Sunday, March 25, 2007

It can happen to everyone eventually

(Ozier Muhammad/The New York Times)

In the aftermath of the Edwards' announcement that Elizabeth's cancer had returned, the reaction has been exactly as I anticipated. From the Left, naturally, sympathy and encouragement. From the Right, well, see my previous post.

But some have decided to dislike Edwards because he's an "ambulance chaser". Perhaps a justified antipathy to lawyers, perhaps based on some experience, I don't know.

It's been said that a liberal is a conservative who has undergone a tragedy. I prefer to believe that a conservative (today, anyway) is someone who has no sympathy or empathy for other humans. Imagine these stories were about your child, and try to remain a conservative:
  • 5-year-old girl was disemboweled, but survived, after being caught and suctioned by wading pool's defective drain. Despite 12 prior suits with similar claims, manufacturer continued to make and sell drain covers lacking warnings.
  • 850-lb. box delivered to attorney's home, fell on him breaking his back, causing paraplegia, and confinement to wheelchair.
  • Worker fractured both ankles, jaw, and skull after fall from 24-foot scaffold in defendant's plywood plant.
  • 14-year-old girl rendered quadriplegic from neck injury resulting from improperly supervised dive into shallow end of defendants' pool.
  • Application of abdominal pressure and delay in performing c-section caused brain damage to infant and resulted in child having cerebral palsy and spastic quadriplegia. Verdict set record for malpractice award.
  • Infant born with cerebral palsy after breech birth via vaginal delivery, rather than cesarean. Established North Carolina precedent of physician and hospital liability for failing to determine if patient understood risks of particular procedure.
  • Birth-related injuries including cerebral palsy and mental retardation allegedly caused by obstetrician's failure to diagnose fetal distress, including umbilical cord wrapped around baby's neck prior to delivery.
  • Doctor prescribed drug overdose of anti-alcoholism drug Antabuse, resulting in permanent brain and nerve damage.
For conservatives, the right to seek compensation for damages in civil court is not really important. Unless of course, the alleged damage has happened to you (See "sympathy and empathy" above). Thus, trial and medical malpractice attorneys are scum and should all be hanged.

But wait. Is Tort Reform really an issue?

Detractors seem to fault Edwards for two basic reasons. First, they fault him because he was a trial lawyer - and in particular, a medical malpractice plaintiffs' laywer - and is supported by trial lawyers. Second, they fault him because, as a lawyer in private practice, he brought medical malpractice cases - and some of them, they believe, were, in retrospect, meritless.

In the end, however, neither of these arguments is persuasive.

. . . Why are the premiums rising? The professionals cite large malpractice damages awards. But the correlation is complex. For example, medical malpractice awards rose in the early and mid-'90s, while medical malpractice premiums stayed flat -- and even fell.

Moreover, many factors -including, but not limited to, malpractice judgments - contribute to insurance pricing. We know this because there have been at least two previous cycles of steep increases in premiums in the recent past, once during the '70's and once during the '80's. The medical system survived these shocks. What we have learned in the aftermath of these crises is that the medical malpractice market is strongly affected by changes in the investment environment as well as errors in judgment about how to increase market share and the management of the reserves needed to pay out claims.

Bottom line is, knee-jerk attitudes toward lawyers are often pretty flawed. And trying to spin logic into supporting flawed theories is a fools game.

If something terrible, and avoidable, happens to your loved one, who do you want as an advocate: a free-trade capitalist politician, or an aggressive trial lawyer.

Pretty clear choice to me.