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Making a case for lawyers

Whenever it begins to seem that perhaps America does have too many lawyers, something comes along to say it isn't necessarily so.

The latest case in point: my colleague Carol Gentry's stunning report Sunday about how Clearwater's Morton Plant Hospital had spent almost seven years covering up for a heart surgeon whose patients died at more than twice the rate of his colleagues. The coverup continued even after he'd been kicked off the staff. Now the family of one of his patients is suing. Ironically, they might never have known if the doctor himself hadn't filed an antitrust suit against doctors who had blown the whistle on him.

The health care industry resents government regulation almost as much as it objects to being sued, but if regulation were effective, there wouldn't be nearly so much work for malpractice lawyers. Suppose, for example, that hospitals were required to disclose their comparative mortality statistics on their surgical consent forms.

Take note, please, who's beating the loudest anti-lawyer drum. It's the Bush-Quayle administration, which also has hangups about making and enforcing any sort of public safety regulation. The only law that appears to suit them is the law of the jungle _ a jungle where the predators have teeth and the prey are unarmed.

Maybe government will get off its duff someday. Or maybe the medical profession will get really serious about policing its own. But for now the only thing the people have going for them is their right to hire a lawyer and sue for damages. It seems to be the only thing the establishment fears.

In New Jersey, lawyers for a cancer victim have uncovered evidence that led a federal judge to suggest the tobacco industry had stonewalled its own research findings on the dangers of smoking, under cover of promising to release them. The judge, H. Lee Sarokin, said a jury might reasonably find that the industry's promises were "nothing but a public relations ploy _ a fraud _ to deflect the growing evidence against the industry, to encourage smokers to continue and nonsmokers to begin, and to reassure the public that adverse information would be disclosed." The industry said the judge drew the wrong conclusion from a cursory sampling of documents that it had tried to keep secret under the attorney-client privilege.

Maybe the government will someday get serious about smoking too. But if it happens, chances are we'll owe it to plaintiffs' lawyers having looked under rocks that the politicians were paid not to see.

Now that I have said a word or two for the trial lawyers, it is time to disagree with them.

Some Florida farmers are asking the Legislature to protect them from being sued by people whom they let pick over their fields for free. The bills, which have organizational support from the Florida Farm Bureau and the Society of St. Andrew of the United Method Church, are intended to facilitate gleaning projects to benefit food banks and other charities. A farmer still could be sued for injuries or deaths resulting from gross negligence or intentional acts, but not for ordinary accidents.

Roswell Harrington, who farms corn, beans and onions on 100 acres in Palm Beach County, called me about this.

"Farmers are paranoid where liability issues are involved," he said. "In this case, paranoia is justified, because there is someone out to get you."

Harrington says he ought to be sued if he runs his tractor over gleaners he has invited into his fields or sprays them with pesticides _ but not if they hurt themselves falling into a ditch he has warned them is there.

"'You know, I'm not sure that bill changes the law very much," says Talbot "Sandy" D'Alemberte, a Florida lawyer and former legislator who is president of the American Bar Association. He said the risk could also be minimized by having the gleaners sign releases.

The Florida Academy of Trial Lawyers sees it the same way. "You can't successfully sue someone who's not negligent," says President Philip Freidin of Miami. "A lot of people misunderstand that because of the myth that lawsuits are so prevalent at the drop of a hat." Freidin remains to be convinced that very many farmers have ever been sued over injuries to gleaners. But he and the Academy are opposing the bill as yet another erosion of the public's legal rights.

"When is it going to stop? That's what I ask," says Freidin, who is also battling legislation that would protect doctors from being sued by their Medicaid or charity patients. He concedes, though, that "the farmer has the better argument than the doctor."

The real issue is feeding hungry people with crops that would otherwise rot in the fields. You'd think the lawyers ought to be able to work out something with the farm lobbyists that would give the farmers peace of mind.

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