PERSPECTIVES ON PUNITIVE AWARDS : In Defense of Trial Lawyers--and Juries : Doctors, manufacturers just want to duck their liability with so-called lawsuit reform, leaving consumers vulnerable.

Trial lawyers are under attack by an insurance industry bent on limiting liability for doctors and manufacturers who negligently harm their patients and consumers. Their intent is to restrict the issues that juries can decide and seriously erode their power. They accuse trial lawyers of filing trivial lawsuits that drain billions from our economy each year.

Trivial lawsuits? Tell that to the parents of Shannon Moseley. A jury in Atlanta awarded his parents $4.2 million in actual damages for the loss of their son and $101 million in punitive damages as punishment for GM’s conscious indifference toward public safety.

In a statement following the verdict, GM denied any responsibility for Moseley’s death and attributed the award to an emotional jury that did not understand the technical evidence. That “technical” evidence included the testimony of Ronald E. Elwell, a former GM safety engineer, who stated that the company had known for years about the danger of side-mounted gas tanks, but hid the truth from the public. Consequently, GM’s lawsuit alleging that NBC unfairly rigged a reconstruction of its pickup exploding on impact appears to be a self-serving public relations stunt.

Proponents of measures restricting recovery in product-liability cases are certain to cite the massive verdict in the Moseley case. They have argued for years that businesses are slow to invest in research and development of new products for fear of being saddled with lawsuits and large awards. Those fears, while understandable, are also unfounded. Last year, after resisting for a decade, the insurance industry revealed separate financial information on product-liability cases. The average payment over the last 10 years, by all defendants to victims, including punitive damages, was only $3,767. The average payment to victims’ lawyers was $1,256, and to defense lawyers, $2,028. If these suits were eliminated, the manufacturers’ savings in premiums would be a paltry 14/100 of 1% of total retail sales.

The arguments for curtailing recovery in medical malpractice cases are similarly flawed. Researchers at Harvard Medical School who analyzed more than 31,000 hospital charts concluded that doctors were sued in only 2% of the cases where they documented substandard care. Ironically, they faulted the legal system for failing to identify even more cases of malpractice. In another recent study, doctors analyzed more than 8,000 malpractice suits from a physician-owned insurance company. They concluded that payments won by patients usually reflected substandard care and the amount paid correlated closely with the severity of the injury.

With this and other data, proponents of malpractice reform have begun to shift the debate to the murky concept of defensive medicine--procedures doctors are said to perform to avoid lawsuits--which the American Medical Assn. estimates costs $15 billion annually. However, a recent report by the Congressional Budget Office concluded that much of what is “dubbed ‘defensive medicine’ ” is standard medical care that would be provided anyway. The report also said that total cost of malpractice premiums (and payouts) represent less than 1% of the $817 billion we spent on health care last year. Eliminating these suits would save little in health-care costs--a perspective that should lead to a more reasoned debate about restructuring malpractice liability.

Trivial lawsuits remain the exception. Ironically, it is the much-criticized contingency-fee contract that affords the public its greatest protection against lawsuit abuse. No competent attorney is going to invest time and money in a case he cannot win. Moreover, these contracts remain the only way people of modest means can obtain top legal representation.

Trial lawyers have a financial interest in maintaining tort liability, but that does not diminish our concern about the future of the jury system. More laws favoring moneyed interests--primarily insurance companies--appear inevitable. With liability and damages limited by legislatures, the purpose and power of juries will be diminished further. That is a dangerous development in a nation where juries have played an indispensable role in maintaining the rule of law--and the fragile balance between litigants of disparate means, such as General Motors and the Moseleys.