NEW YORK—"Take two depositions and call me in the morning."
If doctors could prescribe litigation to improve human health, every American would resemble an Olympian and reach age 110. Of course, the opposite is true. As the free-market Manhattan Institute discovered, the barrage of lawsuits battering the medical and pharmaceutical industries is incredibly expensive. Even worse, it shackles doctors, spooks researchers, and leaves patients sick or dead.
Since 2003, the Manhattan Institute (which I am advising on a book project) has examined what it calls "Trial Lawyers, Inc." (triallawyersinc.com). Twice the size of Coca-Cola, the $40 billion litigation industry is a hulking Goliath, not the plucky David it fancies itself.
To gauge its impact, consider the 406 percent increase in per-doctor malpractice insurance premiums between 1975 and 2003. Simultaneously, medical-care inflation grew 525 percent, while Trial Lawyers, Inc. turbocharged medical-malpractice expenses 2,108 percent, to $26.5 billion.
Insurers shield themselves from massive payouts by charging doctors more for malpractice coverage. Average policies rose 18 percent in 2003 alone. That year, Chicago-area obstetricians watched their premiums zoom 67 percent to $230,428.
Doctors, in turn, practice "defensive medicine" — using extra tests and referrals to prevent negligence claims. Thus, 74 percent of doctors unnecessarily send patients to specialists. Conversely, a Harris poll found that 43 percent of doctors do not prescribe drugs embroiled in litigation for fear of getting sucked into lawsuits.
Litigants seem blithely unaware of underlying economic reality. Covetous plaintiffs in one vaccine lawsuit sought $30 billion in damages while the entire vaccine industry’s annual revenues totaled $6 billion.
All of this has helped hike health insurance annually by 10.9 to 13.9 percent between 2001 and 2005. Family coverage has risen 59 percent since 2000.
Unfortunately, Trail Lawyers, Inc.’s damage has metastasized from our wallets to our well-being. Litigation’s clinical side effects are widespread and worsening.
*Trial Lawyers, Inc. kicks the poor and minorities in the teeth. Thanks to liability-insurance costs, Methodist Hospital in low-income South Philadelphia stopped delivering babies in 2002. Facing a $2 million malpractice premium, Manhattan’s Elizabeth Seton Childbearing Center closed in 2003 — bad news for the 30 percent of its patients on Medicaid.
*Among Palm Beach County, Florida’s 13 hospitals, five have no emergency-room neurologists. Some seizure patients and accident victims have had to travel more than 100 miles to Gainesville and Tampa for treatment. Barbara Masterson, 53, suffered a stroke in 2004. Lawsuit-weary local neurologists refused to see her. While hospital personnel scrambled for a neurosurgeon, Masterson died.
*Less than a year after GlaxoSmithKline introduced LYMErix in 1999, lawyers attacked, claiming this adult Lyme-disease vaccine caused arthritis. By 2002, Glaxo withdrew LYMErix. Previously-stable Lyme-disease infections suddenly soared 40 percent.
*A quarter of pregnant women once used Bendectin for morning sickness. A lawyer-fueled frenzy over alleged birth defects prompted some Bendectin users to abort their fetuses. Facing 2,000 suits, $18 million in claims, and $20 million in sales, Merrell Dow Pharmaceuticals yanked Bendectin from U.S. pharmacies in 1983. No evidence ever has linked defects to Bendectin, which still sells abroad. Meanwhile, U.S. birth defects are flat, while morning-sickness hospitalizations have doubled.
So, is there any cure for "litigitis"?
*Since Texas capped non-economic damages at $250,000 in 2003, malpractice suits have been halved, and five insurers have cut total annual premiums by $50 million.
*Common Good — a Gotham-based non-profit launched by Philip K. Howard, author of The Death of Common Sense — advocates medical courts in which specialized judges, often in non-jury trials, could evaluate scientific evidence, which sometimes baffles jurors.
A Texas jury, for instance, blamed Vioxx for one user’s fatal heart attack, then invoiced Merck $253 million. Merck’s scientific defense seemed to flummox jurors.
"Whenever Merck was up there, it was like wah, wah, wah," said juror John Ostrom in last August 22’s Wall Street Journal, parroting Charlie Brown’s teacher. "We didn’t know what the heck they were talking about."
Medical courts also would counteract some jurors’ anti-defendant bias. Left-wing litigator Ron Kuby alluded to this when he said, "The Bronx civil jury is the greatest tool of wealth redistribution since the Red Army."
Such reforms are needed — Stat! Without them, Trial Lawyers, Inc. will aggravate the splitting headache that is American medicine — far beyond the reach of aspirin.