Last week I compared veterinary care with health care for humans, based on cost and quality. Several readers pointed out a big factor in the high cost of human care that I neglected to mention: lawyers. True enough. Very few dogs choose to retain counsel. And there’s no doubt that lawsuits add billions of dollars – probably tens of billions – to the cost of our medical care. The question is what we get in return for all the money we’re forced to spend on the legal system.
A lawyer friend of mine has had several children. Each time he and his wife are blessed with a pregnancy, they make every effort to prevent the OB-GYN from learning that he is a lawyer. The reason: They don’t want the doctor to run unnecessary tests and procedures, some of which carry their own risks, in order to eliminate the risk of litigation. Is my friend an idiot? Doesn’t he want to use the threat of legal action to keep his doctor in line? The conventional wisdom, of course, says that lawyers and lawsuits play a vital role in deterring abuse by punishing those guilty of malpractice.
The facts say otherwise. My friend knows that although many lawyers get rich off medical malpractice cases and many patients do indeed win large damage awards, there’s no connection between the fear of lawsuits and better medical care. In fact, there’s not even a connection between malpractice lawsuits and actual cases of malpractice.
In two separate studies in recent years, a team of researchers at Boston’s Brigham and Women’s Hospital and the Harvard School of Public Health has shown that the vast majority of malpractice cases arise from events that don’t involve any medical malpractice. The most recent of the studies, released in March this year, compared 14,700 medical records from Utah and Colorado with cases of medical malpractice. The results: “Less than one-quarter of the patients who filed a malpractice claim were found to have suffered injuries caused by negligence.”
Meanwhile, the legitimate victims of malpractice tend not to sue. So in general, lawsuits don’t serve legitimate victims, and the people who sue aren’t victims.
If you believe that we need lots of lawsuits to “send a message,” here’s the message we’re sending to America’s doctors: “Don’t practice medicine, because you may be hit with a very expensive lawsuit for something that you didn’t do. On the other hand, if you choose to continue to practice medicine and you make a big mistake, don’t worry about it, because you probably won’t get sued.” Nothing like the promise of swift injustice to keep people on the straight and narrow.
Bottom line: We’re getting zero return on the billions we spend for malpractice lawsuits. Let’s keep this money in the medical system, where it might actually save some lives, instead of sending it to the legal system.
It’s not just the medical field where people are having trouble finding the benefits of litigation. When it comes to the environment, the threat of a large punitive-damage award is supposed to be a valuable tool in persuading polluters not to dump sludge into our rivers and streams. It’s a great theme for a Julia Roberts movie or an Al Gore speech, but reality isn’t cooperating.
Across town from the Harvard School of Public Health, Professor Kip Viscusi is an economist at the Harvard Law School. He tried to find out how much the threat of punitive-damage awards limits bad corporate behavior.
Viscusi said in a speech last year at the Manhattan Institute, “In attempting to answer this question, I set out to look at every possible index of a deterrent effect that I could find. I looked at toxic chemical accidents, toxic chemical accidents involving injury and death, toxic chemical releases … reductions in toxic discharges that were reported, reductions in surface water discharges, reductions in total releases, accidental-fatality rates … and I found that there’s no difference in the performance of the states without punitive damages. Michigan, Nebraska, New Hampshire and Washington do not permit punitive damages. The state of Louisiana does not permit it for product liability. … These states do not perform worse on any of the safety indices I just mentioned. … There is no evidence of any deterrent effect of punitive damages in states that have them as opposed to those that don’t.
“I should also mention that if you look at the literature, there is no evidence for a deterrent effect from punitive damages whatsoever. There’s no empirical study that’s ever been done that shows that punitive damages have any constructive function. What we have now is a penalty system with no benefits and all costs.”
Let’s eliminate this penalty system. To be clear, punitive damages, as the name suggests, are punishments for wrongdoing. So if we eliminated them, we could still allow plaintiffs to sue for all their medical expenses, all their lost wages, all the harm they actually suffered – just no more billion-dollar judgments to “send a message.”
