November 17, 2006

Make the health care system safe for doctors to practice

For those of you who don’t know, John Edwards, 2004 vice presidential nominee and presidential candidate, can talk to babies—while they are still in their mothers’ wombs. While arguing for damages against a doctor who did not perform a C-section on a child who turned out to have cerebral palsy, Edwards seemed to be projecting little Jennifer Campbell: “She said at 3 [o’clock], ‘I’m fine.’ She said at 4, ‘I’m having a little trouble, but I’m doing OK.’ At 5, she said, ‘I’m having problems.’ At 5:30, she said, ‘I need out.’ She speaks to you through me, and I have to tell you, right now—I didn’t plan to talk about this—right now, I feel her. I feel her presence. She’s inside me, and she’s talking to you.”

Whether John Edwards is an honest, down-to-earth man who really believes he can project the thoughts of an unborn child, or simply a shyster lawyer looking to make an extra buck, only he knows. Nevertheless, John Edwards and trial lawyers like him are sucking the blood from America’s health care system. Edwards specifically has made much of his fortune suing doctors for not performing C-sections, arguing that they help prevent cerebral palsy in children. In 1970, six percent of all births were C-sections; in 2003, that number had climbed all the way up to 28 percent. However, as John Stossel reports, there had not been a decrease in prevalence of cerebral palsy during that time. Hence, although Edwards’ lawsuits have not, apparently, prevented anycases of cerebral palsy, they have, at least in part, yielded a great increase in the occurrence of C-sections. Now doctors do C-sections “just to be safe,” meaning safe from lawsuits, though the procedure is not so safe for mothers. While C-sections are not overly dangerous, women are four times more likely to die during a C-section than during vaginal birth; this is not an insignificant risk.

Any discussion of health care reform must also include a discussion on lawsuit reform. All Americans—not just doctors and health care providers—are paying trial lawyers’ salaries. Not only do doctors pay exorbitant costs for malpractice insurance—costs that are passed down to consumers—but they also are forced to cover themselves by ordering unnecessary and costly tests, just like they perform superfluous C-sections.

I don’t want to portray all medical malpractice lawyers as selfish and greedy; I don’t doubt that many—including, possibly, our friend Senator Edwards—earnestly believe that they are fighting for the aggrieved and victimized. In fact, some plaintiffs in malpractice cases really are aggrieved and victimized, and they deserve their days in court. Nevertheless, these lawsuits as a whole hurt America by lowering the quality, yet raising the cost of health care. There is no perfect solution to this anathema—someone will be negatively affected no matter what. Nevertheless, the goal of public policy should be to create the greatest net positive result. I would submit that in order to curb the number of frivolous lawsuits, plaintiffs should pay the defense cost of their opponents if the jury finds against them. This idea of “loser pays” is hardly an original one—many other countries already use it—but it is a good one. Undoubtedly, this policy would be unfair to some who file legitimate, reasonable lawsuits that are nevertheless rejected by juries, but the positive benefit of fewer frivolous lawsuits would far outweigh this disadvantage.

An America where “losers pay” would be one where doctors don’t have to constantly look over their shoulders for fear of being sued, where they don’t have to order gratuitous tests just to cover their rears, where the cost of health care would decrease while its efficiency would increase. It might even be an America where doctors and lawyers never even have to talk to each other.