Like sands through the hourglass ....

By The West Virginia Record | Nov 1, 2006



There are two daytime dramas unfolding in West Virginia this fall.

One is the height to which the football Mountaineers are destined -– a top-tier bowl, maybe a shot at a national title? The other story line: to what depth will trial lawyers sink in the ongoing saga that is Putnam General Hospital.

As far as the latter goes, it's hardly the sort of legal machination that could be hailed as bold or beautiful. The latest news in this case has a Putnam physician claiming that he was approached by patients who themselves claimed to have been approached and solicited by a Charleston law firm. The offer: for $10,000, be willing to become a plaintiff against Putnam and one of its ex-physicians.

Talk about "make them an offer they can't refuse" mentality. In fact, it's a temptation that some may have found hard to resist. At present, more than 100 lawsuits have been filed against Putnam General's parent company, Hospital Corporation of America, demanding billions in damages for alleged medical malpractice. Specifically, the suits claim wrongdoing on the part of Dr. John Anderson King, an orthopedic surgeon who was on staff at Putnam General for eight months between 2002 and 2003, before the hospital suspended his privileges. Meanwhile, the hospital itself faces an uncertain fate -– something of an irony in a community that's tried to market itself to the outside world as "Advantage Valley."

All of which raises two unsettling questions, the first having to do with lawyers' ethics. Soliciting individuals to become plaintiffs in a case, as was alleged in this instance in a deposition given recently by Dr. Rick Houdersheldt, is illegal. As for offering cash to become a plaintiff or part of a lawsuit: at worst, it's illegal; at best, it's emblematic of money-obsessed attorneys who divide their time between chasing ambulances and disbursing phony neck braces.

The other concern in this matter: "jackpot justice" and its effect on our country's well-being.

One study has found that America's trial lawyers generate about $46 billion annually, with revenue growing more than 11 percent a year. That's nearly triple the rate of growth in the nation's domestic product. A separate report by the Manhattan Institute finds that medical malpractice liability now accounts for one-tenth of America's "tort tax," which each year costs a family of four more than $3,300.

America's trial lawyers recognize that –- and know that their practices don't hold up well under cross-examination. Maybe that's why they've been busy polishing their image. Not long ago, the American Trial Lawyers Association voted to change its name to the American Association for Justice. (The Washington Post sarcastically noted that the runner-up choice was "Association for Apple Pie, Motherhood, and the American Way.")

The Shakespeare question notwithstanding, what's in a name does matter. Across America, trial lawyers have wreaked havoc on state and local economies.

Take California, for example. Trial lawyers here have launched securities class-action lawsuits against Silicon Valley, have discouraged job-growth by threatening employment lawsuits, and have suppressed the state's housing sector with frivolous construction-defect lawsuits.

Perhaps California, with its world-class economy, can afford the hassle. Trying telling that to West Virginia, which was just ranked 49th by among "best states for business."

America's legal system, used properly, can produce marvelous resorts. But when used improperly by those more interested in cash equities than social inequities, it becomes an impediment to real progress.

Putnam County, which may be looking with a future without local doctors or emergency care, is proof of this.

Let's hope this isn't the nation's fate: "jackpot"-driven trial lawyers free to treat hospitals as their latest slot machine.

Whalen is a research fellow at The Hoover Institution at Stanford University in Stanford, Calif.

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