|In her 1957 novel Atlas Shrugged, Ayn Rand imagined a monstrous world in which the laws and the political regime, rather than protecting productive individuals, actually make it easy and legal for the rapacious and the envious to steal from them. Not surprisingly, many producers drop out of this society. In response, politicians warn the remaining producers not to leave their jobs, claiming that it is their duty to serve society.
This nightmare scenario is now breaking out across the United States. The latest victims are physicians, and the immediate cause of their plight is the skyrocketing cost of malpractice insurance. For example, a Philadelphia-area orthopedic surgeon found his annual rates jumping from $65,000 to $130,000 in two years. In Miami, general surgeons pay on average $174,000 a year for insurance, while obstetricians and gynecologists pay over $210,000. One New Jersey obstetrician faced a rate of $563,000.
Those high costs are not due to an increase in the errors of physicians nor to a degeneration in the skills of surgeons. Rather, the cause is a legal system that facilitates theft.
In a free society, the legitimate function of tort law is to allow someone to recover damages if he is harmed by the accidental or negligent behavior of another. Insurance is the principal way that responsible individuals undertake to cover the costs of their rare, harmful actions.
Yet in many counties and states tort laws make it easy for individuals, businesses, and professionals like doctors to be sued even if they’ve done nothing wrong. For example, in the United States (in contrast to many other countries) losing plaintiffs do not have to cover the huge legal bills of defendants whom they sue unsuccessfully. Furthermore, insurance companies will often settle with plaintiffs, even though their clients are innocent, as long as the settlement is substantially less than the cost of mounting a defense. Thus, there’s little downside to filing a false suit.
Such defective laws have given rise to a new predator class, plaintiffs’ lawyers, who, rather than merely helping individuals collect just compensation for injuries, are systematically targeting the most productive and thus wealthiest members of society for the same reason that bank robbers rob banks: because that’s where the money is. And because there are no objective limits to "pain and suffering" damages, a plaintiff lawyer’s cut of his client’s award can be huge indeed.
Worse still, these lawyers try to give their nefarious activities the sheen of moral superiority, claiming to help "little guys" who suffer injuries at the hands of the greedy rich. Naturally, they are major donors to the Democratic Party, which specializes in loot-the-rich rhetoric and which supports the laws that make possible such predation.
Faced with high costs and bogus lawsuits, many physicians are simply quitting their profession. Because of the current cost crisis, 27 percent of hospitals report doctors leaving or retiring, according to the American Health Association; 25 percent report that it is difficult to find doctors; and 20 percent have cut back services. Dozens of top-flight surgeons in West Virginia have gone on strike, refusing to work in hospitals because of insurance costs. In Pennsylvania, a wider strike is still threatened. Last year in Las Vegas dozens of trauma surgeons resigned from hospitals over insurance costs. Atlas is shrugging—and the response from politicians has been as appalling as Ayn Rand predicted.
On December 20th Pennsylvania’s Secretary of the Commonwealth, C. Michael Weaver, sent a letter to the state’s physicians threatening that a work stoppage would be detrimental to "your practice … as well as your license should your conduct be found to constitute abandonment." Remember that doctors are barred from practicing without malpractice insurance, and that Pennsylvania’s dysfunctional laws make it costly and difficult for physicians to acquire such insurance. Now one of that state’s top politicians maintains that physicians are in effect feudal serfs chained to the jobs the state makes it impossible for them to perform. Few would deny to auto mechanics, steelworkers, or other citizens the right to strike. But doctors, because they are so essential, are to be denied this right.
It’s time for physicians to take the moral high ground. They toil for years to acquire the skills necessary to save lives, cure diseases, and alleviate pain and suffering. Their challenging work demands the best within them: a high level of intelligence, dedication, and endurance. And it makes them prosperous, as well it should.
Physicians should reject the notion that because of their importance, status, or wealth they are duty-bound to serve under a legal and political regime that punishes them for their virtues. They should resolve to offer their services only in a system that grants doctors the freedom owed to all productive persons, that compensates patients only for acts of genuine negligence, and that protects physicians from the pseudo-judicial predation of the envious.