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The Lawsuit LotteryWould you become a quadriplegic for $20 million?

By Michael Kinsley
Posted Thursday, July 10, 2003, at 4:31 PM ET

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.

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Michael Kinsley is a columnist for Time and the founding editor of Slate.
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Remarks from the Fray:

…Society has a problem differentiating between malice, negligence, simple incompetence, and bad luck. Malice deserves to be punished. Negligence implies an awareness of potential harm and no move to do the good thing of stopping it. Incompetence isn't a crime unless the person is aware that this poses a threat to the person. Bad luck happens all the time. Any lawsuit based on 'bad luck' is absolutely frivolous! Why? Because there is nobody to punish. Does it matter that the injuries weren't worth 20 million? No. Paying someone an 'entitlement' due to their own 'bad luck' is immoral no matter who else was involved and how much the payment is. When we consider people getting 'paid' for their injuries and the same injuries get vastly different rewards, we should consider that this is quite just! The payments are not for the injuries, after all, but for the malice or negligence of the person who inflicted them. But society has forgotten this, perhaps. Where else does this become obvious? When we consider people lucky or unlucky to be born one way or another. This does not entitle them to anything, unless maybe they want to sue their parents for having prepared insufficiently for their birth... and even that wouldn't be fair most of the time, when the parents did their best and were simply also unlucky. Society owes them ... nothing. People may give out of generosity and a loving spirit, but they are not obligated to. There are no rights that pertain here. Until this gets reaffirmed, injustice will continue to mount in society.

--BenK

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Leaving aside the state's rights' argument (and it's an interesting one; now Republicans want to "nationalize" negligence law), it's difficult to see how damage caps do anything but make it easier for businesses and insurance companies to estimate in advance the cost of their misconduct. These estimates, once reached, will simply be passed on to the consumer in the form of higher prices for consumer goods, and higher insurance premiums for policies. In turn, this will simply lead to more oligopolies and monopolies. The irony of this, of course, is that these laws are allegedly designed to aid the consumer, by making consumer products and professional (i.e., medical) services more available and affordable. By removing the incentive for good corporate behavior that comes from not knowing in advance the size of one's punishment for making a potentially serious error, "tort reform" will end up doing exactly the opposite of what it promises. We wouldn't need artificial "caps" on damages if peer reviews and so-called "progressive" politicians forced professionals and businesses to live up to their civic, moral and even human responsibilities, instead of treating them like gods … "Tort reform" is one more perverse example of what passes in society for "innovation" when reason sleeps and good people decide to do nothing. Full disclosure: I am an attorney, who represents plaintiffs in personal injury cases. But I am hardly a rich man, and that is in no small part because the system as constructed is already front-loaded in favor of defendants, especially corporate defendants. Moreover, to the extent that I and my colleagues make money at this kind of work, it enables us to take on cases with little or no prospects of reward, except the pursuit of justice…

--Srrurhino

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…We've had MICRA in California since the '70's, coincidentally capping malpractice payments at $250,000. Now it does strike me as odd that the value is still the same, twenty years later. It seems $250,000 was equivalent to a lot more pain and suffering in the seventies than it is today. But nevertheless, it's not a half-bad system. The free market system is based upon risk-assessment. And malpractice risk, both for doctors and insurers is presently quite opaque. Without clear notions of how malpractice is to be defined and without clear notions of how much it is going to cost, doctors are forced to pay outrageous premiums as insurance against potentially outrageous settlements. If the risks were more transparent, the market could better adapt to compensating for them. If there's one thing California DOESN'T have a problem with anymore, it's malpractice insurance (now Workers' Compensation Insurance... that's another matter altogether). Personally, I would suggest a cap on pain and suffering damages, but a guarantee that in addition to that sum (and not charged against it), all future health care costs borne as a consequence of medical malpractice will be covered (at least until such a time as health care becomes a universal right). Presumably Social Security would cover for the cost of disability.

--Geoff

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Two things Kinsley says today made me go "hmmm": "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 the doctor he sued did nothing in particular wrong." The lawsuit isn't frivolous if the doctor did nothing wrong?! I agree that the situation does not look at all frivolous, regardless of the doctor's culpability, but if there was no medical error then the *lawsuit* looks awfully frivolous to me. Second --"Lemann also pointed out the flaw in this kind of justice [economic justice by lawsuit]: It is transactional, based on particular episodes, rather than on fate in general... If you've been screwed by life itself, there is no one to sue." Kinsley says this in the context of specifying distinguishing features of justice-by-lawsuit. Does he really mean to imply that old-fashioned legislation is a cure for people who are screwed by life itself?

--Ananda

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(7/11)

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