Critical condition: doctors and lawyers maul each other over medical malpractice. It's a real mess, but is it a real crisis?

• Author: Martin, Edward
• Position: Cover Story

The little girl cries, thrashing her head. The sedatives she's been given have little effect--she gets more agitated. Reluctantly, the plastic surgeon tells nurses to strap her onto a papoose board, a straitjacketlike device that restrains children while they're treated. An hour earlier, 2-year-old Courtney Spain had been playing with her 4-year-old brother at their house being built in Grimesland, east of Greenville. While her parents talked to contractors, the kids ran to the family van. Clambering in, Courtney fell face first onto the gravel driveway.

Now, at Pitt County Memorial Hospital, the surgeon squints into the child's bloody mouth. Stitches are needed. A nurse bends a lamp's elbowlike arm into place over Courtney's chest, angling its light at her face. As the surgeon begins, another nurse glances around, wiping her brow. "Isn't it hot in here?" The lamp's halogen bulb glows at 1,100 degrees, hot enough to melt aluminum.

Finished, the doctor steps back, and a nurse unwraps the heavy cloth flaps of the papoose board. A murmur ripples through the room. "Courtney was lying there with this red, blistered area covering the whole center of her chest," her mother recalls. The nurse peels away the last flap, the child's skin clinging to it.

Five years later, a jury would award Courtney Spain nearly $3.8 million for third-degree burns--a maintenance worker forgot to replace the lamp's heat shield--that doctors say will require years of additional surgery. It was one of 20 medical-malpractice settlements or verdicts in North Carolina that exceeded $1.35 million in 2003, according to Lawyers Weekly newspaper. In 1990, only four were more than $1 million.

What those numbers say depends on who's talking. Trial lawyers and patient advocates claim that careless medicine is killing and maiming patients whose cases must claw their way through a legal maze from which only a fraction of the most grievous emerge. The medical community says that they show a tort system so twisted it jeopardizes the health of North Carolina's citizens and its economy.

Physicians and hospitals argue that frivolous cases brought by greedy lawyers have caused insurance premiums to soar, sowing the seeds of a doctor shortage. This, they say, has created a crisis in health care, and they're demanding that state and national legislators pass laws that limit damages in malpractice cases. Last September, the N.C. Senate passed a tort-reform bill, but it didn't include the key provisions doctors wanted--a $250,000 cap on noneconomic damages and limits on lawyers' fees. A House task force is studying drafts of eight different bills.

"I've always said North Carolina is a progressive state, and we can solve problems before the train wreck gets here," says Joe Jenkins, chairman of the 11,000-member North Carolina Medical Society's Professional Liability Task Force. Trained as a urologist and a lawyer, he is one of a dozen lobbyists that physicians and hospitals have in Raleigh. Lawyers have eight. On both sides, the principal lobbying issue for more than two years has been the same--medical malpractice. "I'm afraid now we're going to have that train wreck before anybody listens."

Hurtling down the tracks toward each other are two of the state's most powerful elites. Last year, the almost 4,000-member North Carolina Academy of Trial Lawyers ran television ads claiming that bad medicine kills eight patients a day in North Carolina. The state chapter of Doctors for Medical Liability Reform responded this spring with a 30-minute infomercial warning that physicians are fleeing to other states and medical students are switching to other professions.

Both sides hurl statistics at each other like spears and spar with echolike jabs: The other side is economically motivated, playing loose with the truth and not concerned with the well-being of patient or client. Most accusations against them are groundless, doctors argue, noting that 70% of patients who sue lose. That just shows, lawyers counter, how things are stacked against their clients, how hard it is for injured patients to get justice.

It's clear there's a mess. John Ferguson, a Reidsville obstetrician and gynecologist, has seen malpractice-insurance premiums for his $1.5 million practice go from $30,000 to $330,000 in two years, partly from the addition of a second doctor and for a claim settled out of court. "I practice medicine with the assumption there's a lawyer standing in the corner." But while calling this a crisis might be good politics, it might be a bad diagnosis.

About 70 miles northwest of Greenville in Louisburg, a Franklin County town of about 3,100, James Milon, 58, boosts himself in bed with a grunt. His wife, Rosa...