Whatever the number, surveys of doctors and anecdotal evidence — even allowing for self-serving exaggeration — suggest that the occurrence [of defensive medicine] is high. A stunning 93 percent of Pennsylvania specialists in high-risk fields admitted practicing defensive medicine, according to a 2005 survey by the Journal of the American Medical Association. So did 83 percent of high-risk specialists in a 2008 Massachusetts Medical Society survey. That study also found that respondents’ fear of liability accounted for almost 30 percent of the CT scans and MRIs they ordered and had spurred 28 percent of them (including 44 percent of OB-GYNs) to avoid treating high-risk patients. …

Similar considerations explain why we already have specialized courts without juries for vaccine liability, workers’ compensation, bankruptcy, and tax cases.

(cross-posted from Point of Law)

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One of the most dedicated enthusiasts for such trials is attorney/controversialist Scott Horton, who writes at Harper’s and Balkinization and is an adjunct faculty member at Columbia Law School; after noticing how often Horton’s output seemed to be in need of fact-checking, I spent a few minutes just for the fun of it stringing together a sampling of such instances which appears here (scroll).

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According to Newsweek, the young man at NCCU [North Carolina Central University] said that he wanted to see the Duke students prosecuted, “whether it happened or not. It would be justice for things that happened in the past.”

(”The Biggest Scandal in the Duke University Rape Case”, syndicated/Capitalism Magazine, May 17). The comment was hardly representative of anyone’s views but the one student’s, though, contends John Schwade in the Durham News (”Article opts to sensationalize with its color commentary”, Apr. 29). More: Dr. Helen, Apr. 22. Stuart Taylor Jr. has a powerful column on the subject which however is online only to National Journal/The Atlantic subscribers (”An Outrageous Rush to Judgment”, May 2). And guess who’s involved himself in the case, as an advisor to the complainant’s family? None other than ace money-extractor Willie Gary, long familiar to readers of this site (Wendy McElroy, “Is ‘Duke’ Case Headed to Civil Court?”, FoxNews.com, May 16).

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In the mean time, for readers who followed Stuart Taylor’s refutation (posted here Jan. 19, with comment) of Stephanie Mencimer’s tendentious Washington Monthly article of last October, the Washington Monthly has at length notified its online readers of Taylor’s response, and posted a (to me, very lame) defense by Mencimer of her article (Feb. 15).

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I don’t make it a practice to respond to Mencimer’s writings, but the distinguished legal journalist Stuart Taylor, Jr., who writes an influential column for National Journal and contributes to Newsweek, was outraged by her attacks on his work in an article she wrote for the October Washington Monthly and took the time to craft a lengthy, devastating point-by-point rebuttal. He sent it on December 16 to the editors of the Washington Monthly including editor-in-chief Paul Glastris.

Remarkably, in the month since then, the Washington Monthly editors have neither posted the letter for their readers’ benefit nor made any attempt to rebut it. Now Taylor has generously consented to let me post his letter here. Readers can draw their own conclusions about how much of Mencimer’s credibility is left standing after his thorough dissection — and about what it means for the Washington Monthly’s reputation that it seems intent on stonewalling on her behalf. Update Feb. 16: Washington Monthly and Mencimer reply.

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Steve Bainbridge, noting Edwards’s jobs-jobs-jobs economic rhetoric, wonders whether the Senator pauses to worry about certain jobs destroyed by some of his main backers (Feb. 25). Edwards’s latest fund-raiser in Houston was hosted by John O’Quinn, who as the impresario of the breast implant litigation that bankrupted Dow Corning knows a thing or two about destroying jobs (Rachel Graves, “Fund-raisers bring Edwards to town”, Houston Chronicle, Feb. 24; Ken Herman, “The 2004 Election”, Cox/Palm Beach Post, Feb. 25). And on the Edwards-and-cerebral-palsy controversy that we and several other webloggers were pursuing earlier this month, Franco Castalone (The LitiGator) has added a pair of posts clarifying and extending his earlier comments, the first of which (Feb. 15) relays a wealth of information about no-fault birth injury compensation programs and the litigation they would replace, and the second of which (Feb. 16) makes some valuable points about civility in disagreement, and also says generous things about this site.

