Senator Dick Durbin proudly describes his career in the following quote: “Before I was elected to Congress, I worked in a courtroom. For years, I defended doctors and hospitals, and for years, I sued them on behalf of people who were victims of medical malpractice.”
Thirty percent, 131 members, of the House of Representatives and 51 percent, 51 members, of the Senate are lawyers. Senator Durbin is one of 182 lawyers in Congress. It is roughly estimated that 15 percent of all lawyers in the country are malpractice attorneys. Hence, including Dick Durbin, roughly 27 former malpractice attorneys are in Congress.
Senator Durbin’s own words betray something very troubling about him. For years, he defended doctors and hospitals who were sued by patients for medical malpractice. Seventy percent of these claims were likely frivolous. One could only assume that an exceptional lawyer should win 70 percent of all claims they represent. If he was paid billable hours by a malpractice carrier for defending a doctor or hospital, whether he prevailed or not, and if he was successful in that role, he would prosper, and malpractice carriers would seek him out. He would never have changed.
But he did change. For whatever reason, he flip-flopped. He sued doctors and hospitals. His clients were patients who were alleged victims of medical malpractice. Seventy percent of their claims were likely frivolous. He intended to thrive from 30 percent to 40 percent of an award through a contingency fee every time he prevailed, whether the claim was meritorious or not, by suing the same malpractice carriers that paid him in the past. He was a typical ambulance chaser. If he was successful as an ambulance chaser, he would prosper, and clients would seek him out. He would never have changed.
But he did change. For whatever reason, he became a senator.
His words make him a fitting symbol for a lawyer in Congress. Like him, 27 of 182 lawyers in Congress were likely malpractice attorneys before they were elected.
Is it any wonder that a malpractice crisis waxed and waned for 65 years without a legislative solution? How much in political contributions do these members of Congress get from the medical liability litigation industry?
By connecting the dots, a disturbing picture emerges. Today, our country is in disarray because the president is a lawyer and 33 percent of all members of Congress are lawyers, 15 percent of whom are former malpractice attorneys. When practicing law, they represented or defended against lawsuits of which 70 percent had no merit. What could possibly go wrong?
Think in terms of the Moneyball test: “If he is supposed to be such a good hitter, why doesn’t he hit so good?” Paraphrasing it: If government is supposed to govern so well, why doesn’t it govern so well?
Governance fails when government fails. This is only possible when decision-makers, regardless of the capacity in which they serve, are unethical or incompetent or both. Today, a day does not pass without reminding us of this. A day also does not pass without another frivolous medical malpractice lawsuit being filed; more precisely, another 163 frivolous lawsuits. See the connection? Today, attorneys act with impunity because they know they will never be held accountable.
We should not be shocked by the attitude that lawyers know best. First, they change their rules to suit them; next, they change our rules to suit them. One could almost hear them say, “It’s not so bad; just a few more rules. Put your mask on and shut up! Do what we say or we will cancel you, put you in jail, or kill you. This is how it works. This is how mass hysteria always works.”
Summary: The high percentage of lawyers in Congress, particularly those with backgrounds in medical malpractice litigation, contributes to a flawed legal and political system where governance is compromised by self-serving interests, leading to unchecked litigation and legislative stagnation.
Howard Smith is an obstetrics-gynecology physician.
