Don’t kill the lawyers just yet

Everyone knows at least one lawyer joke. My personal favorite goes as follows:

How can you tell the difference between a dead skunk in the road and a dead lawyer in the road? Answer: There are skid marks before you get to the skunk.

Disparaging attorneys is a time honored American pastime. In fact, I’m certain it’s a Western tradition that predates Shakespeare’s famous line in the play Richard VI that the first thing we do, kill all the lawyers.

If you’ve been following the news lately, you know the crosshairs have settled on lawyers since they are being blamed for fueling an explosion of medical malpractice lawsuits that allegedly drive physician’s insurance premiums up. That’s the conventional wisdom, anyway: attorneys, filing a blizzard of litigation, are persuading runaway juries to award staggeringly unreasonable jury awards to victims of medical malpractice. To remedy that, the Kentucky Senate passed Senate Bill 1, designed to impose caps on the size of jury awards.

I recently had the privilege of covering a seminar on the subject for a local medical journal. The panel included three insurance executives, one physician, and one attorney, who was a managing partner for a prominent Lexington law office. You know, the firm that runs commercials in which the mere mention of the law office’s name causes the prospective defendant to spill water or otherwise soil themselves.

One after another the insurance executives took their shots at the injustice of the legal system, blaming skyrocketing malpractice rates on greedy defendants who were being egged on by unscrupulous attorneys.

Then the attorney, who must have felt like he was at Custer’s Last Stand, finally had his say. What he revealed was surprising, and it has since been confirmed by Public Citizen, a Washington D.C. based public watchdog group. According to their study, malpractice awards actually remained relatively steady in Kentucky when you factor in the rising costs of medical care. During the same period, however, medical malpractice insurance rates leaped 29 percent.

There was, for me, one very telling moment during the panel discussion. One of the insurance company executives was adamant that jury awards should not include monetary compensation for pain and suffering. Award caps, he said, were the only way to contain the ever increasing verdicts being handed down by emotionally impressionable, soft headed juries. If a client who makes $20,000 a year loses an arm or a leg, or perhaps is killed, their loved ones should be compensated solely for the economic less they would endure.

“I hate to say it,” he said, “But if it happened to one of my family members, they’re not worth $17 million.”

Hogwash. I don’t believe anyone can be that objective about a medical tragedy unless the victims were simply names on a report or numbers on a page. If his wife, perhaps his child, died as the result of a physician’s negligence, somehow I don’t think a tidy quarter mil would quite cover it for him. He’d hire the baddest, sharpest attorney he could find.

The latest battle over caps on jury awards in medical malpractice cases is predicated on one widely believed fallacy – that the greed of attorneys alone is driving rates through the roof. Greed is indeed driving malpractice insurance rates up. Funny, though: it’s the insurance companies that are cashing in lately.

Written by Andy McDonald - BereaOnline.com Contributing Editor