NBC-TV Today Show

MATT LAUER, Today Show co-host: The system used to decide many of those malpractice cases seems not to be working for anyone. As NBC’s Carl Quintanilla reports, it’s a problem with no easy answers.

CARL QUINTANILLA reporting: When he was two years old, young Steven Olsen fell down in the California mountains, a stick lodged in his cheek. Doctors patched him up and told his parents he didn’t need the $800 CAT scan.

Ms. KATHY OLSEN (Steven Olsen’s Mother): Nobody denies that if he would have had it in the first few days, he would have been OK today.

QUINTANILLA: The coma that eventually followed has left him blind and brain damaged. His parents sued, and they won.

Ms. OLSEN: For $800’s worth of testing, they basically ruined his life and ours.

QUINTANILLA: Their story just one part of a national crisis. Five billion dollars in malpractice payments every year, some legitimate, some frivolous, but both pushing doctors to the picket line.

Unidentified Woman: It’s gotten to the point where we can’t function. We–we work in fear.

QUINTANILLA: Fear of being sued, fear of their patients and of insurance fees that, in the case of Dr. Jana Forsthoefel, may force her to leave her practice altogether.

Dr. JANA FORSTHOEFEL (OB/Gyn): I’m going to make decisions that are going to be protective of me and–and that’s terrible in a–in a medicine where I should be holding my patient first, but if I’m not here to provide care at all that–then my patient has no medical care.

QUINTANILLA: There are now some ideas on how to fix the problem, like doing away with juries altogether and appointing expert judges who some say would be less emotional and more informed.

Senator Mike Enzi of Wyoming proposed such a bill just last week.

Senator MICHAEL ENZI: The advantage of having a judge who’s knowledgeable in the areas and who’s comparing notes with other people for similar situations is that there will be a lot more uniformity to it.

QUINTANILLA: Many states put a cap on the amounts juries can award for pain and suffering, but that’s controversial. Judy Davis once served on a jury that tried to give $7 million. The cap wouldn’t let them.

Ms. JUDY DAVIS: In this case, we were very certain that this one was deserving. And so we were appalled. We could not believe it.

QUINTANILLA: That family none other than Steven Olsen’s whose pain and suffering works out to $4,000 a year.

Ms. DAVIS: It–it’s hard. I mean, how do you possibly compensate somebody for what that child’s gone through and what that family’s gone through and he’s going to go through the rest of his life?

QUINTANILLA: Tough questions in a system of doctors, patients and families where no one seems to be winning. For TODAY, Carl Quintanilla, NBC News, San Diego.

MATT LAUER, co-host: Philip Howard is the chairman of Common Good. That’s a bipartisan initiative to reform the legal system. Jamie Court is executive director of the Foundation for Taxpayers and Consumers. Gentlemen, good morning to both of you.

Mr. PHILIP HOWARD (Executive Director, Common Good): Morning, Matt.

LAUER: Phil–Philip…

Mr. JAMIE COURT (The Foundation For Taxpayers And Consumers): Morning.

LAUER: ..let me start with you. You’re not saying jurors are bad people. You’re saying they’re well-intentioned people trying to do the right thing…

Mr. HOWARD: Right.

LAUER: …but that they may not have the foundation of knowledge needed to determine standard of care in cases like this.

Mr. HOWARD: Right, and they’re being asked to do the wrong thing. They’re supposed to decide disputed facts, like who left the sponge in the–you know, in after the operation. They’re not supposed to decide standards of medical care. They don’t know what standards of medical care are. So what’s happened today is in every single case you get a different result, and the study shows that the results are random. Doctors who did nothing wrong are held liable; patient who are injured because of a mistake get nothing.

LAUER: But if you have expert judges, which is–which is what you’d like to see, what’s to say that after a few years in that position they don’t develop biases and prejudices that flavor their decisions on individual cases?

Mr. HOWARD: Well, the system’s only as good as the people in it. What they would have is consistency and rulings. And if the rulings are bad, there’s always an appeal from a judge, you can you go up to another appellate–appellate court. Judges will make mistakes as well. But what you’ll have is a consistency and a predictability so that the doctors won’t be paranoid. And, in general, the–when people do something wrong, they’ll be accountable, and when they do something right, they’ll be defended.

LAUER: Mr. Court, you don’t like the idea of expert judges. Why?

