The Association of Trial Lawyers of America recently changed its name to the American Association for Justice. It may be a smart PR move, because everyone likes the word “justice,” and apparently the name “trial lawyers” has acquired a negative tinge. It’s good that it has, because although trial lawyers say they “protect the little guy,” that’s a myth. In truth, for every little guy they help, they hurt thousands.
When those big medical malpractice awards hit the headlines, it sounds like the little guy was helped. “$1 million awarded to victim of medical device!” But the headline leaves out a great deal. First, the suit cost everyone involved—and that includes you—much more than $1million. In addition to the million-dollar settlement, there were the court costs and legal fees charged by the defense lawyers—many defense lawyers, considering the plaintiff probably sued not just the maker of the medical equipment, but the surgeon, an internist, some nurses, the hospital, and God knows how many others. Lawsuits routinely name as many as a dozen people, because to not include someone who is later revealed to be at fault may expose the lawyer to a charge of legal malpractice.
For the lawyers and people like me, a lawsuit is just another part of our work, but for most people, it’s a life-wrecking experience. Nurses are terrified. Doctors can’t sleep. Their hard-earned reputations are trashed by newspapers quoting plaintiffs’ lawyers, who paint deceitful pictures of the doctors’ incompetence and negligence. The doctors are forced to hire defense lawyers who eat up their time, energy and entire life savings. Patients suffer while their physicians spend several hours a week with attorneys, preparing for and giving depositions. The suit drags on for years.
Soon doctors begin practicing hyper-defensive medicine, ordering expensive and largely unnecessary tests to avoid lawsuits. Some of the tests are painful for the patients. Today, 51 percent of doctors recommend invasive procedures like biopsies more often than they believe are medically necessary.
Doctors become more secretive, talk less openly with patients and become averse to acknowledging any mistake. Insurance premiums rise, and both doctors and hospitals pass the cost on to patients. Newly fearful, the medical device manufacturer decides to stick to proven technologies, dropping its plan to pursue a new line of tools that would make surgery less painful and less risky. I could go on, but you get the idea.
Lawyers, of course, get a big percentage of any award, but to cover what the lawyers take, the price tags of all consumer goods are a little higher. Life-saving products are especially penalized by the “lawyer tax.” A manufacturer who produces pacemakers says lawsuits add thousands of dollars to the cost of every pacemaker. Lawsuits punish hundreds, if not thousands, of innocent people.
Critics of lawsuit abuse tend to focus only on the cost of litigation. The cost is nasty. But the higher cost is just the start of the nasty side effects. What’s worse is that fear of lawsuits now deprives us of things that make our lives better.
Sure, fear of the “invisible fist” makes manufacturers more careful. Some lives have been saved because the litigation threat got companies to make their products safer. That’s the “seen” benefit.
But that benefit comes with a bigger unseen cost: The fear that stops the bad things stops good things, too—new vaccines, new drugs, new medical devices. Fear suffocates the innovation that, over the past century, has helped extend our life spans by almost 30 years. Every day, we lose good things.
We can’t even begin to imagine the life-saving products that might have existed—if innovators didn’t live in a climate of fear. That’ll be the subject of next week’s column.
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