Monday, August 14, 2006

Stossel's Story: A Polemic

We are violating our own prescription against polluting the national discourse on medical malpractice liability with partisan polemic. We're sorry, but we just can't help ourselves.

Having made its original appearance in the August 4 New York Sun, an anti-tort* column by ABC's John Stossel (you know, the guy who needs a break) has now been pressed into service as a retread at Point of Law.

It is a retread in more than one particular. In the space of a few short paragraphs, it deploys so many shopworn propagandistic parlor tricks that it's hard to keep track of them all.

But we're going to take a stab at nailing down a few of them.
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.
Stossel cannily deploys the traditional opening gambit of almost all anti-tort invective: an ad hominem attack on lawyers. In these philippics, it is customary, in particular, to trot out the phrase "trial lawyers" at the first opportunity. Like so many words and phrases with double meanings, this one serves handily as a rhetorical pivot point. Its more expansive meaning ("litigators in general") helpfully maximizes the universe of lawyers toward whom the reader is invited to feel antipathy, thereby improving the odds that each reader will hit upon some particularly contemptible exemplar, drawn from personal experience, hearsay acquaintance, or some suitable work of fiction. The availability of this more expansive interpretation also helps the anti-tort rhetorician present himself as fair-minded and even-handed. It's not lawsuits he necessarily dislikes, we're invited to think, so much as litigators of all stripes. (A simple matter of taste, perhaps, but who could really argue?) After the reader has assented to the truism that litigators are a generally shifty and unpleasant crowd, the meaning of the phrase can segue to the narrower category actually in the anti-tort rhetorician's crosshairs: litigators who represent plaintiffs.

Stossel actually manages to improve on this time-honored rhetorical tactic, by conflating no fewer than three distinct groups under the "trial lawyer" rubric: litigators, plaintiffs' lawyers, and ATLA members. In fairness, Stossel did not invent this particular embellishment, but he does carry it off with remarkable panache. Look at the first paragraph from Stossel's piece again, and notice its stark and ominous message. Trial lawyers have a club. They have recently changed the name of this club, hoping to confuse you about its membership and true purpose. But that is only one of their ruses. They have also tried to sell you a myth. They'll tell you that by suing on behalf of the little guy, they are somehow helping to protect the little guy. Don't be fooled. Every time they file a lawsuit, what they're really doing is hurting the little guy -- thousands of little guys, in fact, each time they do it.

Stossel's portrayal is so vivid, you can practically hear the chorus of a thousand little-guy squeals.

In sum, Stossel's opening paragraph briskly paints the propagandist's standard portrait: a shadowy group of suspect persons who are less than forthcoming about their real agenda (and who may even disclaim membership in the suspect group) are pretending to be your friends, but they are actually doing things that will harm you and people like you.

This picture once painted, Stossel is able to dress himself in sympathetic garb, as Debunker of the suspect group's mythology. We should pause to consider the poor fit of that costume. If there is a received wisdom about litigation in America these days, it is a received wisdom of the Manhattan Institute's authorship. After years of relentless anti-tort PR, even Americans who are otherwise oblivious to issues of policy have learned to say "frivolous lawsuit." So Stossel isn't exactly swimming against the tide of popular perception here. Yet he sticks to his story: a myth is abroad, and Stossel is here to puncture it.
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 $1 million. 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.
Note how Stossel continues to cast himself as the Unveiler of Hidden Truths. There are simplistic headlines that tell part of the story, but Stossel is able to bore down beneath them. This boring down, however, does not entail analysis of hard, documented facts. Instead, Stossel bores down via parable. His parable of choice involves a $1 million settlement of a claim for personal injury from an allegedly defective medical device. Completely missing from this parable, intriguingly, is any discussion of whether the notional device was defective or negligently implanted. Completely missing, as well, is any discussion of the extent of the notional patient's physical or economic injury. Stossel will be more than content, perhaps, if the reader assumes the claim was fraudulent and extortionate. Or maybe Stossel will be happy enough if the reader shares Stossel's own apparent attitude that the victim's injuries simply don't matter, even if the victim was torturously maimed through wanton medical malfeasance. The main thing, in Stossel's parable, is that the trial lawyers ran amok, sued so many defendants that only an omniscient deity would be able to ascertain their true number, and scared the pretty nurses.

