Should Doctors Vote Against John Edwards?
The Reasons Why Critiques of His Medical Malpractice Litigation Record Are Wrong

By ANTHONY J. SEBOK
anthony.sebok@brooklaw.edu
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Monday, Jul. 26, 2004

It seems that many medical professionals are upset that Senator John Kerry has selected Senator John Edwards as his running mate. But as I will argue in this column, they shouldn't be.

Of course, medical professionals know that medical economics is shaped by many forces. Still, many view malpractice lawyers are a serious threat to their profession - a threat so grave, to some, that it outweighs any other virtues that the Democratic ticket might have.

Detractors seem to fault Edwards for two basic reasons. First, they fault him because he was a trial lawyer - and in particular, a medical malpractice plaintiffs' laywer - and is supported by trial lawyers. Second, they fault him because, as a lawyer in private practice, he brought medical malpractice cases - and some of them, they believe, were, in retrospect, meritless.

In the end, however, neither of these arguments is persuasive.

What Doctors Are Really Complaining About Is Rising Malpractice Premiums

The total cost of medical malpractice insurance is less than two percent of all spending on health care in the United States. And medical malpractice litigation has been a part of American law for over 200 years. So how - in the view of medical professionals - can such litigation be a serious threat to medical care?

The answer, according to the professionals, 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 they continue to rise, serious damage to the medical profession, they say, may be done.

Rising Judgments: A Factor, But Not the Only Factor, In Rising Premiums

Why are the premiums rising? The professionals cite large malpractice damages awards. But the correlation is complex. For example, medical malpractice awards rose in the early and mid-'90s, while medical malpractice premiums stayed flat -- and even fell.

Moreover, many factors -including, but not limited to, malpractice judgments - contribute to insurance pricing. We know this because there have been at least two previous cycles of steep increases in premiums in the recent past, once during the '70's and once during the '80's. The medical system survived these shocks. What we have learned in the aftermath of these crises is that the medical malpractice market is strongly affected by changes in the investment environment as well as errors in judgment about how to increase market share and the management of the reserves needed to pay out claims.

Consider California's example. In 1975, the state passed tort reform statute designed to reduce medical malpractice costs. But it was not until 1988 -- when the state began to directly regulate malpractice insurers - that insurance rates actually began to decline. This suggests that factors other than damage awards are most responsible for increases in malpractice premiums.

Nevertheless, it's true that rising damage awards are indeed a factor in rising insurance costs. According to the Justice Department's Bureau of Justice Statistics, the typical (or median) damage award won by plaintiffs in medical malpractice suits has been increasing - and indeed, almost doubling, over the past decade - from $253,000 in 1992, to $431,000 in 2001. (The sample set for the comparison was the civil trials conducted in the 75 largest counties in the U.S.)

This is an annual increase of 8%. (By comparison, however, the average annual increase in national expenditures on health care is approximately 17%, and the average annual increase in the cost of medical malpractice premiums and self-funded reserves has moved almost in lockstep with the medical inflation rate.)

The Total Money Awarded In Malpractice Suits Has Actually Declined In Recent Years

In addition, more significant than this comparatively modest increase, is the fact that the total money awarded, as a sum of all the suits combined, actually declined slightly. Using the same DOJ statistics - taken 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 cases, for a total of $596 million.

In other words, medical malpractice litigation now involves fewer cases with bigger awards compared to ten years ago. The result is that almost every medical malpractice case seems to involve a huge award. But that may not be because there is a litigation explosion.

Instead, it may be because victims (and their attorneys) are no longer bringing small and "mid-size" cases. They bring only large cases - which are large precisely because the injuries suffered are horrible. This may be a result, in part, because "tort reform" has made it much more expensive and difficult for malpractice plaintiffs to pursue their claims in court.

Is it so wrong, then, that juries grant large awards in these cases? And if we really need to reduce the costs of medical care (and medical insurance) in this country, should it be the severely harmed victims of malpractice who pay the price?

Pain and Suffering Awards Are Needed to Address Genuine Harms to Victims

That raises a larger issue - and it is not only a legal, but a moral issue. The most popular form of medical malpractice tort reform is to impose a cap on pain and suffering awards. Senator Edwards, it seems, would oppose such "reform." But isn't his position the right one?

Consider a seven-year-old child who is terribly injured by medical malpractice, and faces an estimated sixty-five years of living with that injury - which means, in this case, living with constant and severe pain. A jury might award the child millions for future medical care and millions for "pain and suffering." But in state with a cap, the pain and suffering award could be reduced to only $250,000.

Certainly some victims' pain and suffering must exceed that amount. So the argument against pain and suffering awards isn't that they are being lowered to represent actual pain and suffering. It is simply that society can't afford to fully compensate victims of medical malpractice. So it simply will not - and 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? Usually when a society faces a social problem it tries to spread the cost of fixing that problem as broadly as possible, or it asks the better off to chip in a little more. Why on earth would we solve the problem of access to medical malpractice by making the victims pay for the reform?

