The New York Times has written one of the most unbalanced editiorials on medical malpractice reform that I’ve seen in a long time. Of course, it isn’t actually in the op/ed section of their paper where it belongs, but in the business section masquerading as business news. The entire article fawns over the malpractice attorneys they profile, and treats them like noble avengers working to save the public from the medical industry. And it treats the idea of reforming our deeply flawed medical malpractice system, which has dramatically driven up the cost of healthcare for all Americans to the point that many cannot afford insurance anymore, as outrageous.

What drives Mr. Smith now, he says, is what drove him then: a desire to seek justice for people who need it, whether criminal defendants too poor to hire lawyers or victims of medical lapses whose lives have been ruined and face huge bills for care. “You can make a significant contribution to someone’s life, someone who might be in desperate straits,” he explained. “That’s as rewarding as it gets for me. It’s not really, or mostly, about money.”

The Bush administration wants to make Mr. Smith’s profession far less financially rewarding. Medical malpractice lawyers are cast as the marquee villains in the administration’s war against what it regards as a litigious culture run amok. If there were a face in the bull’s-eye in this political battle, it would be Mr. Smith’s. He is not only a big-name medical malpractice lawyer, but he is also serving this year as the president of the Association of Trial Lawyers of America, the principal advocacy and lobbying group for trial lawyers. And within conservative circles and inside the White House, the term “trial lawyer” is an epithet.

See, the noble trial lawyers are being unfairly vilified by the evil Republicans for no good reason at all.

So how much does he earn? “Far less than you might expect,” Mr. Smith replied. His firm employs 11 lawyers - six working on medical malpractice cases, the remainder focusing on other personal-injury claims. It also employs four nurses as full-time researchers. Complex cases can require reams of expert testimony, years of investigation and hundreds of thousands of dollars to prepare. Medical malpractice lawsuits are custom work, focusing on one victim at a time, as opposed to large class actions against an entire industry, like the $246 billion tobacco settlement that trial lawyers helped 46 states win in 1998.

There are no hourly fees and no well-heeled corporate clients paying for expenses. Trial lawyers are the venture capitalists of the legal system, putting their money on the line and taking upfront risk. The occasional big paydays cover the daily expenses.

For all the costs, there is still plenty left over for Mr. Smith. He won’t say precisely, but he concedes that his yearly income is routinely in the high six figures, and seven figures in good years, which appear to have been plentiful recently. That would put him on a par with partners at leading corporate law firms.

Gee, if the malpractice system is reformed, how do you expect this guy to be able to feed his family on less than the $1,000,000 a year the guy is making now? That’s just totally unfair. By the way, it would take 6 (average) physicians combined to earn that.

Even plaintiffs who get to court often come away empty-handed. Nationally, defendants prevail in nearly 80 percent of the medical malpractice cases that go to trial. Many malpractice suits, legal analysts say, are filed by personal-injury lawyers, accustomed to handling simpler cases like those involving auto accidents, but not as experienced in medical negligence work. In a 2002 survey by the trial lawyers association, only 11 percent of its 60,000 members said medical malpractice was their primary area of practice; 40 percent replied that medical negligence cases were some part of their practice.

The fact that the defendants win 80% of the cases shows you that the system is broken, and that a huge percentage of medical malpractice cases that are filed are without merit. The New York Times refuses to believe this obvious fact, and makes the ridiculous claim that the reason most malpractice cases are lost by the plaintiffs is that many of them are being tried by personal injury lawyers, rather malpractice attorneys.

But, personal injury attorneys are trial attorneys who are used to dealing with expert medical witnesses just as medical malpractice attorneys are. If there’s any difference on average between the two groups as far as trying medical malpractice cases it’s marginal. Believe me, I’ve served as a medical expert witness numerous times, and my wife worked for many years defending physicians in these types of situations.

If you want more proof, just look at what happened in Texas when noneconomic damages were capped. The number of malpractice lawsuits went down by about 50%. Why? Because many of the suits that were being brought were nonmeritorious, and the “noble” plaintiff’s attorneys decided that it was no longer worthwhile for them to try them if there wasn’t a big enough jackpot on the line.

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