Sometimes life hands you crap and no one is to blame. That's the tragic lesson that John and Elizabeth Edwards, the married couple, are learning and accepting. But it's not something that John Edwards, the malpractice litigator, ever accepted. At least not in the courtroom.
John Edwards made his reputation and his fortune by vilifying physicians when crap happened, and convincing juries through questionable science, an aggressive expansion of malpractice territory, and powerful courtroom theater that someone was at fault. As the Boston Globe put it in a 2003 assessment of his career:
"A Globe review of Edwards' career from the mid-1980s through 1997 reveals that he was more than just a practitioner of medical malpractice law. He was one of its most prominent specialists, stretching the reach of the law for nearly two decades. But he also came to personify some of the alleged excesses that reformers have sought to curb."
One of his most famous cases involved Jennifer Campbell, who was born with cerebral palsy, and whom he virtually channeled during a summation that resulted in a $6.5M damage award, a portion of which was ultimately set aside. In the summation, which has become "legendary," Edwards mesmerized the jury:
"I have to tell you right now -- I didn't plan to talk about this -- right now I feel her, I feel her presence," he said in his record-setting 1985 lawsuit on behalf of Jennifer Campbell, born brain-damaged after being deprived of oxygen during labor. "She's inside me and she's talking to you. . . . And this is what she says to you. She says, `I don't ask for your pity. What I ask for is your strength. And I don't ask for your sympathy, but I do ask for your courage.' "
After entering political life, Edwards spun his human-suffering profiteering into a noble fight for the "little guy." That's a false opposition if ever there was one. Here's how his campaign website puts it:
"For the next 20 years, John dedicated his career to representing families and children just like the families he grew up with in Robbins. Standing up against the powerful insurance industry and their armies of lawyers, John helped these families through the darkest moments of their lives to overcome tremendous challenges. His passionate advocacy for people like the folks who worked in the mill with his father earned him respect and recognition across the country."
Edwards doesn't have the courage to say that he sued doctors, but that's what he did. Many of these defendants had the same "families and children" that he smarmily puts forward as the beneficiaries of his nobility (nobility which created a personal net worth of between $12.8 and $60M, according to Wikipedia.). The only reason that the "powerful insurance industry" became the enemy was that without some pooling of risk in an era of litigation madness, doctors would be unable to practice, period.
I recognize that there is another side to the tort reform debate, and that medical knowledge is never fixed. For example, the clinical argument that Edwards relied on in the Jennifer Campbell case has been largely discredited, as a law professor writing for CNN.com noted:
"... it now turns out that the causal link between physician malpractice and cerebral palsy is much less certain than was once believed. Furthermore, fetal heart monitoring--which was adopted by many hospitals in the '70's and '80's as a defense against claims of medical malpractice -- may not be as accurate a tool to measure fetal distress as previously hoped."
You can't expect Edwards to be clairvoyant. Nonetheless, it is without question that he has contributed to the current climate in which doctors are perceived as greedy bumblers, insensitive to the consequences of their actions, and who would continue to leave their physical and emotional wreckage but for the legal recourse that malpractice litigation offers.
This perception has distorted the system. Because the plaintiff's bar has made doctors easy targets, legitimate claims -- and of course, there are some -- are overwhelmed by a climate of action in which the first response to a bad outcome is to head for the courtroom. One obvious result of that is the practice of defensive medicine. Would John Edwards want his wife's oncologists to focus more on extending and preserving the quality of her life, or on practicing medicine so as to reduce the possibility of litigation in the future? These should align, but in the current environment, there is no guarantee that they will.
But the issue is not just the cost of malpractice to the system. The issue is that the practice of medicine is becoming an increasingly unattractive career. Physicians are the only profession whose income is regulated by the government; in California, Governor Schwarzenegger's proposal for covering the uninsured calls for a surcharge on doctors' incomes. (Why not tax lawyers to help cover the cost of Legal Aid defense?)
And physicians are also the only profession where expertise has no value. A breast cancer oncologist with 25 years of experience can charge no more than an oncologist fresh out of residency. When these structural inequities collide with the cost of malpractice insurance, and with a social environment in which the doctors have becoming the whipping girls and boys for a broken system, we need to ask ourselves if the field will continue to attract the best and the brightest.
It will surely attract the most dedicated, but other than that, why would someone with the intellectual ability to get through four years of medical school and then a residency of as many as seven years (at a salary in the $40,000/$50,000 range) not opt for a more lucrative career, say finance, where run-of-the-mill traders can pull down a million or two a year?
The media has covered the Edwards' story in terms of the painful decision they faced about whether or not to continue the campaign. But conspicuously absent has been any real attention paid to the relationship between his career as a physician-basher and his current, trying circumstances.
John Edwards wants the best cancer care for his wife. Yet in the relentless pursuit of malpractice awards, he has helped create an environment where there is probably less of the best going around today, and where there will certainly be less of it in the future.