How often do you find yourself saying, “Thank God for the lawyers.” Pretty rarely. Likely never. Lawyers know that you hate them. That’s fine. Literally half of the people who hire a lawyer lose their case, so it’s natural that there are a lot of sore losers out there. That being said, there are a lot of situations where the lawyers help you out. Take the entire civil rights movement, for example. Or, lawsuits against employers who refuse to pay their employees their contractual wages (overtime, missed paychecks, etc.). Like it or not, you need civil litigators to fight against people and corporations that are more powerful than you.
Enter the healthcare industry. Few areas have more regulation and bitter partisanship than healthcare. Nobody wants to pay for services that everyone wants. We can’t decide if we want a single payer system funded by tax dollars, a private solution that provides the highest quality healthcare to those who can afford it, or what a compromise of the systems would look like. That being said, one thing we can all agree on is that we don’t want doctors to screw up when they’re treating us.
Healthcare costs are high. Part of the reason is due to so-called “defensive medicine” costs. Some sources estimate that healthcare facilities would save as much as $31 billion over 10 years if we eliminated medical malpractice cases. The proposed alternative would be to eliminate the patient’s right to a trial against the healthcare provider and to have the problem resolved by an independent arbitrator like they use for workers compensation cases. Sounds great. Everybody wins.
Or maybe we open up another litany of problems. It’s easy to blame trial lawyers for all of the lawsuits against healthcare providers. The logic here is that if we got rid of the lawyers then we’d get rid of the lawsuits. That may be partially true, but what gets rid of the underlying reason for the lawsuit? Does taking away the patient’s right to trial prevent doctors from committing malpractice? If we lose our right to hit hospitals with seven figure verdicts from time to time, does that encourage laziness and complacency on the part of the healthcare provider? Hospitals are corporations just like any other business. The only thing they listen to is dollars and cents. If you can’t hit them really hard in the wallet, then they’re less likely to care. If you take seven figure lawsuits off the table then your healthcare providers start saying creepy corporate jargon like, “acceptable error rates” when talking about performing open heart surgery.
Everyone hates lawyers for a good reason: we get results. You wouldn’t hire a lawyer unless we brought home a lot of money for you. If you want anything done in the corporate world you have to hire someone who can hit a corporation in the pocket book. Protests, marches, and kind words do nothing to change dangerous corporate practices. Moreover, the threat of lawsuit forces healthcare providers to act more responsibly than they otherwise would. If you didn’t have lawyers, then you’d have to invent them.
The worst part of proposals that seek to strip people of their right to sue bad actors, such as shoddy physicians, is that it stomps all over our right to trial as secured by the Seventh Amendment. It’s easy to erode the rights given to us in the Constitution because we feel like we’ll never really need them. Why should you care about suing hospitals if you never get sick? Why should you care about unreasonable search and seizure if you never commit a crime? Why should you care about the right to bear arms if you don’t own a gun? The logic is laziness is slippery and dangerous to a society.
But what about frivolous lawsuits? Shouldn’t there be some mechanism for kicking frivolous lawsuits out of court? Yes, it’s built into the the Code. Don’t ever forget that judges kick out legitimately frivolous lawsuits from courts and punish idiot lawyers for wasting the court’s valuable time. Also, don’t forget that defense attorneys always, and I mean ALWAYS, argue that the plaintiff’s lawsuit is frivolous. Even if the hospital hired a circus clown to perform open heart surgery on your grandfather, the hospital will argue that the plaintiff’s lawsuit is frivolous. Keeping this in mind paints a far scarier picture of reality than hospitals would like you to believe.
Maybe healthcare providers screw up all the time and the reason we have so many expensive lawsuits is because the system itself produces an unacceptably high number of errors.