FAIR questions the factuality of John Stossel’s hatchet job against John Edwards on 20/20 last week, and the justice of giving him the space to fulminate from the right each week without any counter-balance from the right:

How much of the increase in C-sections is due to medical judgment, rather than fear of lawsuits? Stossel doesn’t address the question. Dr. Luis Sanchez-Ramos, an obstetrics professor at the University of Florida, noted in the British Medical Journal (2/12/94) that “in Brazil and Mexico, where malpractice is not a problem, the caesarean section rate is still high.” Sanchez-Ramos suggested that profit may be another motive driving C-sections, pointing out that rates are higher in for-profit hospitals and with patients who have good health insurance.

But Stossel focused on lawsuits as the core problem: “So are women today suffering more pain, even risking their lives on unnecessary surgery, partly because lawyers like John Edwards scared doctors?” It’s a complex question, depending among other issues on how much of the surgery is actually “unnecessary.” But Stossel’s answer just assumes that trial lawyers are the villains: “Well, maybe all Edwards’ cases were good ones, but the fearful atmosphere that lawsuits create has far-reaching consequences.” That we should see malpractice suits as making doctors “fearful” rather than “careful” is something that the ABC journalist asserts rather than explains.

Of course, political candidates are fair game for criticism. But given Stossel’s politics, it’s unlikely that he will be doing a similar attack on George W. Bush or Dick Cheney this campaign season– certainly not one that fits in with their opponents’ talking points so well. (When Edwards was picked by Kerry, the Republican National Committee’s website headlined its response, “Who Is John Edwards? A Disingenuous, Unaccomplished Liberal And Friend To Personal Injury Trial Lawyers.”) When ABC’s parent company Disney refused to allow its Miramax subsidiary to distribute Michael Moore’s film “Fahrenheit 9/11,” company CEO Michael Eisner offered this rationale (5/5/04): “We just didn’t want to be in the middle of a politically oriented film during an election year.” So why does ABC air one-sided political commentary during an election year?

When I watched part of Stossel’s commentary on TV, I thought to myself “Maybe we should let both sides bring medical experts to argue their case to the jury. Except – we already do.” Conservatives are always claiming that their opposition to judicial decisions which limit the power of their constituencies is based in an abiding faith in democracy and a distrust of unelected judges. But in the same breath they argue for tort reform in order to protect those same constituencies from regulation by juries. And they gleefully marshall technocratic arguments to suggest that a sampling of “the people” shouldn’t be trusted to decide such cases. They’re stuck making that argument because for all the talk about Americans hating lawyers and malpractice suits, it isn’t trial lawyers who decide cases and determine damages. It’s a (not fully representative) sampling of the American people. So conservatives’ concern isn’t about democracy. It’s about power.


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