Oh, wait. Let's not forget those costs. We are first supplied with an arbitrary figure of $1 million as the base award. Is this the mean or median award that Stossel's investigation of jury verdict reports or insurance company data has disclosed for medical device cases? Is it supposed to be typical on at least the anecdotal level? It is, at all events, a nice round number, and one that sounds suitably lavish, no doubt, in a parable devoting no attention whatsoever to the actual victim's predicament. It also functions, however, as a convenient rhetorical benchmark for "other" costs -- the ones that raise Stossel's overall ante to something "much more than $1 million." It is to serve as such a benchmark, we suspect, that the number is floated at all, even in its purely hypothetical form. How much, we wonder, is "much more than $1 million"? Some additional fractional increment of another million? Or some multiple? Is something more in the neighborhood of $2 million or $3 million, in other words, being suggested? Stossel lets this question dangle -- perhaps because he'd like the reader's imagination to run away with itself, or perhaps because the whole parable is a simple exercise in storytelling to begin with. The point here, for Stossel, is not to get tiresomely empirical, as might only bore the reader.

Stossel's narrative does slip up in one minor detail. Were he a faithful reader of Point of Law, Stossel would know that plaintiffs' lawyers don't name extra defendants to ward off legal malpractice claims. They would have little incentive to do so, because lawyers enjoy de facto immunity from malpractice claims -- or so we're told.
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.
Stossel continues with the time-honored tactic of personalizing the issues. Well-meaning doctors are juxtaposed with plaintiffs' lawyers (now called by their true name) who think nothing of casually destroying the lives and reputations of everyone they touch. This is no mere parable any more. This is the putatively normal case -- the kind encountered by "most people." In this putatively normal world, all the nurses are terrified; the doctors, sleepless over the decimation of their hard-won reputations; the plaintiffs' lawyers, deceitful. Patients meanwhile languish unattended on gurneys in hospital hallways whilst their caregivers are closeted with lawyers doing deposition prep, which consumes "several hours a week" in a lawsuit that "drags on for years." It was foolish of those doctors, by the way, to pay those skyrocketing malpractice premiums, because their insurers are apparently disclaiming coverage -- or so we deduce, given that the fees from the defense lawyers these doctors were "forced" to retain typically eat up the doctors' "entire life savings."

Again, Stossel's is the standard propagandistic move in this context: construct a model according to which the normal case is that medical malpractice suits are meritless, rapacious, and Dickensian. Describe this supposedly normal case in almost cinematic fashion. Depict the defendants as innocent naifs and the plaintiffs' lawyers as mean, cynical, and unpleasant people. Acknowledge, if pressed, that there may be scattered exceptions, but give them short shrift. Assign all responsibility for the arduous litigation process to the injured patient who could have taken his lumps, ignored the blandishments of his lawyer, and refrained from suing, but who chose instead to whine and play the victim. Assign no responsibility to medical error, insurer intransigence, or defense counsel. It's plaintiffs' counsel, remember, who stirred up this fray, probably for reasons of greed. Defense counsel, by contrast, are hired because people are "forced" to retain them.
Soon doctors begin practicing hyperdefensive medicine, ordering expensive and largely unnecessary tests to avoid lawsuits. Some of the tests are painful for the patients. Today, 51% of doctors recommend invasive procedures like biopsies more often than they believe are medically necessary.
Here Stossel advances the only solidly testable empirical claim in his entire piece. Given the ardor with which the "defensive medicine" argument has been pressed for decades, Stossel's solitary foray into the empirical realm should strike the reader as pathetically weak. No citation or documentation is given for the "51% of doctors" statement. Rather, it is blandly recited in factoidal manner, as though this were a commercial for an over-the-counter hemorrhoid preparation -- perhaps with the idea of validating the intellectual laziness of any readers who have already been won over by Stossel's narrative powers and therefore feel no need to bother with mere evidence. Stossel is meanwhile oddly incurious about the 49% of all physicians who apparently order "invasive procedures like biopsies" less often than they believe necessary, or exactly as often as they think necessary. How many are there of which? If the 49% fall preponderantly in the "exactly as often" category, is that because they consider the tests necessary more often, or because they perform them more grudgingly? Or shouldn't we care? Are we nitpicking now, obstinately refusing to enter into the factoidal spirit in which this number was offered?
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.
It is tempting to engage the narrative on the merits at this point. It is tempting to ask whether reticence to admit mistakes is not intrinsic to any regime that includes some measure of accountability for them. It is tempting to wonder how those rising malpractice premiums can get entirely "passed on" to patients, if the expense of paying those premiums is also driving providers to widespread economic ruination -- a staple of anti-tort lore. What interests us more, however, is that little slip at the end of this paragraph, where Stossel lets his guard down and betrays that he himself is growing bored with the all-too-familiar plot in this little tale. "Then the carriage turns into a pumpkin but the prince . . . well, I could go on, but you get the idea. He figures it all out in the end, and they live, you know, happily ever after, like always. Now go to sleep."
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.
Back to the lawyers. They get a big percentage. It's a tax. "Life-saving products" -- inanimate objects -- are "penalized" by this tax. Especially the life-saving ones, in fact (for reasons, however, which Stossel leaves obscure). Take pacemakers. They're more expensive, by thousands of dollars, than they would be if we didn't have lawsuits. The pacemaker manufacturers themselves (i.e., the people sued in these lawsuits) tell us so.

