Fujah - America's Stories - Missouri Culture

The sun revolves around the earth, which is flat, and space is filled with ether; disease can be cured by blood letting, and there will be human mass starvation in the l970's and 80's because of the population bomb. If you had believed all these things you would have been the best and the brightest with the knowledgeable and “scientific” community firmly supporting you, until they weren’t.

And so it will be with global warming caused by human activity. The e-mail leaker, a modern day Joshua, has shaken Jericho to its foundation, by giving us a unique insight into the lengths the best and brightest scientists will fudge scientific data to support their theories, and the walls are tumbling down. Now what does global warming have to do with the “malpractice crisis”.

Well, as any good Republican/Conservative knows absolutely, positively, without a shadow of a doubt, doctors are being driven out of their practice by frivolous lawsuits where wacky juries give millions of dollars to undeserving Plaintiffs because unscrupulous trial lawyers prey on the emotions of these simple minded jurors. The “cost” of these verdicts has driven up the price of healthcare by billions of dollars, partly in “defensive medicine” or unnecessary tests by doctors, used not for patient care but to avoid future claims of “malpractice” which drives up their malpractice premiums so they can’t stay in business . . . and so on.

But is it true? Or are we being gullible and bamboozled. My law practice is Greene County, Missouri. It has a population of around 270,000 people with two major hospitals, and many doctors which serve a metropolitan area estimated to be close to half a million people. I don’t want to extrapolate too much from the common experience of this area. But, it is instructive and should give any person interested in “health care” reform and the medical malpractice crisis reasons to reflect on long-held beliefs. According to the civil circuit judge who handled most of the malpractice cases in this county from 1990 to 2008, 18 years, there have been, to his best memory, two (2), yes two, malpractice verdicts in favor of persons suing their doctor or hospital. The reasons- jurors like their doctors and don’t want to punish them when all they are trying to do is help an injured or ill person. Defense lawyers who defend doctors and hospitals insist on jury trials because their experience tells them that jurors are biased in their client’s favor. This trend is true in other areas. Jury service reporters show that there were only 5 malpractice verdicts in Kansas City, Missouri in 2008 and over the past three years a total of 12. This is in a metropolitan area of 2 million people. The number of paid malpractice claims has varied only fractionally since 1990-hardly a crisis.

And what about skyrocketing malpractice premiums Doctors must pay. There is no doubt that doctor’s insurance premium costs have gone up (as they have for other professions). But many doctors here do not have this expense. In Greene County, Missouri almost every doctor is affiliated with one of the two hospitals. These hospitals self insure themselves and the doctors affiliated with them. In other words, most doctors here are paying exactly zero for their malpractice coverage. Why does any of this matter?

First, conservatives should pursue the truth wherever it leads them. It should not disregard “inconvenient” facts just to harm the trial lawyers, even though their political organizations are run by a bunch of wingnut leftists. Second, the Republican party, and many putative “conservative Republican” members of Congress, are acting surprisingly un-conservative when it comes to tort reform. They will willingly abandon historic principles of conservatism in their war with the trial lawyers.

A couple of examples are illustrative. Republican Minority Leader John Boehner’s bill entitled “Enacting Real Medical Liability Reform” contains a provision that preempts almost all state malpractice law in favor of federal law. In other words, an historic area of state responsibility would be taken over by the federal government. As good conservatives, we know that the central threat to  liberty and freedom, economic or otherwise, is the continued accretion of power to the federal government. The “tea party” movement in many respects is based on the 10 amendment’s reservation o th f power to the states and the people. But here, the Republican members of Congress are federal power ear-markers run amuck.

The Republican malpractice bill also limits the amount of compensation that attorneys can charge their clients, even though the client agrees. Absent fraud or overreaching, what a client agrees to pay an attorney should be a totally private concern. In fact, the Republican’s have been at their very best in resisting the Obama administration’s efforts to limit compensation to bank executives. Representative Spencer Bachus of Alabama, the senior Republican on the Financial Services Committee recently opined: “Would our forefathers ever have considered giving the government a say on how much a private citizen earns, a so called say on pay . . .In reading the Constitution and the Federalist Papers, it clearly appears they would not.” Except when those nasty trial lawyers are involved and then the Constitution and Federalist Papers be damned.

And, if we can tell one profession how much to charge in purely private transactions, why not others. Why should Rush Limbaugh make a gazillion dollars a year if we, in all our federal wisdom, determine that such an extravagant amount is driving up the cost of radio advertizing and radio generally, which is a substantial burden on interstate commerce. We should limit his income to no more than _______ dollars (you’re the Congressman- you get to fill in the blank). Not exactly free market capitalism at its best. And, although the Republican malpractice bill supposedly targets “junk” and “frivolous” law suits, in fact, it does not say a word about un-meritorious litigation against doctors or hospitals. It does, however, cap the amount of money negligent doctors may be required to pay to patients they have injured. Now that idea may be good or bad, and there should be a vigorous debate concerning a public policy that provides special protections to certain members of society, while denying it to others. It may be that medical care is so critical to modern life that we should immunize health care practitioners from lawsuits. But it doesn’t have anything to do with junk lawsuits; and we certainly should not abandon our conservative principles for a simply political end.

Finally, the claim that doctors use “defensive medicine” to avoid malpractice liability should be viewed skeptically. If doctors are really engaged in a practice of providing their patients with unnecessary care, requiring them to pay unnecessary charges, solely to protect themselves from a possible future malpractice claim, they should consider working in a profession that does not pride itself on “never doing harm to anyone”.

If, as a lawyer, I charged a client for unnecessary law work, to prevent a possible future claim of legal malpractice, I would be subject to suspension and disbarment by the Missouri Bar Administration. Most doctors of my acquaintance are honest and direct and would not involve themselves in a scheme to defraud their patients to protect themselves. This leads me to believe that the claims of huge unnecessary medical costs caused by “defensive medicine”, which are largely anecdotal, will not bear close scrutiny.

But back to the beginning. Conservatives have always been extra- vigilant in rooting out false prophets and their falsehoods. Will conservatives bring that same skeptical eye used to such good purpose in the “global warming” debate to the issue of a medical malpractice crisis driving up healthcare costs. Don’t be gullible or bamboozled. Don’t abandon historic conservative principles of federalism and free market capitalism for cheap political points against the hapless trial lawyer lobby. A lawyer induced “medical malpractice” crisis simply does not exist in this area- my bet is that it doesn’t exist elsewhere or has been grossly exaggerated.

Thomas H. Hearne is an attorney in Springfield, Missouri.
His  major area of practice is insurance law.
He can be contacted at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it ".