lawyer; he’ll probably give you better advice.
Neil Kurtzman: The Law and Lewis Carroll. Sem Nephrol 6:1-2, 1986.