The Unacknowledged Costs of Lawyers

In Shakespeare’s King Henry VI (part 2) Dick the Butcher declares, “Let’s kill all the lawyers,” a statement which, in the context of the play, is actually one in support of lawyers, but if Shakespeare were living today, I’m not so certain that Dick and Jack Cade wouldn’t be supporting the lawyers [since Cade’s purpose was to undermine the rule of law], given not only the damage they’ve wreaked on U.S. society with the excesses of tort claims, but also the unseen and unacknowledged damages that have been incurred at almost all levels of society as a result of the efforts of businesses, governmental entities, and other organizations to avoid litigation.

Trial lawyers continue to insist that medical tort claims lawsuits are necessary to remove bad doctors, while ignoring the facts that very few such claims ever lead to a doctor being removed from practice and that the abundance of medical malpractice lawsuits has increased the cost of malpractice insurance astronomically in some specialties, even for those doctors who’ve never had a claim against them. An associated problem is the fact that doctors often ask for more diagnostic tests than medically necessary, just so that they can claim that they haven’t overlooked any possibility and to bolster themselves against malpractice claims. As a result, healthcare costs increase. Everyone focuses on the issue of costs to the victims of bad medicine, but there’s been no real consideration of the costs to the rest of the profession or the increase in costs for healthcare insurance, and for those purchasing it.

While this is the most public example of the costs of attorneys, it’s far from the only one.

Post-tenure review is now becoming more and more widespread at universities, despite the fact that a very small percentage of tenured faculty actually abuse their position or fail to meet their obligations, yet the post-tenure review documentation required at regular intervals takes goodly amount of time to prepare. It also takes a fair amount of time for the committees to review it, and yet very few faculty members are found wanting and dismissed. So why can’t universities employ a process asking suspect faculty to submit such paperwork, rather than spending all the time and effort to review all tenured faculty? Because the lawyers fear lawsuits alleging discrimination, and the post-tenure review process insulates the university from the claim of discrimination. But a faculty member dismissed by either process can still protest and file a lawsuit. In effect, post-tenure review does little to weed out tenured faculty who aren’t cutting it. What it does do is increase the paperwork burden on the rest of the tenured faculty, because the documentation required is extensive, while making the job of a few university lawyers and administrators easier.

Another area where lawyers engage in costly litigation is in “patent trolling,” where lawyers essentially practice a form of legal shakedown by making “patent infringement” claims on productive companies, often on the flimsiest of cases. All too often, the companies being sued simple settle, because the time and effort to fight such claims would be even greater than the settlement costs. A recent study pegged the unnecessary costs of patent trolling at nearly $30 billion annually in direct costs and more than $80 billion in indirect costs.

The same sort of process occurs in business, in everything from warranties, privacy policies, personnel policies, you name it. Legal documentation is expanding everywhere. Why? Because organizations are trying to minimize the chances of costly litigation. Why do they need to go to such extremes? Because other lawyers are looking to fatten their finances through litigation or the threat of litigation. This is incredibly obvious, yet, with the exception of malpractice claims, I’ve never seen even an estimate of the national cost added to business, education, and life in general by litigation and the threat of litigation. And, of course, Congress refused even to consider limiting malpractice tort claims under the Affordable Care Act, possibly because trial lawyers contribute considerable sums to congressional campaigns.

I’m not against lawyers, and there are more than a few in my family, but I’m certainly against litigation and legal processes that don’t improve matters and whose costs continue to spiral.

3 thoughts on “The Unacknowledged Costs of Lawyers”

  1. R. Hamilton says:

    Even with a sick computer, diagnosis is something that many of those otherwise quite competent still struggle with.

    Pilots have checklists. There are and for some time have been “expert systems” that could assist in assuring both consistency and _reasonable_ thoroughness. So long as the understanding was that medical personnel retained final judgement, and could explore additional options beyond what the expert system recommended, but should only do less than it recommended with justification, and assuming the expert systems were updated with statistics derived from feedback (as well as new diagnoses, procedures, etc), the result should be reduced human error from either exhausted or incompetent doctors; and therefore ultimately reduced malpractice insurance costs.

    Yet there has been astonishingly little done in that regard. Few hospitals seem to have much more of such precautions in place than mere hand washing signs. Is it the arts vs sciences egotism getting in the way? (it’s both) Or something else?