Mr. COURT: Well, he’s talking about rewriting a fundamental freedom guaranteed under the Bill of Rights. The right to trial by jury is the Seventh Amendment of the Constitution, and the Founders put it there because a jury of 12 ordinary people is best equipped to deal with separating truth from fiction and–and dealing with what’s reasonable since they’re independent. Juries, ordinary people aren’t infected by campaign contributions, they’re not affected by politics, they’re screened for bias, they don’t have professional pressures, and often they stand for the proposition that human life and pain and suffering is unique…

LAUER: But, Mr. Court, there are other…

Mr. COURT: …and they make their decision based on those facts.

LAUER: …situations where we do this. There are tax courts, there are vaccine courts, why not medical malpractice court?

Mr. COURT: For health care, it’s very important that we stand for this proposition that human life is priceless. And–and one of the reasons, you know, Mr. Howard is a partner in one of the biggest corporate defense firms in the country. They represent pharmaceutical companies, insurers, one of the biggest hospital chains. These companies would very much like to put a specific price, a predictable price, on human life. And in this medical system where HMOs are cutting corners everywhere, HMOs and these big corporate defendants need to know…

LAUER: Let me…

Mr. COURT: …they’ll face the eyes of jurors.

LAUER: …let me–Mr. Howard, let me ask you this. There’s a bit of irony here, in that we allow jurors to decide death penalty cases…

Mr. HOWARD: Right.

LAUER: …life and death decisions.

Mr. HOWARD: Right.

LAUER: If we trust them with that kind of a decision, why can’t we trust them with deciding standard of care?

Mr. HOWARD: Because there’s no consistency in the system, and the system is melting down. Doctors are quitting, health care…

LAUER: But…

Mr. HOWARD: …costs are out of control, and there’s no way to restore a balance in the system until you make the system of justice reliable. We’re not taking away the right to sue, we’re trying to make it reli–reliable for everyone. Mr. Court talks about the right to a jury trial as if it’s part of the Ten Commandments. The role of the jury was never to make legal standards. The role of the jury was to decide disputed facts. What’s happened today is that jurors are being asked to some–do something they don’t know how to do and don’t have the authority to do, which is to make the rulings on what a medical standard should be for the whole society.

LAUER: Mr. Court?

Mr. COURT: I just think–well, look. I mean, this is the Bill of Rights, it’s not the Ten Commandments, but the fact is that jurors are deciding whether a kid should have gotten an $800 CAT scan based on what medical experts tell them would have saved his sight and whether money was involved. And the fact is…

LAUER: Do you agree, Mr. Court, though that jurors tend to be very sympathetic to a patient?

Mr. COURT: Well–well–well, they certainly do and–but–but that also can go both ways.

LAUER: But is that always a good thing?

Mr. COURT: Well, if you look at malpractice verdicts–let’s look at the facts. The Bush administration’s own national practitioner databank found 10 years ago the average verdict was $400,000 in a medical malpractice verdict, last year it was $450,000 there. There’s a lot of myths floating around here, but the–the fact is there hasn’t been a big uptick in malpractice verdicts. What we’ve seen is malpractice insurance premiums go up. And what we need to do to fix that is regulate insurance company’s investment practices.

LAUER: Mr. Court is saying this is an insurance reform issue.

Mr. HOWARD: Right. Right.

LAUER: Your answer to that is?

Mr. HOWARD: Well, the GAO just came out with a report that says that the verdicts have tripled, and it’s mainly as a result in the increase in the verdicts by juries that–that health-care costs are skyrocketing for all Americans.

LAUER: Is there a middle ground here, Mr. Court? I mean, could juries decide the facts in the case and a judge decide the award?

Mr. COURT: Well, that is the–no, because I think juries have to determine what someone’s pain and suffering is worth, and the proposal you mentioned by Senator Enzi actually says that juries would have to have a certain cap on what they could award, so it doesn’t give them the power. And the fact is judges can always, and often do, knockdown awards that are unreasonable. But the–the medical insurance establishment needs to know that they will face the eyes of jurors when they put money ahead of good medicine or when they do something that’s unethical or unreasonable.

LAUER: OK, 10 seconds, Philip.

Mr. HOWARD: Senator Enzi’s bill does no such thing. It calls for tests for reliable courts to see how they’ll work. And we’ll never get out of this mess unless we come up with something new that’s reliable.

LAUER: Philip Howard and Jamie Court. Gentlemen, thank you very much. I appreciate it. Obviously, a lot more to talk about on this subject.