Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘John Edwards’

Medmal reform at the debate

NORMA-JEAN LAURENT: Senator Kerry, you’ve stated your concern for the rising cost of health care, yet you chose a vice presidential candidate who has made millions of dollars successfully suing medical professionals. How do you reconcile this with the voters?

KERRY: Very easily. John Edwards is the author of the Patients’ Bill of Rights. He wanted to give people rights. John Edwards and I support tort reform. We both believe that, as lawyers — I’m a lawyer, too. And I believe that we will be able to get a fix that has eluded everybody else because we know how to do it.

KERRY: It’s in my health-care proposal. Go to johnkerry.com. You can pull it off of the Internet. And you’ll find a tort reform plan.

Now, ladies and gentlemen, important to understand, the president and his friends try to make a big deal out of it. Is it a problem? Yes, it’s a problem. Do we need to fix it, particularly for OGBYNs [sic] and for brain surgeons and others? Yes.

But it’s less than 1 percent of the total cost of health care. […]

CHARLES GIBSON: Mr. President, a minute and a half.

BUSH: Let me see where to start here. […]

BUSH: And what are his health programs? First, he says he’s for medical liability reform, particularly for OB/GYNs. There’s a bill on the floor of the United States Senate that he could have showed up and voted for if he’s so much for it.

Secondly, he says that medical liability costs only cause a 1 percent increase. That shows a lack of understanding. Doctors practice defensive medicine because of all the frivolous lawsuits that cost our government $28 billion a year. […]

GIBSON: Senator Kerry, we got several questions along this line, and I’m just curious if you’d go further on what you talked about with tort reform. Would you be favoring capping awards on pain and suffering? Would you limit attorney’s fees?

KERRY: A follow-up…

GIBSON: Yes. A follow-up on this for…

KERRY: Yes, I think we should look at the punitive and we should have some limitations.

But look, what’s really important, Charlie, is the president is just trying to scare everybody here with throwing labels around. […]

GIBSON: […] Thirty seconds, President Bush.

BUSH: You’re right, what does matter is a plan. He said he’s for — you’re now for capping punitive damages?

BUSH: That’s odd. You should have shown up on the floor in the Senate and voted for it then.

Medical liability issues are a problem, a significant problem. He’s been in the United States Senate for 20 years and he hasn’t addressed it.

We passed it out of the House of Representatives. Guess where it’s stuck? It’s stuck in the Senate, because the trial lawyers won’t act on it. And he put a trial lawyer on the ticket.

As the Washington Post notes, “Kerry glossed over his opposition to” medical malpractice caps. Unfortunately, the Post’s “Debate Referee” adjudicated that Bush exaggerated the effect of caps–and then proceeds to make the same mistake Bush criticized Kerry for, by omitting the effect of caps on defensive medicine costs by taking a statement in a CBO report out of context. As I noted on Point of Law,

What the CBO says is that, assuming medical malpractice expenses are 2%, reducing those expenses 25% will, as a matter of simple arithmetic, reduce total health care expenses by 0.5%. But, as Dr. Chusid acknowledges, that 2% assumption for medical malpractice expense is a great underestimate. There’s more than just insurance premiums: there’s the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, on time doctors spend papering the record to protect themselves in event of suit, and on self-insurance–many hospitals don’t use a middleman insurance company. And for a number of disciplines, the malpractice insurance rate is unquestionably higher than 2%–the average OB/GYN pays a quarter of her net income in premiums.

The Post didn’t referee–they took sides in a controversial public policy debate, and did so on inaccurate information.

Mickey Kaus calls Kerry’s “I’m a lawyer too” the “worst-polling line of the night.”

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Edwards’ lawyerly debating skills

The rhetorical techniques that John Edwards employed in his opening and closing arguments before juries were on display Tuesday night in the vice presidential debate, according to lawyers who crossed swords with him in his home state of North Carolina (Lisa Hoppenjans, “Lawyers: Edwards used trial technique”, Winston-Salem Journal, Oct. 6). Thoughts Online and Beldar discuss whether success as a trial advocate nowadays critically depends on the ability to “think on one’s feet”, as opposed to delivering a pre-scripted message, given the emphasis of modern procedure on avoiding surprise at trial. (My own impression is that Edwards was strongest when delivering material suitable to being prepared in advance, and less strong when obliged to depart from the script.) Several commentators note that Edwards saved many of his most slashing attacks for his final round of discussion on a given question, at which point Cheney would have no chance to reply. And George Will thinks Kerry’s selection of Edwards as running mate was a blunder, though for reasons unrelated to the debate (“GOP power plan”, syndicated/Washington Post, Oct. 7).