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Stuart Taylor, Jr.’s response (continued; for first part, click here):

7. Newsweek’s report that “according to one estimate, doctors waste $50 billion to $100 billion on ‘defensive medicine’” is, if anything, an understatement. The main source is a 1996 article by Daniel Kessler and Mark McClellan in The Quarterly Journal of Economics concluding on the basis of an empirical study: “‘Defensive medicine’ is a potentially serious social problem: . . . . We find that malpractice reforms that directly reduce provider liability pressure lead to reductions of 5 to 9 percent in medical expenditures without substantial effects on mortality or medical complications.” Applied to the nation?s current $1.65 trillion in annual medical expenditures, that comes to $82.5 billion-$148.5 billion. Newsweek did not claim that this inherently somewhat subjective estimate (or any other) is universally accepted. The two sources cited by ATLA, both more than 10 years old, predate a rapid rise in malpractice liability costs and insurance premiums. And in recent surveys, overwhelming majorities of doctors have said that they and their colleagues order many medically unnecessary tests to protect against lawsuits.

8. Nothing in ATLA’s “facts” undermines Newsweek’s statement that there have been thousands of lawsuits by people who hurt themselves at playgrounds. ATLA’s assertion that “insurers have played a large role in forcing compliance with CPSC standards and other safety changes” merely confirms that liability fears have led to the removal of thousands of challenging play structures such as monkey bars, jungle gyms, and high slides. ATLA’s claim that this has made playgrounds safer is unsupported by empirical evidence and disputed by some (though not all) experts. These experts say that the new, certifiably “safe” playground equipment is so boring that kids look for dangerous ways to use it, such as climbing over safety bars or the tops of swing sets and jumping off. And even if the boring new playgrounds are a bit safer, many parents complain that an obsessive search for absolute safety leads to such absurdities as bans on dodge ball and even on running.

9. ATLA admits the truth of Newsweek’s report on the sex offender who threatened to sue police for not catching him sooner. It claims that the moral is that most lawyers won?t take cases without merit. But the evidence is that many lawyers do take — and many judges allow — thousands of lawsuits that most Americans would deem without merit. Indeed, in an important new law review article based on massive evidence about asbestos lawsuits, Lester Brickman, a professor at the Cardozo Law School of Yeshiva University, claims: “Asbestos litigation has become a malignant enterprise which mostly consists of a massive client-recruitment effort that accounts for as much as 90 percent of all claims currently being generated, supported by baseless medical evidence which is not generated by good-faith medical practice, but rather is primarily a function of the compensation paid, and by claimant testimony scripted by lawyers to identify exposure to certain defendants’ products.”

10. ATLA challenges Newsweek’s report that a fifth-grade boy’s mother sued when he broke an arm shooting hoops on his school playground. The case is real: Bryan Raiken v. Toms River Regional School District, Ocean County, NJ docket L28992, location #0100975.

11. Despite ATLA’s claim that there is no “empirical evidence that 80% of malpractice claims are unfounded,” that is one conclusion of the definitive empirical study of medical error, the Harvard Medical Practice Study of thousands of cases in New York State, led by Dr. Howard Hiatt, former dean of the Harvard School of Public Health. It concluded that “more than one-half [of the malpractice claims] arose from instances in which there was neither negligence nor any identifiable injury, and one-third arose from instances of injury but no negligence; only one-sixth corresponded to ‘true’ negligent incidents.” Although that study is based on 1984 data, others have reached similar conclusions, and there is no evidence that the percentage of malpractice claims that are valid has grown.

Professor Vidmar’s claim that malpractice insurers do not settle frivolous cases does not refute Newsweek’s statement that insurance companies pay to settle many unfounded malpractice claims. The explanation is that by most legal definitions, only an extremely narrow category of claims that have absolutely no chance of succeeding in court are deemed “frivolous”; “unfounded” claims–meaning claims that in fact involve no medical negligence — are far more numerous, and sometimes succeed due to uncorrected errors by judges and juries. ATLA also neglected to mention the statement in the Vidmar document that it cites (in footnote 14) that Vidmar had “received remuneration” for preparing that document for use in a legal challenge to Indiana?s caps on malpractice damages.

12. ATLA seeks to imply (in footnote 12) that I am biased because of my past work as an attorney with Wilmer, Cutler & Pickering. It neglects to mention that I left that firm more than 23 years ago to become a New York Times reporter and did no tort reform work while there.

