The Wall Street Journal

July 16, 2004

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Lawyer Logic:
A Villain
For Every Victim

By DAVID ROBINSON
July 16, 2004; Page W11

John Edwards built his career suing doctors and hospitals, claiming that maternity-ward missteps caused newborns to develop cerebral palsy. The theory that doctor error is a common cause of CP was dubious when Mr. Edwards used it to win his cases, from the 1980s to the mid-1990s, and is universally rejected by experts today.

Like other plaintiff's lawyers, apparently, Mr. Edwards went shopping for medical theories, conveniently agreeable experts and sympathetic defendants -- a process that is easy to deplore. But the real problem with Mr. Edwards's record as a lawyer lies beneath the specifics of his cases, in the fundamental philosophy that motivated his work.

CP is a lifelong neuromuscular condition that ranges widely in degree. It is a manageable hindrance for some people and an insurmountable barrier to talking, walking and normal learning for others. Mr. Edwards's clients were on the severe end of the spectrum. He writes in his autobiography, "Four Trials," of his strong desire to see his clients' prodigious needs provided for and makes clear that he considers torts a tool of social justice.

[John Edwards]

Part of me is glad that his clients were well-compensated financially for their misfortune. Sympathetic jurors must have felt the same way. Seen in wider perspective, though, such victories are less noble. Our doctors and hospitals take excellent care of most people most of the time. But blockbuster pain-and-suffering awards, including several record-setting verdicts that Mr. Edwards won in his home state of North Carolina, push malpractice premiums up -- making it harder for average Americans to afford good medical care and for good doctors to afford to practice.

We should discipline physicians who fall down on the job. But we can, and should, do so without indulging in an arbitrary redistribution of massive wealth to a few victims and -- it should not be forgotten -- a large number of lawyers.

What is more, attacks on alleged negligence in the maternity ward may actually have hurt the quality of patient care. Many CP lawsuits, including one that Mr. Edwards describes in his book, turned on the theory that doctors could have prevented CP by ordering a cesarian section. Such suits put nonmedical pressure on doctors and hospitals to choose c-sections. In the past 30 years, the proportion of births by c-section has gone up fivefold. But a 2003 study in the American Journal of Obstetrics and Gynecology found that the rate of CP remains constant.

The real error of Mr. Edwards's approach, however, goes beyond costs and benefits. In his world, there is an alluring symmetry between victims and villains. He writes of wanting to represent people who "had the scales tipped" against them -- and presumes, without saying so outright, that someone involved in his clients' care must have done the tipping. For a self-described religious man, he seems to allow remarkably little room for the notion that some human misfortunes are not in human power to prevent.

I have cerebral palsy, and it's not my doctor's fault. Each of us is dealt a hand in life; mine happens not to include a very limber body. The minor inconveniences I face each day -- an inability to drive a car, difficulty walking long distances -- wouldn't be any easier if I kept a chip on my shoulder. My parents and friends, and later my own conscience, have helped me to resist the festering anger tinged with self-pity that is so often the engine behind personal-injury litigation.

True, I have a very slight case of CP -- one so mild, in fact, that others often don't notice a problem at all. But most of the people I've met who face more daunting challenges are able to get a lot out of life, applying to their broader difficulties the same approach that I myself use: rejoicing in one's portion, letting go of the disappointments and embracing the blessings.

I can't blame Mr. Edwards for taking the opposite tack when he was a lawyer in private practice, seeking in each case to argue that someone else was at fault for whatever misfortune befell his clients. But I do blame him for fighting tort reform tooth and nail in the Senate. As a senator he is supposed to represent the public interest, not just the interests of plaintiffs and lawyers. His defense of the status quo implies that he is comfortable with the increasingly tendentious efforts of the trial bar to ascribe responsibility for nature's misfortunes to the deepest pockets around.

It might turn out that Mr. Edwards's CP clients were all among the few whose conditions really did result from malpractice. But I know his philosophical approach is mistaken. His long years of blaming other people for things gone wrong make poor training for the presidency. If he ever finds his way to the Oval Office, I fear the sign on his desk may read "the buck stops elsewhere."

Mr. Robinson, a 2004 Rhodes scholar, is an intern on the Journal's editorial page.

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