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“We do have too many lawsuits”

So said John Edwards, in tonight’s vice presidential debate with Dick Cheney.

As he has done many times before, Edwards also said he was proud of his record of suing drug companies, insurance companies and HMOs. He did sue those kinds of defendants sometimes, but his actual specialty was suing doctors. Why won’t he say he was proud of that, too?

Unless I missed it, Cheney did not do much to contradict Edwards’ claim that his proposed liability reforms will keep bad cases out of court. For more on that question, see my August WSJ piece.

More: Why, asks Michael Graham of National Review Online. wasn’t Cheney familiar with Edwards’ legal cases? It’s hardly as if they’re above criticism. On the senator’s CP cases, also check out the correspondence back in August between Ramesh Ponnuru and an unnamed letter-writer on NRO “The Corner”. Plus: Prof. Bainbridge comments. FactCheck.org (not .com!) sorts out the Halliburton stuff. Jay Nordlinger says Edwards “sounded more anti-lawsuit than Cheney did”. And CBS News reports, based on feedback from its live poll (in which viewers graded the debaters as they went along using their remote controls), that: “Both candidates scored high points when they talked about the need to limit lawsuit and keep frivolous lawsuits out of the system, Cheney when he mentioned that doctors were being driven out of practice ?- especially OB-GYNs, which gave him very high ratings with women. Edwards did well when he said lawsuits must be limited and when he talked of his own experience fighting in the courts.” (“Uncommitteds Tab Edwards Winner”, Oct. 5).

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Fieger does it again

We’ve previously covered the exploits of Geoffrey Fieger (Jul. 24; May 31, 2001). Fieger is nationally known for defending Dr. Kevorkian, but he’s also had over $100 million in jury verdicts thrown out because of his outrageous behavior in court. Fieger’s strategy is to inflame the jury, get a huge verdict, and then hope it stands up in response to the inevitable defense motion for new trial and appeal. Most recently, in a cerebral palsy case Fieger sought to blame on a Dr. Ronald Jordan, he delivered the following in a closing argument:

“Please, please, nurses,” Fieger said in his closing arguments, “I’m a little baby, I want to play baseball, I want to hug my mother, I want to tell her that I love her. Help me. Please help me to be born.”

Judge Lawther “called it a ‘performance far beyond the bounds of theatrical license,’ designed to appeal to the jury’s natural sympathy through passion and prejudice–two factors the law says should not enter into verdicts.” (Compare: John Edwards’s closing argument in a similar case discussed in a New York Times article we linked on Jan. 31.) A Cuyahoga County jury voted 6-2 to award $30 million to Walter Hollins in May, and the judge tossed the verdict last week. Fieger defends his closing as “his specialty.” Just so. (James F. McCarthy, “Judge rejects $30 million for malpractice”, Cleveland Plain Dealer, Aug. 27). (Updates: more on case, Oct. 11; verdict reinstated, Nov. 20).

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Edwards and jury selection

The Washington Times does some reporting on John Edwards’s trial practice in North Carolina. (“Edwards’ malpractice suits leave bitter taste”, Aug. 16). Reporter Charles Hurt talks to local doctors about Edwards’ cerebral palsy cases and also relates the following story about the role of jury selection in one of the future senator’s prominent cases:

“In 1991 [in Wake County], he won $2.2 million for the estate of a woman who hanged herself in a hospital after being removed from suicide watch. … During jury selection, Mr. Edwards asked potential jurors whether they could hold a doctor responsible for the suicide of their patients.

“I got a lot of speeches from potential jurors who said they did not understand how that doctor could be responsible,” Mr. Edwards recalled in an interview shortly after the trial. Those persons were excluded from the jury.

The article doesn’t say whether Mr. Edwards had to use up his peremptory challenges against the skeptical jurors or was able to get them purged for cause. Either way, it’s a reminder of one way the political process is both more open to diversity and more responsive to public opinion than the trial process: you can’t eject citizens from the voter pool just for holding the wrong sorts of views.