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Stuart Taylor?s point-by-point response follows (points 1 through 6):

1. Kentucky oral sex lawsuit: ATLA’s characterization of the December 18, 2002 Lexington Herald-Leader article is false. That article merely reported — as did Newsweek — the lawsuit’s claim that the school board had ruled that the act was forced and the girl was sexually assaulted.

In addition, school officials have specifically denied — both in court papers and in interviews with Newsweek — the lawsuit?s allegations that the girl was forced; that the Board of Education had so ruled; and that the girl?s two-day suspension was “for not promptly reporting the assault.” School officials say the incident was consensual. The lawsuit admits that the girl did not yell or scream. Adult chaperones on the bus heard nothing unusual. And ATLA?s implication that the lawsuit demands only a “training program” is deliberately misleading. The lawsuit demands money for the “pain and suffering” of both the girl and her mother and other alleged damages. (See also Newsweek?s “editor’s note.”)

2. $70 million California malpractice judgment: See Newsweek “Editor’s Note” as to the amount. In addition, ATLA?s implication that this was a clear case of medical negligence is wrong. For example, Stanford University Hospital, one of three defendants, presented unrefuted expert testimony that it had followed standard procedure in California for such cases.

3. Ryan Warner, Dr. Sandra Scott, and the Rev. Ron Singleton: The cover package made it clear that (as ATLA purports to reveal) none of them has ever been sued. But Ryan Warner (who has already had to hire a lawyer and give a sworn deposition) fears that he will be added as a defendant in a pending $100,000 lawsuit by a man who broke his ankle sliding into third base in a softball tournament that Warner had organized. Dr. Scott has often been threatened with lawsuits by emergency room patients she has treated.

ATLA?s assertion that the federal Volunteer Protection Act of 1997 gives Warner and others like him immunity from suit is false. That law?s protection is narrow and full of holes. To name just one, plaintiffs can get around the law simply by claiming “gross negligence.” The law provides no protection at all for the many coaches, referees, and other part-time helpers with kids’ sports who are paid more than $500 a year.

The fact that South Carolina and other states have so far rejected claims for clergy malpractice has not prevented plaintiffs from suing clergy and imposing years of legal costs and other burdens in efforts to create such a cause of action. In any event, Singleton spoke mainly of his fear of being sued for improper contact, not for “malpractice.”

As the web site Overlawyered.com points out, courts frequently allow lawsuits against clergy for “breach of fiduciary trust,” which is virtually the same as clergy malpractice. And at least one ATLA-member law firm has advertised that it has “recover[ed] large verdicts and substantial settlements” in clergy malpractice cases.

The main point of this package was not to provide a list of unwarranted lawsuits, although it cites plenty and could have cited thousands more. The main point was to show how the readiness of many plaintiffs and lawyers to bring unwarranted lawsuits has cast a chill of legal fear over the daily lives of many professionals and other ordinary Americans, including many who have never been sued.

4. ATLA asserts: “The McDonald’s obesity cases were dismissed? The sex offender could not find a lawyer willing to take his case and never filed suit? The Cheerleader’s parents never filed suit? The lightning strike case was lost at every level due to governmental immunity.”

But Newsweek:

–did not suggest that any McDonald?s obesity lawsuits have been successful–yet. (ATLA?s leaders have studiously avoided expressing disapproval of them.)

–fully disclosed that the sex offender could not find a lawyer and never sued.

–cited the case of one disappointed would-be cheerleader whose parents sued and another whose parents complained up the administrative ladder without going to court.

–did not suggest that this particular lightning-strike lawsuit was successful.

5. ATLA?s assertion that “litigation is down and awards are steady” is a gross misrepresentation of the statistical trends, which do not undermine anything in the Newsweek cover package. Newsweek was correct in saying that “the ‘litigation explosion’ of the past 30 years may be leveling off (though one study shows a sharp recent uptick).” And the sharp recent uptick is quite dramatic. Details:

The same (somewhat dated) National Center for State Courts report that says tort filings declined by 9 percent from 1992 to 2001 also says that almost all of that decline came in routine car-crash lawsuits, which were unmentioned in the Newsweek package. The report shows that medical malpractice claims, a major focus of the Newsweek package, increased by 24 percent from 1992-2001 (in line with population growth); that the median malpractice award was $280,000, 16 times the median car-crash award; and that total tort filings soared by 40 percent from 1975 and 2001, despite the dip during the 1990’s.