All of this is half-hearted prolegomenon to the ultimate payoff: "Lawsuits punish hundreds, if not thousands, of innocent people." Each lawsuit "punishes" hundreds or thousands of innocents? Utter hooey. All lawsuits, considered collectively, "punish" hundreds, if not thousands? That doesn't sound so bad, in a nation of almost 300 million -- depending, we suppose, on what the "punishment" is. Does the punishment in question consist of paying the higher prices that Stossel says litigation causes? Well, how much higher are those prices? Meanwhile, are these consumers also "punished" whenever the manufacturer incurs any cost? Or is it only the costs of dispute-resolution that count as punitive? And why, by the way, are we calling these consumers innocent? Would they themselves not be quick to sue, if injured by the products they purchased? If not, then where do all these lawsuits come from? Whatever their provenance, would they not mostly go away, if the products never injured people?

No matter. The key thing is that Stossel's readers have been encouraged to see themselves as victims -- a mentality that would be roundly decried, ironically enough, if an injured patient fell prey to it. They have also been told that "lawsuits" are the real economic culprit, while the injuries that occasion those lawsuits, and whose costs must be born by someone, have been swept under an expository rug.

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.
We "cannot imagine" what new products might have improved our lives, had a litigious culture not strangled innovation (a litigious culture, however, that has existed to one degree or another over the entire past century, during which Stossel says medical innovation has extended our life-spans by thirty years).

Stossel could be perfectly right, of course. Just look at how fear of legal liability has so utterly stifled stem cell research.

But if we cannot imagine these foregone miracle innovations, how can Stossel purport to know that the costs of foregoing them are "bigger" than the safety benefits that tort liability has conferred?

Stossel knows this, we submit, in the way that the faithful can know things even in the absence of evidentiary support. He knows it because its truth is integral to Stossel's canonical story. Are there features of reality that correspond to parts of this story? You bet there are. Princesses and pumpkins really exist as well. But that doesn't make Cinderella anything more than a popular fairy tale.
* We nearly said "tort reform," but we stopped ourselves, for two reasons. First of all, Stossel's piece shows no interest in "reforming" anything. It simply complains. But secondly, we've come to the view that even scare-quotes do not sufficiently confront the Orwellian qualities of this phrase. In our view, the word "reform" simply does not capture the actual agenda of most self-identified "tort reformers," which is to "reform" the tort system by so radically shrinking its field of operation as to effect its de facto abolition, save perhaps in cases of battery and tortious interference with prospective economic advantage. From now on, we plan to refer to that agenda forthrightly as the "anti-tort" position. There may be some risk that the occasional reader will mistakenly interpret the new phrase to denote simple opposition to tortious misconduct. But as potential misunderstandings go, we prefer to live with that one, rather than contribute any further to mistaken perceptions that "reform" is really the issue on the table.


Greedy Trial Lawyer writes ...

Personally, I felt John's rantings were the result of traumatic brain damage or some other mental breakdwon. After reading your analysis the correct diagnosis could very well be Parlor Trickery.

He needs to either improve his act or get medical attention.

6:59 AM  

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