Even plaintiffs who get to court often come away empty-handed. Nationally, defendants prevail in nearly 80 percent of the medical malpractice cases that go to trial. Many malpractice suits, legal analysts say, are filed by personal-injury lawyers, accustomed to handling simpler cases like those involving auto accidents, but not as experienced in medical negligence work. In a 2002 survey by the trial lawyers association, only 11 percent of its 60,000 members said medical malpractice was their primary area of practice; 40 percent replied that medical negligence cases were some part of their practice.
Mr. Smith says his success rate is higher than 80 percent - including jury verdicts and settlements - far higher than the national average for medical malpractice plaintiffs' lawyers. Being picky in his selection of cases helps explain the high winning percentage. He says he decides to take fewer than 3 in 100 cases that are brought to his firm. "We say to people right off that a bad outcome does not mean you have a medical negligence case," he said.
It is hard to argue with the statement that the system needs fixing, but that depends on what part of the system one defines as broken. Is it health insurance costs? Is it the number of uninsured Americans? Is it Medicaid? All this is about is keeping dollars in the pockets of the insurance industry.
Medical liability policy, said Dr. William M. Sage, a physician and a law professor at Columbia University, should seek three goals: restraining overall costs, compensating the victims of medical mistakes and providing incentives for doctors and hospitals to reduce medical errors.
"There is a strong consensus among people who have really studied the issue that caps on damages would tend to keep costs down and make liability insurance more affordable for doctors," Dr. Sage said. "And there is a universal consensus that caps would do absolutely nothing to reduce medical errors or to compensate injured patients. If anything, caps on damages would make those problems worse."
But what about places that have already passed the types of reforms envisioned by the Republicans? Several states, including California have long ago passed such laws.
Medical malpractice laws vary state by state. But California offers a glimpse of a future preferred by the administration and many Republicans in Congress. In 1975, California passed the Medical Injury Compensation Reform Act, which included a cap of $250,000 for damages like pain and suffering in malpractice cases. It did not limit economic damages for things like the cost of continuing care for a person disabled or wages lost because of medical errors. The law also curbed attorneys' fees on a sliding scale that prohibited them from collecting more than 15 percent on award amounts over $600,000, with higher percentages for the amounts below that sum. (In states without limits on fees, contingency payments to malpractice lawyers are typically about one-third of awards.)
Research varies on the likely impact of curbs on awards and fees, but a RAND Corporation study last year concluded that the California law had reduced the net recoveries for plaintiffs by 15 percent and had cut attorneys' fees by far more, an estimated 60 percent. Defendant liabilities, it calculated, were trimmed 30 percent because of the law.
California malpractice lawyers say the law also discourages them from taking wrongful-death cases if the victims are children or retirees. Those groups have no economic value by the cold logic of the courtroom because they are not earning salaries, so the maximum award would be $250,000. Complex cases, which often require many expert witnesses and years of research, can cost that much to bring to trial.
Linda Fermoyle Rice, a medical malpractice lawyer in Woodland Hills, Calif., said she recently told the family of a 14-year-old boy who died unexpectedly in a hospital - apparently from medical negligence, Ms. Rice said - that she could not afford to pursue the case. "The law has made it impossible for many victims to get access to the court," she said.
By limiting the dollars that can be awarded for non-economic (i.e. pain and suffering/loss of enjoymnet of life) damages, you are effectively eliminating huge segments of the population from obtaining fair compensation for their injuries. Young people and babies don't have an earning history that can form the basis of a calculation for a lost income stream. What about a 68 year old retiree who won't lose a moment of pension over, say, a perforated colon and infection (and throw in an ostomy bag), should her ability to obtain fair compensation be arbitratrily limited becasue she has no lost wages?
On a final note, the Repugnicans like to talk about all the money spent by trial lawyers and their lobbying efforts but the reality is that big business has the trial lawyers outspent by an order of magnitude.
The champions of tort reform are spending heavily. Last year, the Institute for Legal Reform, an affiliate of the Chamber of Commerce, and the American Medical Association, the physicians' advocacy group, spent a total of $33.8 million on lobbying, according to PoliticalMoneyLine, which tracks federal lobbying. The trial lawyers' association spent $2.9 million on federal lobbying, PoliticalMoneyLine reported.
Bush's transparent democracy in action.