These messages have gotten way too expensive. And if you think about it, there are all kinds of incentives for executives and doctors not to kill you. First and foremost, killing customers is bad for business, whether or not there’s a punitive-damage award. So let’s send a new message: Cut the litigation tax!
* January 2000: Kathleen Robertson of Austin Texas was awarded $780,000.00 by a jury of her peers after breaking her ankle tripping over a toddler who was running amok inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving tyke was Ms. Robertson’s son.
* June 1998: A 19 year old Carl Truman of Los Angeles won $74,000.00 and medical expenses when his neighbour ran his hand over with a Honda Accord. Mr. Truman apparently didn’t notice someone was at the wheel of the car whose hubcap he was trying to steal.
* October 1998: A Terrence Dickson of Bristol, PA, was exiting a house he finished robbing by way of the garage. He was not able to get the garage door to go up, the automatic door opener was malfunctioning. He couldn’t re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, so Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found, and a large bag of dry dog food. This upset Mr. Dickson, so he sued the homeowner’s insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of half a million dollars and change.
* October 1999: Jerry Williams of Little Rock, AK was awarded $14,500.00 and medical expenses after being bitten on the buttocks by his next door neighbour’s beagle. The beagle was on a chain in its owner’s fenced-in yard, as was Mr. Williams. The award was less than sought after because the jury felt the dog may have been provoked by Mr. Williams who, at the time, was shooting it repeatedly with a pellet gun.
* May 2000: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, PA, $113,500.00 after she slipped on a spilled soft drink and broke her coccyx. The beverage was on the floor because Ms. Carson threw it at her boyfriend 30 seconds earlier during an argument.
* December 1997: Kara Walton of Claymont, Delaware, successfully sued the owner of a night club in a neighbouring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the lady’s room to avoid paying the $3.50 cover charge. She was awarded $12,000.00 and dental expenses
Lawyer of the week: Peter Herbert
The barrister Peter Herbert is acting for Carole Baptiste, a former social worker who became the first person in Britain to be convicted for obstructing a public inquiry, that into the death of Victoria Climbiï¿½. She was fined ï¿½500.
What are the wider implications of such a conviction? The conviction simply seeks to expose the extent to which the State is prepared to go in excerting its authority over the individual in failing to consider the public interest in prosecuting a former social worker with a history of serious mental illness where she gave detailed evidence, albeit late.
What have been the most surprising aspects of this case? The way in which the media have helped to turn the spotlight away from the real issues and assisted the avoidance of the moral responsibility we all share in failing to protect children in such circumstances.
What was your worst day as a lawyer? My worst day, and I have had a few, was having to maintain my professional integrity and personal dignity against the thinly disguised racism of a Crown Court judge. What was your most memorable experience as a lawyer? My most memorable experience is hearing a founding member of the band Earth Wind and Fire charm a Chancery judge with his explanation that his love of his music, his God and his people was all the explanation the court required as to why his accounts were not in order.
Who has been the most influential person in your life and why? Dr Martin Luther King was my hero as child, as a fighter for the poor and the dispossessed of all races – I remember crying when he was shot in Memphis. The influence on me is based on the simple fact that there are few people who are prepared to give their life for what they believe.
Why did you decide to become a lawyer? Initially because I did not wish to become a doctor or a teacher, but later knew it was partly because I enjoyed the sound of my own voice.
What would your advice be to anyone wanting a career in law? Spend at least two years travelling and if possible be a community lawyer or teacher in a developing country. You will learn more wisdom from that than from any course you ever attend.
If you had not become a lawyer, what would you have chosen and why? I probably would have become a full time politician or a diplomat. I enjoy people and politics and I have an interest in travel . . . particularly to follow the sun.
Where do you see yourself in 10 years’ time? I would like to be sitting as a judge in a courthouse in the Caribbean, having built a school for children orphaned by the civil war in Sierra Leone, but coming back to England occasionally to meet the new black Lord Chancellor . . . I have a dream . . .