It’s time to call out medical malpractice for what it really is. Dick Durbin’s own words define what is behind medical malpractice. “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 became a lawyer in 1969. He was first elected to Congress in 1982. Therefore, he was a medical malpractice attorney for thirteen years. At first, he was a defense counsel, earning a living being retained by malpractice insurance companies to represent doctors in malpractice claims, 70 percent of which were frivolous. Later, he was a plaintiff counsel, earning a living from malpractice insurance companies by representing those with nothing more than a suspicion of fault in claims against doctors, 70 percent of which were frivolous. Dick Durbin’s background as a medical malpractice attorney heavily shaped his identity as a staunch opponent of tort reforms and a vocal advocate for expanding patient rights in federal health care legislation.
He will retire this coming November. Until then, he is the Senate Democratic whip and chairman of the Senate Judiciary Committee. Over the forty-four years since he was elected, he earned millions of dollars. He is a fitting symbol for why we need to solve medical malpractice as a problem.
There are 137 representatives who are lawyers out of 435 in the House of Representatives. Forty-seven of 100 senators are lawyers. Of the total of 184 lawyers, 110 are Democrats. How many of those 184 lawyers were also malpractice attorneys before they were elected? How many have a bias about medical malpractice litigation? How much in political contributions do they get from the medical liability litigation industry? Regardless of the answers to these questions, lawyers are in charge.
Real physician voices, twice a week
Free, and one click to unsubscribe.
The influence that the medical liability litigation industry exerts on lawyers in Congress is best exemplified in 2017 with HR 1215. All the long knives were out. This bill did nothing more than what was already adopted by many states: setting a $250,000 cap on noneconomic damages in medical malpractice lawsuits. Although passed in the House, HR 1215 died in the Senate and was never brought to the floor. Dick Durbin was a leading voice against it.
Nevertheless, this bill recognized that frivolous lawsuits were a problem. According to the Congressional Budget Office, if passed, at the very least, the cost of defensive medicine would decrease by $10 billion per year. However, to Dick Durbin and others like him, this reduction of defensive medicine mattered less than the specter of limiting patients, who have nothing more than just a suspicion of fault, from suing a doctor. For them, the only thing that mattered was the ability to sue a doctor. Ironically, this bill would not have interfered in suing a doctor.
According to lawyers, Dick Durbin included, when negligent doctors are loose upon the land, they must be held accountable lest good people are harmed. How about when sanctimonious lawyers are loose upon the land? Their self-righteousness is less about protecting good people than it is about protecting their own interests. In the end, there is only ambition, power, and greed.
That brings me to the American Bar Association’s code of professional ethics, Model Rules of Professional Conduct. Every lawyer is obligated to these rules. The problem is not in the rules; it is in the preamble to the rules. According to the preamble, a technical violation of a rule is not, necessarily, a wrongdoing or a breach of duty. It depends on circumstances. A violation of a rule depends on circumstances, on “what the meaning of the word ‘is’ is.”
Under what circumstance is a violation of a rule not cheating and when is cheating not a wrongdoing or a breach of duty? If serving justice is as arbitrary as circumstances, then “political correctness” becomes more important than the rules. If governance relies on lawyers for whom a violation of a rule depends on circumstances, what happens when a frivolous medical malpractice lawsuit is represented?
Today, a day does not pass without learning of another problem which suggests a failure of governance. A day, also, does not pass without another frivolous lawsuit being filed.
Today, attorneys file frivolous lawsuits with impunity because they know they will never be held accountable. Their code of ethics protects them by excusing the circumstances in which they act. Now, I hope, the rest of the iceberg has emerged. One must wonder, if we undo the mass hysteria behind medical malpractice, what other mass hysteria might we be undoing?
This is how it works in China: Those in charge 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. Just put on your mask; shut up or die in prison.”
Regarding medical malpractice litigation, if it is the oldest story ever told, “a tale told by an idiot, full of sound and fury and signifying nothing,” we can change it. We must change it or, at least, expose it.
Howard Smith is an obstetrics-gynecology physician.
