Senator Dick Durbin describes his career this way: “Before I was elected to Congress, I worked in a courtroom. For years, I defended doctors and hospitals, and for years, I sued them on behalf of people who were victims of medical malpractice.”
Dick Durbin’s own words betray that, first, he was defense counsel, earning a living being retained by malpractice insurance companies. Second, he was plaintiff counsel, earning a living by winning settlements and judgments from those same malpractice insurance companies. Now, he is a U.S. senator who receives political contributions from medical malpractice insurance companies and from both the plaintiff and defense bars.
How many of those 175 lawyers in Congress were also malpractice attorneys at one time in their careers?
The influence that the medical liability litigation industry exerts on lawyers in Congress was best seen in 2017 with the defeat of HR 1215. HR 1215 recognized that it was frivolous medical malpractice lawsuits, not all medical malpractice lawsuits, that were problematic. According to the Congressional Budget Office, HR 1215 would decrease the cost of defensive medicine by $10 billion per year. However, for Dick Durbin and other members of Congress, this reduction mattered less than the ability to sue a doctor, which was basically unaffected by HR 1215.
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According to politicians, Dick Durbin included, when negligent doctors are loose upon society, they must be held accountable lest good people be harmed. How about when overzealous lawyers are loose upon society? Their self-righteousness is less about protecting good people than about protecting self-interest.
Today, our country is beset by so many problems that medical malpractice pales by comparison. However, by connecting the dots, a disturbing picture emerges, and medical malpractice is just the tip of an iceberg.
There is something catastrophically wrong when systems fail. Think in terms of the Moneyball test. If government is supposed to govern good, why doesn’t it govern good? Governance fails when government fails. This is only possible when decision-makers, regardless of the capacity in which they serve, are unethical, or incompetent, or both, and only see it their way. If one out of every three members of Congress is a lawyer, this does not bode well for our future.
Lawyers make their own rules. Consider the Rules of Professional Conduct. There are at least fifty-eight rules. They cover virtually every capacity in which an attorney can possibly serve. A false statement, such as the one a lawyer makes when a frivolous lawsuit is filed, is forbidden. Therefore, if the rules were followed, the 70 percent of malpractice lawsuits that are frivolous would not be represented.
The problem is not in the rules; the problem is in the preamble to the rules. A preamble states what the rules mean.
According to the Rules of Professional Conduct, a lawyer is a public citizen and the rules are their professional standards. The rules are standards, but, according to paragraph 9 in the preamble, a violation of a rule is not necessarily a wrongdoing. It depends on circumstances. Any ethical and competent person knows that rules are not nullified by circumstances. To believe otherwise makes self-governance a joke. Rules are concrete. However, according to the preamble, “It all depends on what the meaning of the word ‘is’ is.” Under what circumstance is a violation of a rule not cheating, and in what context is cheating not a wrongdoing?
Elected lawyers make the rules for us. However, we are protected by the Constitution. Its Preamble states the purposes the Constitution is meant to serve. The right thing trumps circumstances. This is why we fought a Civil War, and there is no slavery in the United States. Last I checked, the Preamble of the Constitution has not changed since it was adopted almost 250 years ago. Yet, despite the 2017 attempt to reduce the risk of frivolous lawsuits, there are still frivolous lawsuits. How does this “form a more perfect Union”?
Today, a day does not pass without another frivolous lawsuit filed by a plaintiff attorney. Their code of ethics protects them through the circumstances in which they accept representation. This, too, will change.
Now, I hope, I have made the point about the tip of the iceberg clear. First, it is medical malpractice; then cancel culture; then open borders; then law and order; then socialized medicine. Finally, it is the collapse of the social order, replaced by utopianism. Lawyers know best. First, they change their rules to suit them; next, they change our rules to suit them. One could almost hear them say, “It’s not so bad; just a few more rules.” However, like slavery, ultimately, it is not up to them. It is up to us. The sooner we realize this, the better.
Howard Smith is an obstetrics-gynecology physician.
