America’s national sport is coming to the hospital near you

Why do the same medical procedures often cost three times as much in America as in British private hospitals? The answer is, malpractice litigation, much of it spurred on by lawyers’ contingency fees, ‘no win, no fee’ in common parlance.

I remember once complaining to a lawyer at a New York party that one of my numerous medical problems had at first been misdiagnosed. ‘Sue!’ he half-shouted, as New Yorkers do. ‘But I’m not sure it was their fault…’ I objected meekly. ‘Whaddaya, a lawyer?!?’ He added a few decibels. ‘It’s not YOUR job to decide whose fault it is! That’s what we’ve got JUDGES for! And JURIES!! YOUR job is to sue everyone you know when something goes WRONG!!!’

Such division of labour between ambulance chasers and those in the ambulances has effectively destroyed, or at least greatly compromised, what used to be a most effective system of medical care. Worse still, it gave President Obama an opening to indulge his socialist instincts by reviving the late Teddy Kennedy’s pet project: socialised medicine.

Obama is obviously inspired by the resounding success of our dear NHS, whose champions nowadays defend it by saying that on balance it helps more people than it kills. But it’s a two-way street: Americans learn socialism from us; we learn ambulance chasing from them.

Apparently £15.7 billion, one seventh of the NHS budget, is set aside for settling malpractice claims, many of them brought up on a no win, no fee basis. Last year the number of negligence claims went up by 30 percent on the year before, with about £1 billion paid out in settlements and God knows how many more billions outstanding. Many of these billions are a direct result of Lord Justice Jackson’s 2010 endorsement of contingency fees in Britain.

The concept has a different meaning in Britain, compared to the USA. There lawyers are allowed to receive a cut of the settlement, often as high as 60 percent. Here this practice is still banned, but no win, no fee lawyers are allowed to charge much higher fees if they win than they would do normally. The American system encourages tort lawyers to press for the highest possible award; ours encourages them to draw out the litigation as much as possible. Both are iniquitous.

Obviously victims of gross negligence, especially of the kind that leads to loss of income, ought to be entitled to compensation, and their ability to seek it shouldn’t depend on their wealth. There should exist a network of public-spirited advocates to handle such claims for small fees provided by either Legal Aid or the claimant, and much of this is already in place. Effectively, however, this means that the system is biased towards those who are either rich enough to afford legal fees or poor enough to qualify for Legal Aid.

Empirical evidence suggests that those in the second category are much more likely to sue for malpractice than those in the first. And they can do so at no risk to themselves: even if their claim is patently frivolous and they lose as a result, they bear no costs. The winners are those lawyers who are paid by Legal Aid; the losers are tax payers. You and me.

The thin-end-of-the-wedge argument doesn’t always work, but it does in this case. I’m certain that the culture of litigation will spread like brushfire here, just as it did in America decades ago. For example, it’s a foregone conclusion that sooner or later our tobacco industry, just like its American counterpart, will have to pay out billions in claim settlements — as if smokers had been unaware of the link between smoking and lung diseases.

Before long we’ll be reading about cases like the one I remember in New York, where a woman once claimed that, as a result of a bus jerking to a stop, she had become frigid. She, or rather her lawyers, estimated the monetary equivalent of that trauma at a million dollars. Given the aesthetic and legal problems involved in obtaining forensic evidence against the claimant, the City of New York settled out of court for $50,000, which was serious money back in the 1970s.

High as the amusement value of such accounts may be, I doubt many of us would like to pay for this type of entertainment out of our own pockets. But this is precisely what we do now, and will be doing on a higher scale soon, unless someone puts an end to that madness.

That will never happen, for such an action would undermine the real purpose of today’s public spending: pumping money out of private purses into those belonging to the administrative, legal and ‘help’ personnel in and around the government, with the state taking its cut off the top. This is a crying shame, and it’ll be people like you and me who’ll do the crying.

Fast food of dubious provenance. Baseball caps worn backwards. Verbs made out of nouns. And now ambulance chasing. Why is it that we borrow only bad things from Americans and never the good things, such as their industry, enterprise and good-natured equanimity towards others’ success? Admittedly those fine qualities are diminishing even in their native habitat, but that’s no reason not to learn from them.

So why do we only follow the rotten examples? Must be human nature, I suppose. And also a society that no longer suppresses the bad part of human nature, nor encourages the good.

By Alexander Boot

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