A winning way that hurt America

If the Democratic primaries have a theme so far, it is "perception is reality". Howard Dean will do better if he stops baying at the moon - it looks bad. Wesley Clark is telegenic. John Kerry of Massachusetts and John Edwards of North Carolina are expected to do well because they too seem like reasonable fellows - like winners, in other words.

Senator Edwards especially has become a favourite for both the domestic press and the foreign media, the latter of which underestimate their own influence. Political consultants, too, like his "two Americas" campaign. They like that he comes from the South, a "winning" place. They like his hair. And they see something of Abraham Lincoln in him - a boy from a humble place who rose through the law to make things right.

Perception, however, is not reality. Records do matter. Mr Edwards's record, especially, offers an example of why a candidate's career needs review. He spent most of his career as a plaintiff's lawyer. Success came first in the 1980s, when he sued St Joseph's, a hospital in Asheville, North Carolina, after a doctor unintentionally gave a patient a dangerous amount of a drug to combat alcoholism. The man suffered serious neurological damage. Next came a suit when a doctor failed to deliver a breech baby by caesarean section. The baby was diagnosed with cerebral palsy. Then there was a father killed by a careening lorry.

These are compelling stories of people who deserve help and/or compensation and Mr Edwards has made them more compelling by laying them out in a memoir, Four Trials. This campaign book also includes recollections of his parents' struggles - his father was a mill worker - and an account of the tragic car accident that killed his teenage son.

But Mr Edwards moves beyond simple compensation and compassion to argue that litigation is the most powerful way to bring about social justice. "Trials are about credibility," Mr Edwards sums up, and "juries seek the truth." "Juries are democracies in action," he has also said.

When Mr Edwards began collecting multi-million-dollar awards for the plaintiffs described here, his sort of victory was relatively rare. Most people had a close-to-actuarial sense of what sort of damages they could and should collect. That, however, shifted as Mr Edwards's righteous generation set its precedents. Instead of merely expecting help, plaintiffs began to demand and get sufficient cash to move them up the social ladder. These lottery-like payments encouraged in people an apocalyptic sense of their own importance. Accidents became economic opportunities.

More important, however, were the general social consequences. Millions of dollars for individual clients meant millions fewer to spend on the rest, many also sick or wronged. Giant awards undermined doctor confidence and the culture of medicine. Fear of obstetrics-related litigation made the US one of the world capitals of caesarean section, (to the intense disapproval of natural birth advocates and the World Health Organisation). Suits involving birth problems have driven insurance premiums so high that in some areas doctors are quitting obstetrics.

The pollster Harris Interactive reports that three-quarters of US doctors feel the threat of litigation compromises their work. Defensive medicine has become one of the principal drivers of cost increases in the one area in which the US is desperate to control costs - healthcare. General recognition is setting in: the legal reform group that commissioned the doctor poll Common Good has found supporters from George McGovern to Newt Gingrich. Malpractice costs are making healthcare reform difficult - including publicly provided healthcare for children, an Edwards campaign plank.

But what became of North Carolina? Last week I phoned Mission Hospitals, the successor to St Joseph's, which Mr Edwards sued so long ago, and spoke with William Brannan, the chief medical officer. It turned out that he was an obstetrician who had recently quit delivering babies because of prohibitive insurance premiums. At least one town in North Carolina had lost its only obstetrician, he said. Dr Brannan estimated that one quarter to one third of tests ordered at Mission overall were ordered out of fear of litigation. In short, you can argue that the Edwards-style courtroom is about creating, not ending, a "two Americas" problem. And about doing fine in the process.

Mr Edwards is today worth multiple millions and he is not even a very successful tort lawyer; some tobacco litigants get hundreds of millions. These courtroom revolutionaries are all a long way from Honest Abe, whose maxim was "discourage litigation". And to install Mr Edwards as, say, vice-president - a job mentioned for those who do well in places such as Iowa - would be to confer a sort of dignity on the senator's speciality that it does not deserve.

The point here is not to pick on Mr Edwards. It is that life is about more than adrenalin, even in an election year, and we probably do not want to decide to "like" candidates without examining the consequences of their policies. For some of those consequences are not acceptable, even to fellow Democrats. The commentators can do what they like but if the party forgets this in its desperation, it risks losing the White House, and by popular vote this time. That may not be the perception, but it is the reality.

© Copyright 2004 Financial Times

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