September 22, 2009
Just a week or so ago I was watching the news and, of course, the topic was health care reform. All of a sudden, I realized one thing that needed to be fixed when it comes to health care. It wasn't anything the talking heads were talking about that convinced me. It was a commercial.
You've probably seen one like it. A malpractice attorney asks a question: Do you suffer symptoms like X, Y, or Z after taking this drug, or having surgery? Well, you may be entitled to compensation.
So right in the middle of a news segment on health care reform, we get an ad by trial lawyers trolling for plaintiffs. One of their preferred tactics is to name some popular drug and tell viewers that the drug has been linked to "serious side effects" and even death. And if your husband had a heart attack, maybe the doctors didn't respond properly. Or if you had a hip replacement, or you use too much denture cream—believe it or not—the list goes on and on.
The typical ad ends with a promise to "fight for your rights." All you've got to do is call the number on the screen.
In one news program, I've watched as many as five grating commercials by the same ambulance chaser.
The ads are so commonplace that you might be surprised to learn that before 1977, lawyers were prohibited from advertising in print or over the airwaves. The code of legal ethics that I had to sign as a lawyer prohibited this kind of behavior.
One reason why is because these ads "stir up litigation." But the Supreme Court overturned these prohibitions and began the process that has made prime-time television watching so infuriating.
But if that was all it did, the answer would be simple: turn off the set. Unfortunately, the ads do more harm than that. They convince viewers that they have been harmed and are "entitled" to compensation, even when that's not the case.
If you have taken the drug in question, you can't help but wonder if you have been injured in some way. It doesn't matter that your doctor and the drug company warned you about the side effects, which, in most FDA-approved drugs, are rare. What matters is that you are "entitled."
This advertising-fueled sense of entitlement, as predicted, stirs up litigation—litigation whose benefits overwhelmingly go to the trial lawyers and not the actual plaintiffs. Trial lawyers have become the new class of multi-millionaires in America.
But it isn't only drug companies and doctors who ended up paying. There's a less-obvious price being paid—and that's a defensive brand of medicine that drives up the cost of U.S. health care. One study estimated that "medical malpractice cost the U.S. economy $252 billion in 2007." That's 2 percent of the gross domestic product! Of that quarter-trillion, only an eighth went to "defending and paying medical malpractice claims." The rest went to the "excessive testing" and other defensive medicine used by doctors to "guard against malpractice claims."
To put it mildly, this is wasteful. But it's to be expected when you practice medicine under the "constant fear of trial lawyers seeking unbelievable and unwarranted cash awards."
Reasonable people can differ on how best to cut costs and reform health care—but I'm not going to take anybody seriously any more who presents a health care plan and ignores, as Congress does, this dreadful abuse. Let's cut $250 billion out of our costs and use that to help the poor, who really need it.