Edwards' trial lawyer past raises red flags for doctors

Washington Democratic presidential candidate John Kerry's choice of Sen. John Edwards (D, N.C.) as his running mate has generated a commotion in the physician community. The reason: Edwards' reputation as a trial lawyer is built largely on medical malpractice lawsuits.

The reaction has ranged from aghast to unfazed and everything in between.

"Doctors are going to panic when they think about a trial lawyer who has sued a doctor and won being near the White House," said Kerry supporter Julie Graves Moy, MD, a family physician in Austin, Texas.

One doctor reader wrote AMNews, "It is hard for me to imagine someone who could turn back the clock and oppose [doctors'] fight for tort reform more than John Edwards."

It is not surprising that many physicians are wary about Edwards, who has a history of successfully trying more than 60 medical malpractice cases, winning in excess of $1 million in more than half of those.

While the American Medical Association does not take a position on elections, the organization has marked liability reform as a top legislative priority.

The AMA believes that liability reform, including a cap on noneconomic damages, "will provide patients with greater access to care by stabilizing skyrocketing medical liability insurance premiums," according to a statement. But physicians should actively support the candidate of their choice, the statement continues.

The perception

The liability crisis has become a personal issue for many physicians, some of whom directly blame personal injury lawyers. In many ways, Edwards personifies that sentiment.

"I think he is intelligent, aggressive, self-serving and out to make money," said Allen Huffman Jr., MD, a North Carolina obstetrician-gynecologist sued by Edwards in 1989. "I thought that before he began running as the 'populist candidate.' "

Dr. Huffman, who generally votes Republican, is not planning to vote for the Kerry-Edwards ticket. But he also considers caps on noneconomic damages only part of the solution to the current liability crisis.

Some detractors question the science Edwards used against doctors.

Half of his medical malpractice suits cited obstetric negligence in cases in which babies were born with brain damage or cerebral palsy. The science now shows that delivering physicians likely have little control over the incidence of these injuries, said Richard S. Wade, a medical defense attorney in Columbia, Mo., whose wife is an orthopedic surgeon.

Democratic physicians seem to be taking a big-picture view on the liability reform issue.

"This election is far too important to allow any considerations, such as feelings towards malpractice lawyers, to get in the way," said Michigan internist Ronald Chusid, DO, a founding member of Doctors and Nurses for Kerry.

Many Democratic physicians are still willing to support Kerry and Edwards based on the ticket's whole health platform, rather than focusing on one issue. Dr. Chusid thinks the vice presidential candidate's trial lawyer past will prove an asset.

"Edwards has the potential of both coming up with a fair solution and selling it to the trial lawyers, reminiscent of how 'only Nixon could go to China,' " he said.

The platform

While he has followed the Democratic party line against capping noneconomic damage awards, Edwards has talked about ways to help physicians overburdened by liability insurance premiums.

"We need a real solution that frees doctors from crippling insurance costs -- without preventing the most badly injured victims from receiving the compensation they deserve," Edwards wrote in a Washington Post opinion piece in May of last year.

"That real solution has three elements," he continued. "Most important, we need to crack down on price gouging by the industry. We also need aggressive action against frivolous lawsuits that don't belong in court -- not against the serious lawsuits that bring help to the most badly injured. And finally, we need to reduce the number of medical errors, many made by a very small fraction of the medical profession."

Edwards has proposed several measures, including requiring trial lawyers to consult expert witnesses in malpractice cases before a suit is filed and a three-strikes-and-you're-out rule for lawyers who repeatedly file frivolous lawsuits.

Those proposals seem to have been pulled directly from Edwards' experiences as a trial lawyer in which he vetted malpractice cases before accepting them, a tactic some experts think was critical to his winning record.

But that care in avoiding frivolous cases could be seen as a double-edged sword politically.

"It's also a very lucrative area of law because you have an extremely sympathetic plaintiff," said Paul J. Martinek, publisher and editor-in-chief of Lawyers Weekly USA, who recently compiled and analyzed a list of Edwards' cases. "If you're going to win, you're almost by necessity going to win big, because what juror is not going to sympathize with a brain-damaged child?"

In contrast, taking on more borderline cases would have risked investing time and money potentially without a payoff.

The politics

The liability crisis is continuing to grow as a political issue, not just for physicians but also for more and more voters who are concerned about the rising cost of health care.

"People do believe that malpractice is a factor; they just don't believe it is the top factor," said Robert Blendon, ScD, professor of health policy and management at the Harvard School of Public Health.

The reaction to Edwards' selection wasn't exactly what Martinek expected. "I was surprised it was so heavily skewed toward medical malpractice because he has presented himself as more of a well-rounded personal injury lawyer, and he really hasn't emphasized the med-mal specialty," he said.

The Bush campaign is likely to try to use Edwards' past against him. In a recent speech, Vice President Dick Cheney alluded to the candidate's close ties to trial lawyers. Edwards has raised more than $11 million from lawyers.

But it's unlikely the Bush campaign will have much success in using Edwards' past to paint the team as anti-physician, said Harvard's Dr. Blendon.

In his run for the Senate, Edwards was very effective in deflecting similar criticism. While serving, he has worked hard toward passage of a patients' bill of rights, a record he can point to in making the case he wants to see reforms to the system.

But for some physicians, where Edwards will be going is more important than where he has been.

"Frankly, I don't think John Edwards in the White House is going to increase my risk of getting sued," Dr. Moy said.