Monday, February 02, 2004
DON'T HATE THE PLAYER, HATE THE GAME......
When I saw the first round of recent posts on Sen. Edwards' career as a plaintiff's attorney for medical liability claims by Dr. Smith, Dr. Rangel, and DB, I thought, "Would Edwards have been able to pull this off in a state like Florida where they have a birth related neurological injury compensation fund?"
Well thanks to Dr. Smith and the The New York Times I know that he didn't want to find out:
An examination of Mr. Edwards's legal career also opens a window onto the world of personal injury litigation. In building his career, Mr. Edwards underbid other lawyers to win promising clients, sifted through several dozen expert witnesses to find one who would attest to his claims, and opposed state legislation that would have helped all families with brain-damaged children and not just those few who win big malpractice awards.......One approach would be to limit awards and create a fund to be shared by all families with similarly afflicted children.
This is not the first time Mr. Miller has championed the idea. In 1991, his legislation to create such a fund was defeated, in large part by the state's trial lawyers. Among those who spoke out against the bill was Mr. Edwards, who called it a baby tax.
One purpose of such a fund, as a former North Carolina State legislator states, is to provide compensation to those who cannot get a lawyer to take their case. Another is to provide a predictable method of compensation that cannot be achieved with a system relying on jury verdicts. Another program exists in Virginia. According to an evaluation of the Virginia program:
The legislature's Joint Legislative Audit and Review Commission (JLARC) evaluated the program in November 2002. It determined that the program overall was beneficial for ob/gyns and hospitals and that children in the program fared better than they would have under the tort system with a malpractice award cap.
As of October 2002, 75 children had been found eligible for benefits. JLARC found that their annual compensation exceeded the tort system's annual awards and expenses for severe birth injury cases, which it estimated at $ 10. 8 million. Program beneficiaries had received $ 25. 3 million since 1992 when the first distribution was made, an average of $ 62,000 per year per participant.
But certainly, Senator Edwards wasn't doing anything illegal by working against such a fund, any more than a physician who lobbies in support for tort reform or adjustments to the Medicare fee schedule. But the use of questionable expert testimony by Edwards (was it "debatable" or "junk science"?, if it was junk science did Edwards know it was?) is generating debate among the lawyer blogs.
Walter Olson and the folks at Overlawyered "aren't buying this line of reasoning" about the requirements of "zealous advocacy" to present all evidence at a trial to support the position of one's client.
While the LitiGator has links to the ACOG report on neonatal encephalopathy and cerebral palsy. He also writes this:
As a defense attorney who has been defending doctors for the last two decades, I can state quite definitively that during that entire time there has been no perception that the association between perinatal oxygen deprivation in the neonate and neurological deficits in later life is "junk science" as that term is generally used. It has instead been an actively debated and litigated issue of causation. "Junk science" refers to a principle of causation which is unproven and not generally accepted in the relevant field of practice. Up to 2003 for many forms of CP, and even now for others, that label would not properly apply to the causal arguments in question.
Peter Nordberg has this to say:
The duty in question arises not from any particular verbalization of the litigator's responsibilities in codes of professional conduct, but rather from the litigator's role in an adversary system. That role does not include adjudicating the claims, or withholding admissible expert evidence because the litigator might reach different conclusions as an armchair medical scientist. It does include what the client has a right to expect, and does expect: viz., that on pain of malpractice exposure, the litigator will press the client's interests through whatever evidence is legitimately at the litigator's disposal. That is the "honorable" thing to do. And under the rule of law, it is not the litigator, nor any single man or woman, who ultimately defines the boundaries of evidentiary legitimacy. The rules of evidence do that, for honest advocates and scoundrels alike.
And finally, David Bernstein at The Volokh Conspiracy makes perhaps the most salient point of the debate (emphasis mine).
It's obviously foolish to have such complex issues of medical causation being determined before a nonexpert jury in an adversarial process to begin with, and I can't really begrudge Edwards, or any other attorney, who play their appointed roles in the system. It's convenient for civil justice reformers to use wealthy trial lawyers as their public enemy, a good robber barronish foil. And certainly I object when trial lawyers manipulate the political process to their benefit, as they did in many ways during the tobacco litigation. But when they are merely doing their jobs within the system as it exists*, I refuse to demonize them; repeat after me, civil justice reformers: blame the system, not the participants in it.
