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Round the World

From our CorrespondentsUnited States

LAWYERS’ CONTINGENCY FEES UNDER FIRE AGAIN

IN The Crucible, Arthur Miller’s play about the Salem witch trialsin 1692, a lovable old character named Giles Corey is alwaysinvolved in litigation. If he’d been alive today he’d probably besuing his doctor. As readers of this column will need no reminding,the number of claims and of successful malpractice suits and the sizeof the awards have been increasing alarmingly. The average out-of-court settlement is over$120 000, and awards for cases that go tocourt now average close to$1 million. Malpractice insurancepremiums have gone up accordingly. Here in Massachusetts athoracic surgeon, obstetrician, or anaesthesiologist can expect topay over$82 000 a year, and the situation is worse for some otherspecialists and in some other States. Many doctors are retiringearlier than they had planned, and obstetricians are limiting theirpractice to gynaecology. Doctors can no longer pass on the increasedcosts to patients because Medicare has frozen payments and, at leastin some States, it is illegal for doctors to charge more than theyreceive from Medicare and Blue Shield.But even these astronomical premiums do not give complete

protection. A well-respected surgeon in our area, in a case wheremany felt he had done no wrong, was found negligent by a jury to thetune of$3 million-plus$600 000 interest; and his insurance wouldpay only$1 million. It is hard to see where he will find the balance.Not surprisingly, many doctors blame hungry lawyers for their

plight. One sees advertisements by lawyers in newspapers and trainsurging people to call the lawyer if there is a chance that they havebeen hurt by a medical procedure (we have over 650 000 lawyers,including judges, while the United Kingdom, with a quarter of ourpopulation, gets by with some 25 000). Under the contingency feesystem, the patient pays nothing if his case is lost: but if it is won thelawyer takes 30-50% of the award-which encourages him to pressfor a large sum. Overall, only about 30% of the money collected inpremiums goes to the plaintiffs.Some States have legislation, enacted or proposed, to limit the

percentage contingency fee and to cap the awards, especially thosefor pain and suffering. In return they are asking for more control ofmedical practice and for doctors to police their own professionbetter-a reasonable suggestion since (at least in California) 0 - 5% ofthe doctors account for 30% of the malpractice suits. But this iseasier said than done. Dolin] tells of a small hospital in Oregon thatexpelled a surgeon for what sound like gross errors, only to besuccessfully sued by the surgeon for well over$2 million forconspiracy in restraint of trade, thus bankrupting the hospital.But it is not only doctors who are caught in the crunch. After some

scandals involving allegations of child abuse in a few day-carecentres, all the centres have trouble in getting liability insurance.The huge Johns Manville Corporation, which manufacturesinsulating materials, has declared bankruptcy because it has so

many suits claiming that it was responsible for causing asbestosis.2Because of the risk of product-liability suits, only two companies arenow making anaesthesia equipment. Many towns, and even someStates, can no longer afford liability insurance. The NationalWeather Service was successfully sued for over$2 million because itfailed to predict a storm in which some fishermen were drowned.Some of us see irony in the report that the Los Angeles BarAssociation could not renew its liability insurance and had to go toLloyds of London to get a tenth of its previous protection at doublethe cost.In The Crucible, Giles Corey was put to the question by having

heavy weights put on his chest. He refused to answer "aye" or"nay" and was crushed to death. Unless something is done aboutthe liability system in the United States, our society risks beingcrushed to death under the burden of litigation.

1 Dolin LC Antitrust law versus peer review. N Engl J Med 1985; 313: 1156-57.2. Round the World. Asbestos settlement? Lancet 1985; ii: 881.

NOTES FOR LANCET AUTHORS

Prospective authors are referred to the statement UniformRequirements for Manuscripts Submitted to Biomedical

Journals prepared by an international committee of medicaljournal editors, of which The Lancet is a member (see Br Med_71982; 284: 1766-70), to supplementary advice published in TheLancet of Sept 14, 1985 (p 595), and to these notes:

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