No "frivolous lawsuits".

Although I enjoyed the recent (September 5) issue on healthcare in the United States, I feel compelled to answer what I believe is an unfair and inaccurate attack on the U.S. tort system in general and on medical malpractice claimants and their lawyers in general.

During my over 20 years of legal practice in Utah, Nevada, California, and Arizona, I have represented doctors and patients in medical malpractice cases. In my experience, I have never seen one of the highly-touted "frivolous lawsuits" that insurance companies warn against. I have never represented a medical malpractice plaintiff whose claims I thought to be meritless, and I don't know anyone who has. Here's why. Medical malpractice claims are expensive to bring. They require a good deal of medical knowledge on the part of the lawyer, an investment in finding and paying for medical experts who are willing to testify, and a commitment to taking a case all the way to trial.

A medical malpractice lawyer knows at the outset that his case will be hard-fought by the doctor's insurance company, and that propaganda from insurers that plaintiffs are the cause of ever-increasing medical costs will not put a jury on the side of the injured patient. A medical malpractice lawyer simply can't afford to waste his time and money on a "frivolous" lawsuit. To the contrary, there's more money for a trial lawyer in pursuing easier, less costly types of cases, such as automobile accidents or product liability cases.

So, what's the truth about malpractice verdicts and ever-increasing medical costs? Insurance companies would have you believe that runaway juries, sympathetic to anyone who can hobble into the courtroom with a legal complaint in one hand and a cane in the other, will award millions at the drop of a hat. My experience is different. Due to various protections in the litigation system itself, the fact of the matter is that very few medical malpractice claims ever get to court. If they don't have merit, they are generally dismissed in a summary proceeding long before a jury could ever get a peek at them, and if, by some fluke, an outrageous award were to be given by a jury, a judge or an appellate court can always overturn such an award.

That leads to the inevitable question--why, then, are medical malpractice premiums going up, and what can be done about it? The answer to the first is not complicated, but it has been the subject of a good deal of negative propaganda from both the insurance industry and the current Republican administration. When one looks hard at the numbers, a few surprising facts become clear.

First, the number of malpractice claims has actually gone down over the past few years. There simply is no "litigation explosion" in malpractice claims. Second, insurance company investments have tanked in many instances, leaving reserves lower and insurance company profits lower. Remember the dot-com bust? A lot of insurers lost a good deal of money in that fiasco--something completely unrelated to medical malpractice claims. Insurers must make tip the difference somewhere. Raising malpractice insurance premiums is one (although not the only,) way that is accomplished.

Interestingly, the insurance companies, with the help of the current administration, have a big-government solution to the "litigation lottery crisis" in medical malpractice claims--regulate the entire tort system as it affects medical malpractice claims. The regulations include a limitation on the amount of money that an injured patient can recover in a malpractice action, on the sole basis that the injury came from a negligent doctor and not, for example, from a negligent driver. They also include throwing procedural roadblocks in the way of an injured patient before he can bring a claim, shortening times for statutes of limitations in malpractice actions, and limiting the amount of attorneys' fees that can be paid in a medical malpractice case. At the same time, the insurance companies do not propose government regulation of their industry, their premiums, or their profits. No, it is the most vulnerable victims doctors and their patients--who end tip paying the price under this scheme.

It should come as no surprise to the readers of this magazine that the big-government solution doesn't work. In the states that have adopted such regulations on a state level, malpractice premiums have actually increased--not decreased, as promised by insurance companies. Meanwhile, despite the fact that fewer malpractice actions are being brought as regulations force patients to simply forgo their legal rights, malpractice itself rages on unabated. This "fix" simply isn't working.

RANDALL K. EDWARDS

Salt Lake City, Utah