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Medical Malpractice Lawyers Deserve More Credit

Dabbling in dirty politics, George W. Bush has been turning malpractice lawyers into dirty words. They file "junk lawsuits, they file "frivolous lawsuits," they're greedy and, for sure, they are driving doctors out of business.

True to political form, President Bush is a divider, not a uniter. He pits doctors against lawyers, medicine against the law. In the president's larger world of fantasy where it's good guys like him taking on bad guys, casting malpractice lawyers as the nasties comes naturally.

But it doesn't come factually. His own department of Health and Human Services reports an 8.9 percent decline last year in payouts for malpractice claims. Last month The New York Times reported: "For all the worry over higher medical expenses, legal costs do not seem to be at the root of the recent increase in malpractice insurance premiums.... The more important factors appear to be the declining investment earnings of insurance companies and the changing nature of competition in the industry."

After insurance companies lost their shirts on Wall Street, they lost their scruples. "When the reserves of insurers shriveled, companies began to double and triple the costs for doctors," the Times reported. Instead of pressing Congress to limit how much doctors and hospitals owe their victimized patients, why isn't President Bush calling for caps on what insurance companies can charge?

In demonizing lawyers, the president is adopting the shifty tactic of Ronald Reagan when he attacked poor people by telling stories about a welfare queen who drove around in a Cadillac. The living and breathing queen, and her fabled El Dorado, were never found. But welfare recipients were smeared and President Reagan preened as a fighter of corruption. Without doubt, some were scammers. No doubt, too, a few lawyers have been less than saintly in the pursuit of an easy dollar.

That's far from the reality, though, in which most malpractice lawyers work. Living by their wits, they are the ultimate risk-takers. Contingency fees, which are usually one-third of awards, come only if they win. The cost of researching a lengthy and complex case, paying experts, taking depositions from witnesses: All this is upfront money, with no assurance it will be recovered by a jury verdict or pretrial settlement. It's in corporate law, not plaintiff trial law, where billable hours, regardless of outcome, guarantee salaries close to or beyond seven figures.

It's a myth that malpractice lawyers clog the courts with frivolous lawsuits: The chances of winning by duping judges and juries are remote. Why risk your own money?

The frivolity problem doesn't lie with malpractice lawyers or trial lawyers. Look to lawyers working for corporations and businesses. In a report titled "Frequent Fliers: Corporate Hypocrisy in Accessing the Courts," Public Citizen, the Washington nonprofit, found that in 2001 "businesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be penalized by federal judges for filing frivolous claims or defenses." Businesses, not private citizens, are lawsuit happy. They go to court four times more than trial attorneys representing individuals.

In my personal life, I've called on both lawyers and doctors for aid. In separate cases, lawyers helped me win judgments against The Washington Post, American University and the District of Columbia. Surgeons have brought me through three operations. I was well-served by all these skilled professionals, and I imagine that's true for a majority of those seeking legal or medical help.

Most lawyers and doctors give their conscientious best to clients and patients. Much praise to them all. It's despicable that President Bush is stoking a war between the two professions. Trashing trial lawyers ignores what the Institute of Medicine estimates: Between 44,000 and 98,000 people die annually in hospitals from preventable errors. Where is the president's crusade against that?

On Feb. 28, Todd Smith, a medical malpractice lawyer and president of the Association of Trial Lawyers of America, appealed to the American Medical Association for a meeting to seek common ground solutions to the problems of patient abuse and malpractice insurance rates. This is the fifth request in recent years. No positive response yet. The AMA appears to have a new Hippocratic Oath: First, talk to no lawyers.

[Colman McCarthy, a former Washington Post columnist, directs the Center for Teaching Peace in Washington.]

© 2005 National Catholic Reporter
© 2005 Gale Group