If medical insurance rates are too high, there are other answers. For one, the government - not doctors or their insurance companies - could pay some part or component of malpractice awards. Then all taxpayers would, in essence, insure each other against the risk of being victims of medical malpractice. A modest "bailout" of the troubled but vital medical industry would be preferable to revictimizing the victims of medical malpractice by refusing to address their genuine suffering.

The "Character" Issue Is a Non-Issue: Edwards's Alleged Use of "Junk Science"

Now, let's go on to the more specific complaint about the cases Edwards himself brought as a plaintiffs' lawyer.

Throughout his career, Edwards won many large verdicts against obstetricians in North Carolina. Indeed, he reportedly developed a reputation of being so fearsome that insurance companies settled as soon as they heard he was the plaintiff's lawyer. 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." (Click here to see a typical criticism.)

That's not true, however. Having reviewed the cases Edwards's critics have cited, I found that what they show is that 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.

It turns out that now -- many years later, in light of additional evidence and science -- it seems that the defendants had the better of the debate. 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.

One of the cases the critics dwell on occurred in 1979. In that case, Campbell v. Pitt County Memorial Hospital, 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 (among other points) 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.

One of the chief tools that Edwards used -- the fetal heart rate monitor reading -- is now hotly debated. In the late '70's, when Edwards first started trying these sorts of cases, many obstetricians felt that increased used of fetal heart rate monitors would lead to safer deliveries. Furthermore, lawyers like Edwards thought that, since the monitors produced a permanent record, it would be easier to prove whether a doctor ignored certain warning signs after the fact.

Indeed, at the time, even the defense expert seems to have operated under these assumptions. 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. And as Edwards tells it in his book, Four Trials, even the defense expert hired by the obstetrician admitted in deposition that he would have elected for a Caesarean section at the outset. He also admitted that, given his reading of the heart rate monitor records, he would have recognized fetal distress over an hour earlier than the defendant.

Now, it 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 itself be the culprit. With the benefit of hindsight, many medical experts now feel that the monitors produce too many false alarms that have led to too many unnecessary Caesarean sections -- and perhaps to 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. There might be lawyers who use junk science--theories that he or she knows have no acceptance among the scientific community. There is no reason to assume that only plaintiffs lawyer are guilty of this (when lawyers for Big Tobacco presented scientists who denied that smoking is addictive or causes cancer, what were they thinking?). But in the cerebral palsy cases argued by Edwards the jury had to choose between two plausible theories--and they chose the one presented by Edwards.

A close reading of the Campbell case reveals that the hospital may have given the jury a few reasons to pick Edwards' theory over theirs. 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. He pointed out that the Campbells weren't even 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. At the end of the trial, the jury found the hospital liable for failing to respect the Campbell's right to make decision based on informed consent.

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.

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 twelve laypeople do better? Wouldn't expert juries - composed of doctors - be preferable?

A lot of experts--many of them quite liberal--agree that having juries resolve difficult questions of medical safety by deciding whether a doctor was doing what the other doctors in his locality were doing can produce a great deal of uncertainty for plaintiffs and defendants alike. And many experts agree 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. Lots of experts--myself included--think the tort system in America seems to have some peculiar priorities that other systems would reject.

These are good questions - but the answers, whatever they may be, 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, which is to compensate hurt, ill, and suffering people who have been the victims of medical malpractice.

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 looks nothing like America's. But North Carolina is not Sweden--and that fact is not to be laid at Edwards's door.

If Anything, Edwards' Cases Show That He Values Personal Responsibility

In certain ways, Edwards's history as a medical malpractice lawyer ought to have a positive moral valence for Americans -- who are deeply attached to the idea of personal responsibility. By working within the system of American tort law, Edwards not only represented his client honestly, he also showed that he subscribes to mainstream American values - and that is an important thing in a Vice President.

Americans are also deeply attached to the idea of personal responsibility. Doctors sometimes cannot understand why lawyers urge juries to look for the person responsible for everything that goes wrong. Lawyers do this because in our culture injured people don't get any help unless they can blame their injuries on someone. For the most part, Americans do not think that someone's bad luck is anyone's business but their own.

However, the flip side of personal responsibility is that if someone wrongs another, then the wrongdoer is responsible for making things right. Once one has committed a wrong, one is responsible for repairing the injury, no matter how large it ends up being. So, while the little girl who has cerebral palsy through bad luck might get nothing (except perhaps Social Security), Jennifer Campbell has a right to get everything she lost back--if she can proved that she was wronged.

American tort law is anti-hierarchical and individualistic in way far more extreme than any other Western nation. In some ways, the values at the root of our culture are in tension with the values of rationalism and equality, which many physicians think should characterize a modern health care system. They may be right. But they should not hate John Edwards for applying to his clients' cases the values which are at the foundation of American tort law. Americans have complex, sometimes contradictory, feelings about justice and money. And John Edwards understands that--which is why he was a great lawyer and could be a good Vice President.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.

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