2003-02-05 � On the Evil of Trial Lawyers

So, I suppose if you live in my neck of the woods you're following all this doctor business. Actually, there's been quite a lot of doctor business just lately. Here in New Jersey, the doctors have all but walked off the job. They're still staffing emergency rooms, but if your condition isn't life threatening, you're not getting treated. See, all the doctors in the state are on the State House Steps demanding tort reform instead of emptying out their waiting rooms. The doctors say that they can't afford their malpractice insurance anymore and the solution, as they see it, is to prevent those silly patients from being able to recover "non-economic damages" when they fall victim to malpractice.

One of the coolest things about studying law is being let in on something of a secret code. Lawyers use a number of words that are very common and assign them specific legal meanings that often differ radically from their common meanings. For those of you lucky enough to be blessed with a dearth of legal education and a complete disinclination to look anything up in Black's Law Dictionary, let me fill you in on one of these code words.

"Damages" is a term that means money. When you hear a lawyer say damages it always means money, it never means damage. Clever no? When I say "my client is seeking damages" I'm really saying, "my client is out for money." See how that works?

Ok. Now, within the concept of damages, there are different kinds of damages. Economic damages means money for economic losses. If I was in a hospital bed and couldn't work for a week, I suffered an economic damage of one week's pay. Additionally, my hospital bills are economic damages because they represent money I am forced to spend that I would not have had to spend had I not suffered an injury serious enough to land me in the hospital. These damages can be exactly calculated making them economic damages.

So, what then are non-economic damages? These are damages that cannot be quantified on a balance sheet. For example, these include losses suffered when one's reputation is sullied. What's that really worth? It's a tougher question isn't it. This is also the category of damages under which we find compensation for the frivolous emotional distress and the evil pain and suffering. It is this particular kind of damage which has the New Jersey doctors all rowdy.

To be honest, I don't know what to think of this. One of the reasons it's prestigious to become a doctor is because of all the hurdles we make doctors jump through before we confer that title on them. And with that title comes not only a great deal of accomplishment, but an enormous responsibility to those who come under the doctor's care.

Tort law, (no, not the law of pastry. Tort law is the law of our duties to one another) is the primary means of keeping those with whom we enter into a fiduciary relationship from pursuing interests radically outside of our own. How do we know Dr. Smith down the street isn't going to turn Josef Mengele on us? Well aside from the fact he's not evil, the best answer is that we'd sue him. And under what theory would our suit be prosecuted? It would move ahead under a tort theory, a theory that the good doctor breeched a duty he owed us.

In a very real way, tort law is in place as it is to protect patients. It is for this reason that I become nervous when large groups of people who would be considered defendants in these kinds of tort cases begin clamoring for reform of the tort law. It's really more akin to violent offenders holding rallies demanding reform in sentencing procedures to favor less punishment than it might appear at first blush.

Let's take a recent case that made significant headlines as an example. Recently a woman named Stephanie Means sued Dr. James Guiler because a video tape of her hysterectomy showed Dr. Guiler branding the initials of the school where he earned his medical degree into the organ before removing it. I'm not kidding. You can read about it here and here.

In her suit, Mrs. Means is seeking damages for emotional distress. Yes. She want's the doctor to pay her for giving her sad feelings when he branded her womb with the initials KU.

According to the reports, the Doctor was a Kentucky Wildcat booster and was a sponsor of "Wildcat Madness," a fund raiser for the university's basketball museum. In a statement he read to reporters, Dr. Guiler said that the marking was done so that he could orient the organ and that he "felt this was honorable since it made reference to the college of medicine where [he] received [his] medical degree."

Given that, I can't imagine why she didn't feel honored by this sign of respect and show of support for the doctor's favorite basketball team. Can you?

So, a suit is underway against the doctor and is being advanced under a tort theory. And it is absolutely true that no matter how unlikely a defense "I was honoring my alma matter by branding its initials on your uterus" may seem to us, the doctor will be given a full opportunity to convince a jury that he did, in fact, do nothing wrong. He's probably pretty frightened about now and it is unlikely that he will ever perform a similar respectful act again, even with just the threat of a verdict for non-economic damages.

Can you imagine what might happen if the doctors here are successful in virtually eliminating non-economic damages as a result of tort reform? Doctors could brand love notes and grocery lists into organs they intend to remove virtually at will. What's the worst thing that could happen? The doctor has to donate his time to make up for the economic loss to the patient of his bill?

The president is all for this kind of tort reform. He stood in front of the nation during the state of the union and went on and on about the evil trial lawyers who are bringing down American health care with their frivolous suits. Even if that position has any merit, a supposition I find extremely unlikely, but even if it did, would the answer really be to take away the only protection patients have against those acts of doctors that would lead to non-frivolous suits?

Yes, it's a hassle to be sued. Yes, it's expensive and can be all the more expensive if you lose. Yes, malpractice insurance rates are very high. But the answer isn't in removing recourse from victims of malpractice. The answer lies in greater attention to patient care, which can only be reached when the strangle hold the HMOs have on the American health care system is relaxed a little and doctors are once again able to think of their patients as people and not as cogs in a machine running rough shod over the sick.

I guess it's pretty easy to blame the plaintiff. I know it's even eaiser to blame the plaintiff's lawyer, or as the president says, the trial lawyer. But in the end, if the doctors succeed in forcing this tort reform all they'll do is erode the only layer of protection you and I have and the system will remain as damaged and regressive as ever.

Posted at 4:49 p.m.

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