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Kerry, malpractice and “going to China”

For at least several weeks Sen. Kerry has been publicly floating the theme that he and running mate John Edwards can achieve medical malpractice reform in the same way that Republican Richard Nixon could achieve rapprochement with China, presumably because their ticket would have the sort of credibility with the litigation lobby that the late GOP president had with dedicated anti-communists. The trope appeared in a Cape Canaveral, Fla. speech in late July (see National Public Radio audio coverage, Jul. 26) and more recently in response to a question in Grand Rapids, Mich. (Unofficial Kerry for President blog, Aug. 2; similarly (and by same writer), Doctors and Nurses for John Kerry site; Robert S. Greenburger, “Doctors Diagnose Kerry as High Risk”, Wall Street Journal, Aug. 5 (sub); see also Joel B. Finkelstein, “Edwards’ trial lawyer past raises red flags for doctors”, American Medical News (AMA), Jul. 2).

We reported on the controversy last week (Aug. 5). Martin Grace has several follow-up comments (Aug. 6) on the breeziness of the Kerry proposals toward federalism, as well as on the apparently incurable Democratic tendency to blame the whole problem on insurance providers, even though “the largest med mal providers in a given state tend to be owned by the docs” who have no very obvious incentives to self-gouge (more, more). And George Wallace at Decs & Excs (Aug. 5) has more about Edwards’ enthusiasm for curtailing the McCarran-Ferguson Act, which leaves insurance regulation to the states. (Update: David Giacalone, Martin Grace and Wallace have much more on this, follow the links).

A reader on Capitol Hill writes to say that from the appearance of things, the Kerry proposals appear to differ little if at all from proposals repeatedly put forth by congressional Democrats as alternatives to GOP-sponsored medical malpractice reform. Those proposals (the correspondent adds) have been at best weak as a way of curtailing litigation, and in some instances would actually encourage it. For example, the Democratic alternative Rep. Conyers offered to H.R. 4280 can be examined in the Congressional Record dated May 12, 2004. It includes a (toothless) mandate for nonbinding mediation of state court malpractice cases, and takes care to specify that this mandate will pre-empt and invalidate all otherwise prescribed forms of alternative dispute resolution — including those currently required in some states which do much more to curb litigation — as well as all contractual barriers to suit. Having looked through this Conyers amendment, however, I should probably retract my hasty assumption (voiced last week) that the Democrats on the Hill had been big defenders of federalism on this issue — their bill seems just as willing as the Republicans’ to dictate to state courts, it just wants to dictate different things.

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The Men Behind Edwards

Our editor, Walter Olson, has covered this territory before, but it’s worth revisiting as Kerry and Edwards make their way across key states in their bus caravan campaign. The report on the men behind John Edwards at EdwardsWatch makes for interesting reading.:

According to published reports, Edwards received $4.65 million from 3,220 lawyers, 29 paralegals, 17 legal assistants and 555 people with the same address as a personal injury attorney contributor (such as a spouse or close relative). The $4.65 million represents 63% of the total money raised by Edwards. Over one-third of those contributors gave the maximum $2,000..

His biggest contributors include patron, friend, campaign finance director, and asbestos-litigator extraordinaire Fred Baron, Silicon Valley litigator William Lerach (see also this), and the mysterious Stephen Bing.

He also has close ties to the law firms Girardi and Keese and Chitwood and Harley. And that’s just the tip of the special interest iceberg.

Other tidbits from the EdwardsWatch site include the discount air travel Edwards gets from his trial lawyer friends and the money he’s gotten from every state trial lawyers association in the country. Has there ever been a candidate so beholden to one special interest?

More: See also details at Rantburg and Edwards’ PAC donors from OpenSecrets.org.

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Market Influence

There may be good news on the horizon for physicians in John Edwards’ home state. No, the state didn’t pass sweeping tort reform. It’s market magic:

Unlike the last survey, business-related cases didn’t just lead the top of the list. In a dramatic change from past years, they made up more than a quarter of all the entries for 2003, with 14. That’s more than double the number of business recoveries reported to Lawyers Weekly in 2002 ? and matches the tallies in medical malpractice and auto negligence.

Another telling statistic: In 2003, six business-related cases resulted in recoveries of $7 million or more, according to the survey. There were only three reported in that range in 2002 ? and only one in 2001. In contrast, no contested personal injury recoveries reached $7 million in 2003.

Why is that good news for physicians and what does it have to do with the free market? It means that lawyers will be expending their energies on business cases instead of malpractice cases. This may not be good for the economy of North Carolina, but it would give doctor’s and hospitals a reprieve. As one lucky winner, I mean attorney, puts it:

“In my view, in terms of making a living, business misconduct cases in today’s environment are becoming almost as profitable as personal injury, where you traditionally have had more high-end verdicts and settlements,” said Hunt.

And I thought they were in this to champion the little guy.

Click here to see a list of the top 55 verdicts for 2003 in North Carolina, none of which were under one million dollars.

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