Law: The Malpractice Blues

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With the sort of single voice that is rarely heard in their contentious profession, representatives of the nation's lawyers last week put themselves on a collision course with the nation's doctors. The issue is medical malpractice, and that is about all that the combatants agree on. Convinced of their diagnosis that crippling malpractice insurance rates have been caused by a malignant surge of lawsuits, physicians prescribe legislative relief, and lots of it. Lawyers hold to their brief that doctors, like manufacturers or architects, should be liable for mistakes. Making its position unequivocally clear, the American Bar Association voted unanimously at its midyear meeting in Baltimore last week to oppose proposals by the American Medical Association that would change state laws to limit malpractice claims and awards.

"The state legislatures have to decide whether they want a special- interest court system for physicians," says Talbot D'Alemberte, dean of Florida State University Law School, who chaired the A.B.A. committee that recommended rejection of the A.M.A. proposals. "It's now a legislative battle." Indeed, the politics of protest are already under way. In Massachusetts last week, many obstetricians were refusing new patients in a fight against rising insurance rates. In Georgia, where insurers have requested rate increases averaging 38%, 1,500 doctors marched on Atlanta two weeks ago to shout support for a legislative effort to restrain malpractice lawsuits. Some just say it with a bumper sticker: LET THE LAWYERS DELIVER THE BABIES.

The legal reforms that the doctors want, and the lawyers oppose, are technical but important. For example, the A.M.A. proposes eliminating punitive damages, and seeks a cap on "noneconomic" damages awarded for pain and suffering or mental anguish, which it says account for 80% of the dollars paid over the $100,000 level. It also wants a victim's compensation from such sources as medical or unemployment insurance deducted from court awards. Most bitingly, the doctors have called for a slidingscale limit on "contingency fee" arrangements, whereby lawyers take on a case for a sizable share (often one-third) of any settlement or court award. Doctors grumble that such fees encourage lawyers to press for outrageous judgments as a way of fattening their own take. But without contingency agreements, lawyers counter, only the wealthy could bring suit.

How such legal changes might affect malpractice victims is illustrated by two cases in California. David Berg, once an enthusiastic athlete and honors student at the University of South Dakota, now lies in a vegetative state in a California hospital bed. In 1980, during minor elective surgery, he suffered severe brain damage; his lawyer blames ananesthesiologist's error. The hospital and doctors settled out of court for monthly payments that could top $14 million if Berg survives for more than 20 years. Berg's attorney, Richard Aldrich, who took the case on a contingency basis, will get $5.3 million of that.