ATLA’s claim that “Federal civil filings are not only down, but the percentage of civil filings that are personal injury cases has also declined” was contrary to the latest data available at the time of Newsweek’s cover package. Chief Justice Rehnquist released new data on January 1 showing an 8 percent drop in civil filings in fiscal 2003, “primarily as a result of decreases in personal injury/product liability cases involving asbestos (such filings had soared 98 percent the previous year).” Still more recent data show that asbestos filings have begun to soar again.

More important than such fluctuations in the number of lawsuits is the cost of the tort system to society, both direct and indirect. After leveling off during the 1990?s, the system?s direct costs soared by a stunning 14.4 percent in 2001 and another 13.3 percent in 2002, to a 2002 total of $233 billion, the equivalent of a 5 percent tax on wages, according to a report released on December 10 by Tillinghast-Towers Perrin, which publishes the most definitive trend statistics on tort system costs. (The Newsweek package, which came out before this new report, cited the $205 billion figure for 2001.)

Inflation-adjusted direct U.S. tort costs per person have shot from $89 in 1950 to $809 in 2002, the Tillinghast report says. The direct costs of medical malpractice claims jumped by an average of 11.9 percent a year from 1975 to 2002. Of the $233 billion total, only 22 cents on the dollar went to compensate alleged victims’ economic losses; almost as much (19 cents) went to their lawyers; 24 cents went to payments for noneconomic losses, mainly pain and suffering; 14 cents went to defense costs; and 21 cents went to insurance overhead costs, according to the Tillinghast report. The tort system’s indirect costs — including many thousands of lost jobs at the more than 60 companies bankrupted by asbestos lawsuits and tens of billions of dollars in medically unnecessary tests to insulate doctors from liability — are impossible to measure precisely. (So are the system?s indirect benefits, including safer products.) The indirect costs probably exceed the direct costs.

6. Every sentence (save one irrelevancy) of ATLA?s characterization of the Tillinghast firm is false, even aside from ATLA?s continued use of the now-outdated 2001 figure of $205 billion in direct tort system costs. Although the actuarial and consulting firm does provide services to insurance companies and self-insured businesses?as well as insurance regulators?its reports on tort system costs are funded internally. Its $233 billion total is not “the cost of the entire property/casualty insurance industry”; the only insurance costs included are liability payments to allegedly injured parties and their lawyers, payments for legal defense and other costs of insured parties, and administrative costs (overhead) directly attributed to tort liability coverage. Nor does the $233 billion include any investment costs or ?non-tort claims, like property damage caused by a storm.” Insurance overhead amounts to 21 percent?not 40 percent–of the $233 billion. If it were omitted, the current rate of increase in total tort system costs would be larger, since insurance overhead has declined as a percentage of the total. The annual Tillinghast reports stress that their purpose is “to provide a straightforward, objective analysis of cost and trends, and not to support any particular point of view.”

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A final irony: McDougal concludes her essay with “I also know that if all those who want to restrict the legal rights of ordinary citizens have their way, I wouldn’t have waited seven months for an apology from the doctors, which I got only after my story became public. I would have waited forever.” I’ll leave aside the fact that many ordinary citizens are victims of societally harmful tort lawsuits (see, e.g., Feb. 7, 2000). Has McDougal considered that perhaps the reason that the doctors waited to apologize for a mistaken mastectomy until after she went public was because they were afraid that the apology would be used against them in a lawsuit? (Linda McDougal, “My Turn: I Trust Juries?and Americans Like You”, Newsweek, Dec. 22).

The “Civil Wars” author, Stuart Taylor, was confronted with a series of questions pulled from the same ATLA press release McDougal used, and responded to them in an on-line chat. (Stuart S. Taylor, MSNBC on-line chat, Dec. 11).

Sidenote: we covered a lawsuit of a Pennsylvania parents who sued their school board because their 13-year-old daughter was suspended for a consensual sex act on a school bus (see Sep. 19). Newsweek, in its story, mentioned a superficially similar Kentucky case that involved an alleged sexual assault of a 14-year-old on a school bus, resulting in criticism from McDougal and ATLA, but also going to show that Newsweek only scratched the surface of the problem by dint of its space-limited selections for the story.

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