    Commercial pilots also spend time in simulators, training for emergencies they hope never to encounter in the real world. Medical simulators exist, to some degree. Enterprise data centers probably have “integration” systems (fed with actual data, but with their output and results isolated and only acted on in simulation (and examined for anomalies). Simulators exist for ships and probably nuclear reactors, too; and the military certainly uses non-lethal approximations in training. Why aren’t they used for training wherever mistakes could be costly in blood or treasure?

    This goes beyond medical care. If well-designed rigorous procedures were applied whenever flexibility is not called for, a lot of expensive errors could be avoided.

  2. invah says:

    >Trial lawyers continue to insist that medical tort claims lawsuits are necessary to remove bad doctors

    State medical boards “remove” bad doctors. Criminal proceedings that legally establish criminal act or acts on the part of the doctor ‘remove’ bad doctors…if they go to jail or prison, or if the judge specifically so establishes in the sentencing hearing. A civil remedy does not “remove bad doctors”.

    The closest a lawyer comes to ‘removing bad doctors’ is if the results of the lawsuit and/or lawsuits make the physician effectively uninsurable.

    Medical claims actually rarely go to trial, something which is accurate for the court system in general. Our legal system, including civil and criminal, is driven by settlement. If everyone exercised their right to trial, our legal system would come to a grinding halt.

    Most malpractice lawyers take a client’s case on contingency, and gather medical records and other information, often for years, before even drafting a settlement package for review by the physician’s insurance company. Any malpractice cases that are filed are usually settled before a case goes to trial. The settlement priority exists for both the plaintiff and defense attorney, particularly and especially for churn-and-burn plaintiff’s firms. Insurance defense attorneys are just trying to get their billable hours in without sticking their necks on the line.

    Sure there are some ‘hot shot’ litigators out to prove themselves, but the grinding reality of the legal field is in its inertia.

    >Why? Because organizations are trying to minimize the chances of costly litigation

    You’d be surprised how many things like this are HR-initiated. I’ve met human resources representatives who honestly believed that they are legally required to respond to every job applicant.

    Much of the morass is a combination of bureaucracy stacking – business/organization + human resources + attorneys + insurance – and the implacable human desire to ‘contribute’ and be seen/recognized for doing so.

    Every attorney I’ve ever met is absolutely convinced they are representing the best interests of their clients or upholding the system of law or working to support themselves and family. (I’m not saying there aren’t outliers but most believe they are good people doing good work.) Same goes for doctors. Same goes for HR managers and CEOs and boards of directors.

    There is a remarkable level of ego, bureaucratic inertia, insularity, individual interest in each component, and at every level.

    As flawed as our system may be: A human system compromised of humans will have human flaws. A non-human system will have other flaws. Systems have flaws. What successful systems have is the ability to self-correct.

    Additionally, I’ve been to countries without a ‘litigation culture’…and holy sh*t can you tell. What we also have in the U.S. is unchecked insurance culture.

  3. Wine Guy says:

    I don’t know about lawyers or pilots, but as an MD, I spend between 50 and 75 hours a year in courses that help me maintain and expand my skills. For example, I shelled out $1500 for an ultrasound-assisted procedures course and another $1200 for an advanced airway management course in FY2015. That’s just the course: it doesn’t count travel, time lost on the job, time lost with family, etc. That’s around $5000 out of pocket (and yes, $5k is a lot of money even for a doctor) for 24 hours of Continuing Medical Education. Online courses are cheaper, yes, but the hands-on skills for Emergency Medicine are absolutely critical.

    As for checklists: algorithm-based medicine has its place, but non-physicians think that because the algorithm steps can be easily measured (i.e. you did them or you didn’t) that they should be slavish followed for ‘quality assessment’ and ‘data mining’ purposes…. even when a step, or two – or more – can be clearly detrimental to care. The algorithms provide a good starting point and ensure nothing relating to the algorithm is missed… and rarely do patients fall neatly into algorithms. It is a glorious hour when they do… mostly because it is so infrequent.

    Those who like the ‘quality assessment’ and ‘data mining’ = administrators who can point to them and say “See how well we’re doing!?” and insurance companies who can point at them and say “you didn’t do this part! Claim denied!”

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