In discussing health care with some of my moderate to conservative friends (yes, these people really do exist at Brandeis), I noticed something interesting. There seems to be this pervasive feeling that nothing John Kerry says about the issue can be taken seriously because he picked John Edwards as his running mate. As a trial lawyer, they say, Edwards was directly responsible for the rising health costs he now says he wants to fix. I even heard one person go so far as to say, "John Edwards got rich by stealing money from doctors."People's basic argument against the trial lawyers goes somewhat like this: Trial lawyers sue doctors for stupid and frivolous things. Juries award large multimillion dollar verdicts to people who don't really deserve it. Insurance companies are forced to pay this out. To make up for this, the insurance companies have to raise malpractice premiums on doctors, who in turn have to raise medical costs on their patients.

However, this argument is false in several key ways. The first is that cases with verdicts over a million dollars in fact make up a very small fraction of all malpractice lawsuits. The largest verdicts, especially when they are for obviously stupid things, tend to get the most press coverage. This makes people think they are far more common than they actually are.

In addition, not all multimillion dollar verdicts are for frivolous reasons. There are probably some on the far right who would like to see the entire medical profession--or more likely, the entire business world-exempt from lawsuits altogether. However, I think most people would agree that, if a doctor makes a bad decision, and this causes serious damage the health of the patient, then the patient ought to have some recourse to get compensation. This sort of award-large as it may be-could certainly not be considered stealing from the doctor.

Yet another reason the trials lawyers are not responsible is due to this vicious cycle whereby the insurance companies themselves are responsible for the high awards they need to pay out. A patient goes to the doctor. The doctor determines the patient needs a certain expensive procedure. However, the patient's HMO says they will not pay for this treatment. The doctor is then forced to use a less expensive--but also less effective--treatment.

This leads to injury for the patient. The patient then has no choice but to sue the doctor for malpractice. He wins the case and the very same insurance company that wouldn't pay for his treatment, now has to pay far more in the form of a malpractice award. The insurance company then uses this as an excuse to raise premiums for the doctors, and the cycle continues. I say excuse because, in fact, when insurance companies raise premiums on doctors, less than half of that money actually goes to litigation costs. If the insurance companies would just let the doctors make the proper medical decisions in the first place, they would not be subject to the high degree of litigation they keep blaming on the trial lawyers.

The question now is: What needs to be done about the system? The key idea in the Republican plan is to institute an arbitrary cap on punitive damages, placing a maximum amount that someone can win in a malpractice suit. This will do little to fix the system.

It is true that some verdicts are higher than they ought to be. However, an arbitrary cap will not allow those people who genuinely deserve high verdicts to get them. If a doctor mixes drugs that have a dangerous reaction with each other, and, in doing so, causes permanent brain damage to the patient, this patient deserves a multimillion dollar verdict.

All capping damages will do is make our health care system worse, because the insurance companies will have even less fear of reprisal when they withhold needed services from patients. Empirically speaking, the bipartisan Congressional Budget Office study recently showed no significant difference, on a state level, between health care costs in states with caps on liability and states in without.

A much better way to reduce the number of frivolous cases in the system would be to give more discretion to judges. In a criminal case, the jury finds the defendant guilty, but the judge determines, within certain guidelines, just how long he ought to serve in jail for his crime. The same is true for lawsuits. If the jury finds in favor of the plaintiff, but the judge, who is not as easily swayed by a lawyer's emotional appeal, sees the case as frivolous, he ought to be able to drastically reduce the quantity of the award that is paid out.

Another way to fix the system would be to make malpractice insurance more like auto insurance. Just as with auto insurance, if you get in an accident, your premium goes up. Malpractice insurance should adopt a similar system. If you lose a large verdict, your premiums should go up, and not doctor's costs.

In fact, studies have shown that five percent of doctors are responsible for over half the money paid out in malpractice verdicts. If insurance rates would go up only on these five percent, heath care costs for people going to all the fully competent doctors, could be significantly lowered. Granted, a system like this would probably force a large number of that five percent to stop practicing medicine. But if you keep losing large malpractice suits, perhaps medicine isn't the career you ought to pursue in the first place.

All this is not to say I think all trial lawyers are completely honest. They are not. But they are also not any more dishonest than other kinds of lawyers that Republicans seem to like. All I am saying is that trial lawyers are not responsible--at least not in any significant way-for high health care costs. Therefore, the plans of John Kerry and John Edwards ought to be taken seriously. And remember, the last person whose word you should take about someone being dishonest is a politician.