EDITORIAL

John Edwards:
The wrong prescription for ob/gyns!!!

Ending months of speculation, Democratic Presidential candidate Sen. John Kerry (D-MA) has picked Sen. John Edwards (D-NC) as his running mate. Kerry's choice offers insights into his administration's likely health-care priorities. And unfortunately for ob/gyns, it also raises profound concerns about the prospects for federal tort reform during a Kerry-Edwards administration.

Runner-up to Kerry in many of the Democratic primaries, Edwards certainly adds geographical balance, passion, charisma, and energy to the ticket. Articulate yet folksy, he appears far younger than his 50 years and is a marathon runner—not a bad attribute in a candidate for national office. Edwards' humble working-class rural roots and courageous handling of the death of his 16-year-old son add to his appeal.

A review of Edwards' voting record shows several very positive features. He supports a woman's right to choose and increased funding for the National Institutes of Health (NIH). He worked closely with Sen. John McCain (R-AZ) on a comprehensive patient rights bill that included direct access to ob/gyns for women. Edwards also has boldly proposed to increase the number of desperately needed nurses by making grants available to hospitals and nursing homes to improve nursing pay and working conditions. His goal is to draw 50,000 former nurses back into the profession. He has also proposed a plan, similar to one implemented during the Carter-Mondale administration, to fund expansion of nursing schools and provide federal scholarships to add 50,000 new nurses to the job pool.

Laudable, too, is Edwards' focus on reducing racial and ethnic disparities in health outcomes. He proposed a national medical translation system to reduce language barriers and supports increased funding for research on disparities in health outcomes. However, he ties these initiatives to increased federal regulations and bureaucracy, including a new health unit within the Civil Rights Division of the Department of Justice to address "discrimination" in health care.

Edwards has also launched aggressive attacks on the pharmaceutical industry. He contends that direct-to-consumer advertisements by pharmaceutical companies are responsible for 12% of the increase in prescription drug prices. He has offered two Senate amendments to regulate such advertisements and reduce direct-to-consumer advertising. Edwards proposes to "nationalize" drug trials by having experts from across government conduct and publish research comparing drug efficacy. The NIH would also be burdened by yet another unfunded mandate to use its already scant resources to conduct trials comparing similar pharmaceuticals.

While Edwards supports changes in patent laws that will encourage innovation in new drug development and has proposed generic drug legislation that could reduce costs, he has also proposed aggressive prosecution of pharmaceutical company executives for overcharging the government for prescriptions. He would immediately have the Department of Justice launch a comprehensive investigation into drug company "price gouging" of taxpayers. Such actions would almost certainly reduce productivity, slow new drug development, increase red tape, impede competition, and paradoxically increase costs in the long run.

The greatest concern that most ob/gyns have about John Edwards is his track record as one of the nation's most successful trial lawyers. He has garnered more than $150 million in jury awards, judgments, and settlements from product liability/medical malpractice cases. His personal take appears to be in the range of $30 to $60 million and a number of his cases have been against ob/gyns.

Edwards' first such case, in 1985, resulted in a $6.5 million award against an obstetrician for not performing a cesarean delivery for a fetus in a breech presentation. And this was 16 years before the American College of Obstetricians and Gynecologists' committee opinion recommending C/S for term, singleton breech presentations! In 1997, Edwards won a jury award of $23.2 million against another obstetrician and her employer in a brain-damaged child case—the largest malpractice award in the history of the state of North Carolina. Indeed, Edwards has paid $9,353,448 in federal taxes on his income of $26,869,496 over the 4-year period since entering the Senate.¹ Ironically, he used a tax shelter to avoid paying $591,112 in Medicare taxes. A Wall Street Journal editorial contended that "the dodge is especially hypocritical because the income limits on which Medicare taxes are paid were lifted by Democrats in 1993 specifically to hit "the rich," as Mr. Edwards likes to call people in his tax bracket."²

Not surprisingly, Edwards is absolutely opposed to caps on non-economic damages, the most useful component of tort reform. He cites the usual trial lawyer canard that only 5% of doctors are responsible for over half of all malpractice claims paid. Given that the typical ob/gyn will be sued once for every 3 years in practice, our specialty alone could account for much of that 5%, simply by virtue of our limited numbers and very high rate of unavoidable complications.

What does Edwards propose as an alternative to caps on non-economic damages? Not federal non-waivable limits on plaintiff's attorney fees, joint and several liability legislation, or any of a dozen meaningful measures to reduce the astronomical jury awards in medical malpractice cases. Rather, he proposes to "crack down on price gouging" by professional liability insurers, whom he blames for the current malpractice crisis. This is an interesting conclusion, considering that statistics filed by independent non-partisan state regulators of malpractice insurance companies indicate that the underwriting market has been highly unprofitable since 1995. Even if you include investment income, this line of insurance has been unprofitable since 2000.³ Belying the Senator's thesis that these companies are reaping windfall profits is the flight of traditional insurers, such as St. Paul, from the medical malpractice insurance market. Indeed, Sen. Edwards' absurd proposal to "crack down" will likely drive out the few remaining commercial carriers. That would deprive many ob/gyns of any access to professional liability insurance, and thus, many women of a doctor to deliver their babies.

One of Edwards' more ludicrous proposals for "tort reform" is a requirement for trial lawyers to "swear" that an expert doctor is ready to testify that real malpractice has occurred. Note that he doesn't require that an expert's name and reasoning be made public. Given the number of professional plaintiff experts who are ready, willing, and able to claim whatever a plaintiff attorney asks of them, the solemn affirmation of a trial lawyer that he or she "really" has a case will have no impact whatsoever on the current crisis. Edwards also would pass an unenforceable law forbidding trial lawyers who file three "frivolous" cases from bringing another suit for the next 10 years.

Recently a New York Times reporter asked John Edwards whether he and his fellow trial lawyers have contributed to our nation's escalating C/S rate. His response—that perhaps the nation's C/S rate was too low—is cold comfort to physicians who have dedicated themselves to women's health.

REFERENCES

1. Raum T. Edwards Made $27M in 4 Years Before Senate. Associated Press. July 10, 2004.

2. Liberal Loopholes. Review & Outlook. Wall Street Journal. July 13, 2004:A14.

3. Nordman E, Cermak D. Medical Malpractice Insurance: A Study of Market Conditions. Draft report presented to the National Association of Insurance Commissioners' Property & Casualty (C) Committee December 3, 2003.

Charles J. Lockwood, MD

Charles J. Lockwood, MD, Editor in Chief, is Anita O'Keefe Young Professor and Chair, Department of Obstetrics and Gynecology, Yale University School of Medicine, New Haven, Conn.

 

Charles Lockwood. Editorial: John Edwards: The wrong prescription for ob/gyns! Contemporary Ob/Gyn Aug. 1, 2004;49:8-11.