Thursday, August 07, 2003
Copyright © Las Vegas Review-Journal

EDITORIAL: Lawsuit lockdown

Local doctors make another argument for drastic tort reform

Seeking protection from a raft of frivolous, financially catastrophic lawsuits, a significant number of Las Vegas doctors may start asking their patients to sign arbitration agreements prior to treatment. The patient would surrender his right to a jury trial following any allegation of malpractice; a neutral arbiter would settle the dispute and assign damages.

This move may smack of desperation -- it's unclear whether courts will even consider such contracts binding. But the mere discussion of such a mechanism shows how perverse the impacts of tort law on the practice of medicine have become.

The health care industry isn't alone. The entire system of tort law has degenerated from the application of a simple principle -- purveyors of faulty products should make whole those parties who are injured when those goods are used as intended -- into a "lawsuit lottery," where fast-food companies may be considered liable if their patrons eat too much, tire manufacturers "owe" millions to motorists who experience blowouts while driving recklessly, and firearms makers face crippling lawsuits when their reliable and well-designed products are used illegally by criminals.

No one's responsible for private behavior so long as somebody else has deep pockets.

The breakdown of tort law was well described by West Virginia appellate Justice Richard Neely in his 1989 book "The Product Liability Mess": "As a state court judge, much of my time is devoted to designing elaborate new ways to make business pay for everyone else's bad luck."

In his new book "The Rule of Lawyers," Manhattan Institute legal scholar Walter Olson says the plaintiff's bar is well on the way to becoming an independent fourth branch of government, with the power to mete out "justice" while facing few of the checks and balances that tend to restrain lawmakers, mayors, governors, judges and officers of the criminal justice system.

An exaggeration? Consider the implications of this remark from an article in the legal journal Class Action Reports: "The greatest barrier to courtroom justice is the marketplace reality that most victims are not even aware that they have been injured." In this perverse view of individual conduct, "victims" who don't know they're "injured" merely need to be recruited and informed of the pot of gold that awaits them at the end of the "courtroom justice" rainbow -- and who cares what law-abiding companies are bankrupted or driven offshore in the process?

The Council on Competitiveness places the cost of litigation in the United States at $330 billion a year. But even that deadweight loss understates the price we pay in medications that aren't brought to market and other innovative goods and services never developed because the spirit of entrepreneurship is sapped and overwhelmed by the fear of being sued.

Tort reform -- requiring losers to pay all costs incurred in civil litigation -- is essential.

Such moves will require courage on the part of legislators and judges, many of whom are themselves attorneys. But individual responsibility must be restored; inventing and marketing legitimate products should not resemble a tour through a chamber of horrors.