The Lawsuit Lottery

Would you become a quadriplegic for $20 million?

The American Medical Association propaganda for medical malpractice reform is almost enough to turn you against it. Senate Democrats killed a reform bill on Wednesday, giving Republicans an issue in next year’s election. The core of the bill was a $250,000 limit on how much injured patients can collect for pain and suffering. The AMA describes this as “enabling patients to receive up to $250,000” for pain and suffering. According to the AMA, the leading purpose of the bill was “ensuring patients receive 100 percent compensation for their economic losses.” This is a non-problem of particular lack of concern to the AMA, whose entire interest in this issue is reducing malpractice payments. The AMA refers to the bill as the “Patients First Act of 2003,” an Orwellian conceit that could equally well be used by the other side of the debate, the trial lawyers.

The malpractice debate is a war of anecdotes. Both sides want you to feel that life could go awry at any moment. Reading the contradictory literature simultaneously leaves you with a why-get-out-of-bed feeling that if it’s not one thing, it’s another. If you are hit by a car on a country road and rushed to the hospital with a head injury, you will probably die because the high cost of malpractice insurance has driven every brain surgeon in the region to retire to the golf course. And if there happens to be a doctor who is still in business, he will probably be so incompetent that he absent-mindedly implants a golf ball in your left frontal lobe. We are all imperiled, but especially at risk are cute little girls, who, judging from the anecdotes, are victims of both medical malpractice and medical malpractice insurance way out of proportion to their share of the population.

One subject you don’t see many anecdotes about is so-called “frivolous lawsuits,” although this is a major theme of malpractice reform crusaders. There’s a reason: Even unworthy lawsuits usually don’t look frivolous up close. A quadriplegic who wins $20 million in what critics call the “lawsuit lottery” is still a quadriplegic. He is still a quadriplegic even if others in the same situation get little or nothing. He is still a quadriplegic even if the doctor he sued did nothing in particular wrong. If you had the choice in advance, would you agree to become a quadriplegic for $20 million? Suffer severe pain in your right leg for the rest of your life for $350,000? Very few winners of what the critics call the “lawsuit lottery” actually win enough to make it a deal they would take voluntarily.

So, the direct effect of restricting the size of malpractice judgments would be to increase injustice, not to reduce it. Nevertheless, limits on malpractice lawsuits are a good idea that Democrats are wrong—and possibly foolish—to oppose. The current arrangement delivers justice at random, in widely varying amounts or not at all, depending on whether you’re feeling litigious, how good your lawyer is, or what a judge or a juror had for breakfast that day. It is less a matter of injustice than of more justice than we can afford, scattered somewhat at random.

What is wrong with a $250,000 cap on payments for pain and suffering? Why should one person get $5 million, another $500,000, and yet another nothing at all for essentially the same injury? The fact that $250,000 can’t begin to compensate for the pain and suffering a patient may have endured can demonstrate that $250,000 isn’t enough money, or it can demonstrate that money’s ability to compensate for non-monetary losses is inherently limited.

One of the major Democratic presidential contenders, Sen. John Edwards, made a fortune as a trial lawyer. In a profile of Edwards last year, Nicholas Lemann of The New Yorker suggested that economic-justice-by-lawsuit might be a replacement for the economic-justice-by-legislation that the Democrats no longer have the power or inclination to fight for. Lemann also pointed out the flaw in this kind of justice: It is transactional, based on particular episodes, rather than on fate in general. If you’ve been screwed out of $1,000 by a credit-card company, or screwed out of the use of your elbow by an incompetent doctor, litigation can help you. If you’ve been screwed by life itself, there is no one to sue.

Edwards was perceived as the Democratic frontrunner a few months ago, but his campaign seems to be going nowhere. And the Republicans forced a vote on malpractice reform this week, even though they knew they’d lose, because they wanted to force every Democratic senator to take a stand. (All the Democrats opposed the reform.) So, it looks as if justice-by-litigation, like justice-by-legislation, has become a better issue for the Republicans than the Democrats. In both areas, Republicans seem to have found the sweet spot between “no” and “yes” where “yes and no” can seem like a philosophical advance rather than a contradiction in terms.

It is a society with an odd sense of justice that awards millions of dollars to every 25th victim of what may or may not have been a botched operation, but doesn’t guarantee basic health care to anyone. But it is a political party with an odd sense of justice that makes a big issue of the former and basically ignores the latter. Republicans are right about malpractice reform. They may not realize quite how right they are.