John Edwards on Trial

Very good article in the NYTimes on the larger implications of John Edwards’s career as a trial attorney. In Edwards’s first big case he artfully channeled the words of an unborn baby girl to convince the jurors that an obstetrician’s decision not to perform a Caesarean section resulted in the girl being born with cerebral palsy. The smoking gun in the case, according to Edwards, was the record from the fetal hearbeart monitor. As a result of this and other similar cases doctors “have responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate Caesarean.”

[But] studies have found that the electronic fetal monitors now widely used during delivery often incorrectly signal fetal distress, prompting many needless Caesarean deliveries, which carry the risks of major surgery…[Moreover] the vast majority of children who developed cerebral palsy were damaged long before labor…[and] a series of randomized trials challenged the notion that faster delivery could prevent cerebral palsy. Reviewing data from nine countries, two researchers reported last year that the rate of the disorder had remained stable despite a fivefold increase in Caesarean deliveries.

Edwards can’t be blamed for being a good attorney, even if the science rejects his claims, but his front of caring for the victims does not stand scrutiny. Edwards, along with his fellow attorneys in the North Carolina plaintiff’s bar, argued against a compensation plan that would insure everyone with a child born with cerebral palsy.

My take: A tort system should deter and insure. But our tort system does neither well, especially when it comes to product liability and medical malpractice cases. Winning claims often have little connection with true negligence so the system does not deter and instead of insurance the tort system offers those with injuries a lottery ticket, handing large payouts to some and nothing to others with equal difficulties. To top it off, the system is expensive as more dollars are spent on litigation than flow to plaintiffs.