The little guy v. HMOs

No one has to tell me about lawyers. I went to law school and then decided that one more would just add to the problem. I avoid them so much that I rented out my house without a lease - not a wise move.

And that's the problem. Lawyers may be a scourge. But sometimes we need them in this imperfect world, especially when dealing with insurance companies and other large corporations. Sometimes the only thing worse than a lawyer is not to have the right to one. (And let's give a nod to those who labor for the unrepresented, through legal aid societies, public interest work, and the like.)

This is the main point of contention in the so-called patients' bill of rights now moving through Congress. Democrats want to preserve the right of Americans to sue their HMOs if necessary, while the administration wants to limit that right or eliminate it entirely. The president says the Democrats want to "put the interests of trial lawyers ahead of the interest of patients," and in a perfect world, I might agree with him.

But the way things are, a right you can't enforce is no right at all. If the medical system in this country is going to be run by large corporate entities for monetary gain, then ordinary people have got to be able to speak the language that these entities can understand.

The fact is, the doom and gloom over litigation and HMOs is way overblown. Texas enacted a patients' bill of rights with a right to sue, and there have been all of about 20 lawsuits since 1997. Only one of those cases has gone to trial - and it ended in a victory for the HMO. "Americans are not particularly litigation-happy" when it comes to HMOs, says Business Week magazine, which is no friend of trial lawyers.

The vast majority of disputes get resolved without litigation, and the reason is simple: There's not enough at stake. And when there is a lot at stake - well, that's when people really might need a lawyer. To cap damage awards, as the president and others want to do, is essentially to tell people they can't have their day in court. It is not cheap to challenge a big insurance company. The prospect of a big award is the only way a plaintiff can get a lawyer to front the costs.

More importantly, the threat of such awards serves to hold corporate misdoers in line. The right to sue helps ensure that most people won't have to.

The underlying issues here are pretty basic. We learned in junior high school, for example, that America was to be a nation of "laws not men." The Founders sought to brush aside the cobwebs of history, including the ties of tradition and place. America would invent itself anew, out of law. And guess what? A nation of law tends to be a nation of lawyers (unless we are talking about a Soviet-style arrangement in which the law is the government and that alone.)

The same is true of the market, which is the organizing principle of our economic life. In the market ideal, we are all isolated integers of self-seeking. Life is a social vacuum tube in which the only cohesion comes from contract - from deals. Well, in the church of contract lawyers are the clergy. You can't have one without the other, as the old Frank Sinatra song said.

This doesn't mean there aren't better ways to solve disputes, including disputes between patients and HMOs (and tort litigation generally). But if we are going to curb the ability of ordinary Americans to seek legal redress, then we should do so for the big boys, too. When Congress heeded the administration's call to repeal the estate tax, headlines announced that complexities in the new law would be a boon for lawyers. But the White House was silent. Somehow it's only when lawyers represent the little guy that they become a problem.

The most important issue here is democracy. Hardly a day passes in Washington without flattering invocations of the wisdom of the American people. Our entire political system is based on the principle that the people know best. So how come the minute we get into a jury room, we can't be trusted to make our own decisions? How come the politicians in Washington suddenly know best?

Democracy operates in the jury room no less than in the voting booth. If anything, it operates better, because there are no campaign contributions or tendentious TV ads to gum up the works. Sure, we've all read about jury awards that seem outrageous. But we don't hear the testimony that led the juries to make those awards (nor about how they generally are reduced on appeal).

Nor do we hear of the many cases in which the jury gives little or nothing. I sat on such a jury not long ago. It was a medical malpractice case, involving an obstetrician. After three days of testimony, we didn't give the plaintiff a penny. More than one juror commented that if they or their spouses had a child, they would call this obstetrician. We weren't the dupes that the advocates of "tort reform" make us out to be.

Besides, it just might be that large jury awards are expressing something that the leaders of this country need to hear - namely, the frustrations that ordinary people feel when confronted with global corporations and HMOs. With the political process clogged by special-interest money and the economy dominated by global firms, the jury box is the one place left in America in which the little guy can talk back. Is it really so surprising that he and she feel they'd better talk pretty loud?

Just maybe, our leaders in Washington should pay more attention to what voters are trying to say through the jury box, instead of trying to close down their last opportunity to say it.

Jonathan Rowe is a fellow at the Tomales Bay Institute and a former Monitor staff writer.