As mentioned in our last post, Stuart Taylor, Jr. has consented to let us reprint his point-by-point rebuttal to ATLA’s attack on his Dec. 15 Newsweek cover story “Lawsuit Hell” (see Dec. 8, Dec. 12, Dec. 15). We’ve split it into two posts of which this is the second.
Stuart Taylor, Jr.’s response (continued; for first part, click here):
7. Newsweek’s report that “according to one estimate, doctors waste $50 billion to $100 billion on ‘defensive medicine'” is, if anything, an understatement. The main source is a 1996 article by Daniel Kessler and Mark McClellan in The Quarterly Journal of Economics concluding on the basis of an empirical study: “‘Defensive medicine’ is a potentially serious social problem: . . . . We find that malpractice reforms that directly reduce provider liability pressure lead to reductions of 5 to 9 percent in medical expenditures without substantial effects on mortality or medical complications.” Applied to the nation?s current $1.65 trillion in annual medical expenditures, that comes to $82.5 billion-$148.5 billion. Newsweek did not claim that this inherently somewhat subjective estimate (or any other) is universally accepted. The two sources cited by ATLA, both more than 10 years old, predate a rapid rise in malpractice liability costs and insurance premiums. And in recent surveys, overwhelming majorities of doctors have said that they and their colleagues order many medically unnecessary tests to protect against lawsuits.
8. Nothing in ATLA’s “facts” undermines Newsweek’s statement that there have been thousands of lawsuits by people who hurt themselves at playgrounds. ATLA’s assertion that “insurers have played a large role in forcing compliance with CPSC standards and other safety changes” merely confirms that liability fears have led to the removal of thousands of challenging play structures such as monkey bars, jungle gyms, and high slides. ATLA’s claim that this has made playgrounds safer is unsupported by empirical evidence and disputed by some (though not all) experts. These experts say that the new, certifiably “safe” playground equipment is so boring that kids look for dangerous ways to use it, such as climbing over safety bars or the tops of swing sets and jumping off. And even if the boring new playgrounds are a bit safer, many parents complain that an obsessive search for absolute safety leads to such absurdities as bans on dodge ball and even on running.
9. ATLA admits the truth of Newsweek’s report on the sex offender who threatened to sue police for not catching him sooner. It claims that the moral is that most lawyers won?t take cases without merit. But the evidence is that many lawyers do take — and many judges allow — thousands of lawsuits that most Americans would deem without merit. Indeed, in an important new law review article based on massive evidence about asbestos lawsuits, Lester Brickman, a professor at the Cardozo Law School of Yeshiva University, claims: “Asbestos litigation has become a malignant enterprise which mostly consists of a massive client-recruitment effort that accounts for as much as 90 percent of all claims currently being generated, supported by baseless medical evidence which is not generated by good-faith medical practice, but rather is primarily a function of the compensation paid, and by claimant testimony scripted by lawyers to identify exposure to certain defendants’ products.”
10. ATLA challenges Newsweek’s report that a fifth-grade boy’s mother sued when he broke an arm shooting hoops on his school playground. The case is real: Bryan Raiken v. Toms River Regional School District, Ocean County, NJ docket L28992, location #0100975.
11. Despite ATLA’s claim that there is no “empirical evidence that 80% of malpractice claims are unfounded,” that is one conclusion of the definitive empirical study of medical error, the Harvard Medical Practice Study of thousands of cases in New York State, led by Dr. Howard Hiatt, former dean of the Harvard School of Public Health. It concluded that “more than one-half [of the malpractice claims] arose from instances in which there was neither negligence nor any identifiable injury, and one-third arose from instances of injury but no negligence; only one-sixth corresponded to ‘true’ negligent incidents.” Although that study is based on 1984 data, others have reached similar conclusions, and there is no evidence that the percentage of malpractice claims that are valid has grown.
Professor Vidmar’s claim that malpractice insurers do not settle frivolous cases does not refute Newsweek’s statement that insurance companies pay to settle many unfounded malpractice claims. The explanation is that by most legal definitions, only an extremely narrow category of claims that have absolutely no chance of succeeding in court are deemed “frivolous”; “unfounded” claims–meaning claims that in fact involve no medical negligence — are far more numerous, and sometimes succeed due to uncorrected errors by judges and juries. ATLA also neglected to mention the statement in the Vidmar document that it cites (in footnote 14) that Vidmar had “received remuneration” for preparing that document for use in a legal challenge to Indiana?s caps on malpractice damages.
12. ATLA seeks to imply (in footnote 12) that I am biased because of my past work as an attorney with Wilmer, Cutler & Pickering. It neglects to mention that I left that firm more than 23 years ago to become a New York Times reporter and did no tort reform work while there.