Or, as the title to this post suggests, hate the system that lets things like this happen, and work to fix it. I'm not suggesting that anyone vote for Edwards (I'm not), nor am I suggesting that Sen. Edwards get a free pass on this because I believe it reflects on his character. I am playing the Devil's advocate (no pun intended) a little bit on this issue because it helps me in my feeble attempts to stay intellectually honest. |
When I saw the first round of recent posts on Sen. Edwards' career as a plaintiff's attorney for medical liability claims by Dr. Smith, Dr. Rangel, and DB, I thought, "Would Edwards have been able to pull this off in a state like Florida where they have a birth related neurological injury compensation fund?"
Well thanks to Dr. Smith and the The New York Times I know that he didn't want to find out:
An examination of Mr. Edwards's legal career also opens a window onto the world of personal injury litigation. In building his career, Mr. Edwards underbid other lawyers to win promising clients, sifted through several dozen expert witnesses to find one who would attest to his claims, and opposed state legislation that would have helped all families with brain-damaged children and not just those few who win big malpractice awards.......One approach would be to limit awards and create a fund to be shared by all families with similarly afflicted children.
This is not the first time Mr. Miller has championed the idea. In 1991, his legislation to create such a fund was defeated, in large part by the state's trial lawyers. Among those who spoke out against the bill was Mr. Edwards, who called it a baby tax.
One purpose of such a fund, as a former North Carolina State legislator states, is to provide compensation to those who cannot get a lawyer to take their case. Another is to provide a predictable method of compensation that cannot be achieved with a system relying on jury verdicts. Another program exists in Virginia. According to an evaluation of the Virginia program:
The legislature's Joint Legislative Audit and Review Commission (JLARC) evaluated the program in November 2002. It determined that the program overall was beneficial for ob/gyns and hospitals and that children in the program fared better than they would have under the tort system with a malpractice award cap.
As of October 2002, 75 children had been found eligible for benefits. JLARC found that their annual compensation exceeded the tort system's annual awards and expenses for severe birth injury cases, which it estimated at $ 10. 8 million. Program beneficiaries had received $ 25. 3 million since 1992 when the first distribution was made, an average of $ 62,000 per year per participant.
But certainly, Senator Edwards wasn't doing anything illegal by working against such a fund, any more than a physician who lobbies in support for tort reform or adjustments to the Medicare fee schedule. But the use of questionable expert testimony by Edwards (was it "debatable" or "junk science"?, if it was junk science did Edwards know it was?) is generating debate among the lawyer blogs.
Walter Olson and the folks at Overlawyered "aren't buying this line of reasoning" about the requirements of "zealous advocacy" to present all evidence at a trial to support the position of one's client.
While the LitiGator has links to the ACOG report on neonatal encephalopathy and cerebral palsy. He also writes this:
As a defense attorney who has been defending doctors for the last two decades, I can state quite definitively that during that entire time there has been no perception that the association between perinatal oxygen deprivation in the neonate and neurological deficits in later life is "junk science" as that term is generally used. It has instead been an actively debated and litigated issue of causation. "Junk science" refers to a principle of causation which is unproven and not generally accepted in the relevant field of practice. Up to 2003 for many forms of CP, and even now for others, that label would not properly apply to the causal arguments in question.
Peter Nordberg has this to say:
The duty in question arises not from any particular verbalization of the litigator's responsibilities in codes of professional conduct, but rather from the litigator's role in an adversary system. That role does not include adjudicating the claims, or withholding admissible expert evidence because the litigator might reach different conclusions as an armchair medical scientist. It does include what the client has a right to expect, and does expect: viz., that on pain of malpractice exposure, the litigator will press the client's interests through whatever evidence is legitimately at the litigator's disposal. That is the "honorable" thing to do. And under the rule of law, it is not the litigator, nor any single man or woman, who ultimately defines the boundaries of evidentiary legitimacy. The rules of evidence do that, for honest advocates and scoundrels alike.
And finally, David Bernstein at The Volokh Conspiracy makes perhaps the most salient point of the debate (emphasis mine).
It's obviously foolish to have such complex issues of medical causation being determined before a nonexpert jury in an adversarial process to begin with, and I can't really begrudge Edwards, or any other attorney, who play their appointed roles in the system. It's convenient for civil justice reformers to use wealthy trial lawyers as their public enemy, a good robber barronish foil. And certainly I object when trial lawyers manipulate the political process to their benefit, as they did in many ways during the tobacco litigation. But when they are merely doing their jobs within the system as it exists*, I refuse to demonize them; repeat after me, civil justice reformers: blame the system, not the participants in it.
Or, as the title to this post suggests, hate the system that lets things like this happen, and work to fix it. I'm not suggesting that anyone vote for Edwards (I'm not), nor am I suggesting that Sen. Edwards get a free pass on this because I believe it reflects on his character. I am playing the Devil's advocate (no pun intended) a little bit on this issue because it helps me in my feeble attempts to stay intellectually honest. |
