But the high cost of malpractice insurance is no gimmick if fewer doctors deliver babies or become neurosurgeons. Dr. Chris Hawk, a prominent Charleston physician, enlivened the debate earlier this year when he proposed that doctors should not treat lawyers who bring suits against doctors. He concedes that the idea may be "repulsive," but he's serious (maybe even dead serious). He argues that such a policy is ethical as long as no one is deprived of emergency care and a doctor gives the patient 30-day notice of termination. He has told one malpractice lawyer among his patients that she should look for another doctor. "It's the only way I know she will not sue me," Hawk argues. Says a neurosurgeon: "It's too bad doctors aren't allowed to strike. That would get everybody's attention."
Both sides in the debate can give as good as they get. If the trial lawyers are better-organized and have more money than doctors, there remains the constituency - and it's a big one - of would-be mothers and others alarmed by the way high malpractice rates influence the availability and cost of health care. The arguments often descend into appeals to raw emotion, much like a good trial lawyer's assault on the sentiments and sensations of jurors.
In one famous summation, John Edwards became a channeler, listening to voices that only he and Shirley MacLaine could hear. "I feel her presence," he told a jury of a little girl who was born brain-damaged, the victim, he said, of a doctor's malfeasance. "She's inside me and she's talking to you. . She says: 'I don't ask for your pity. What I do ask for is your courage and strength.' " (She was remarkably well spoken for a child so young.) On behalf of another child brain-damaged at birth, he produced witnesses who testified that the girl might live for more than 40 years. The jury awarded $23 million. The child died of her injuries when she was six years old.
A neurosurgeon, shaking his head at this excess of commercial compassion, showed me a cartoon depicting the two Johns in campaign mode, captioned, "Vote for me or I'll sue you." Clever, but a growing number of South Carolinians think it's not really funny.