September 30 2009

The Trouble with Trial Lawyers

Nicole Kurokawa Neily

Among the bitter partisan fights over health care, a few areas of agreement exist - one of which is the need for medical malpractice reform. Ironically, that seems to be about the only issue that Congress has avoided addressing in any meaningful way.

Yesterday's Wall Street Journal explored the power wielded by the trial lawyers, and the many reasons that their influence will not be curbed. Writes Philip K. Howard:

Trial lawyers are agents, and their claims are only as valid as those they represent. They argue, of course, that they are champions of malpractice victims. As Anthony Tarricone, president of the trial lawyers association (called the American Association of Justice) put it: "Trial attorneys see first-hand the effects medical errors have on patients and their families. We should keep those injured people in mind as the debate moves forward." But under the current system, 54 cents of the malpractice dollar goes to lawyers and administrative costs, according to a 2006 study in the New England Journal of Medicine. And because the legal process is so expensive, most injured patients without large claims can't even get a lawyer. "It would be hard to design a more inefficient compensation system," says Michelle Mello, a professor of law and public health at Harvard, "or one which skewed incentives more away from candor and good practices."

Trial lawyers also suggest they alone are the bulwark against ineffective care, citing a 1999 study by the Institute of Medicine that "over 98,000 people are killed every year by preventable medical errors." But the same study found that distrust of the justice system contributes to these errors by chilling interaction between doctors and patients. Trials lawyers haven't reduced the errors. They've caused the fear.

An effective justice system must reliably distinguish between good care and bad care. But trial lawyers trade on the unreliability of justice. It doesn't matter much whether the doctor did anything wrong-a lawyer can always come up with a theory of what might have been done differently. What matters most is the extent of the tragedy and that a case holds potential for pulling on a jury's heartstrings.

As health care costs continue to soar, the last thing our system should be doing is encouraging "defensive medicine," whereby doctors order expensive, unnecessary tests just in case. Certainly, patients who have been wrongly injured by their caregivers are entitled to just compensation; however, the system, as it stands, has been grossly abused and threatens to destabilize the health system at large. States that have capped damages, as Texas and Missouri have done, have saved money and increased quality of care.

Congress should not to ram through an unwieldly, contentious health care reform bill under cover of darkness. It's time to take a step back and make incremental changes that everyone - both parties - can believe in. Tort reform is a great start.

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