The American Bar Association's policy-making House of Delegates yesterday defeated a resolution calling for restraints on medical malpractice lawsuits amid warnings that the action may further damage the image of the legal profession.
The delegates also defeated a resolution calling for less government involvement in the content of broadcast journalism; endorsed financial aid of environmentalists and others who win suits against the government, and deferred action on a resolution endorsing "right to die" laws that eight states have enacted.
The final session of the three-day meeting focused on recommendations made after a two-day study by the ABA's Commission on Medical Professional Liability.
Nearly everything about the issue was controversial. The report reached most delegates too late for them to study (bad weather delayed the printing) the composition of the commission (none of the 14 members represented the view of victims of malpractice, complained Daniel L. Golden of South River, N.J.) and the debate was scheduled for the final session, which perhaps less than two-thirds of the delegates attended.
Opponents disputed not only the merits of the recommendations, but also the wisdom of separating them from the entire area of liability, which is now under review by the ABA. However, they also expressed concern that image of the profession would suffer if the ABA rejected the proposals.
In voice votes, the delegates rejected resolutions urging limits on compensation for "pain and suffering," preventing a victim compensated under health-and-accident policies from being compensated also by the malpractice defendant, permitting damages to be paid on an installment plan and reducing lawyers' contigency fees as the size of the awards increases.
By a standing vote of 96 to 99, they also defeated a recommendation that a potential plaintiff notify in writing each prospective defendant of his intent to sue 90 to 100 days before filing, so that a "cooling off" period might produce an out-of-court settlement.
The resolution concerning broadcast news and information programming was made by the Section on Science and Technology. It urged the ABA to endorse proposals intended to ease the "chilling effect" of Federal Communications Commission policies and practices said to involve the government "in day-to-day editorial decisions of broadcasters" and sometimes of cable television operators.
The delegates defeated the recommendation, 67 to 95, after hearing objections from the Federal Communications Bar Association. The FCC, under a new chairman, is considering some of the disputed policies and practices, said the association's Linda A. Cinciotta of Washington.
By voice vote, the delegates approved companion resolutions for legislation under which administrative agencies and courts could order the government to pay fees of persons who litigate successfully in:
Civil actions that result in "a substantial public benefit or enforce an important public right," if "the economic interest of the party is small in comparison to the cost of effective participation," or if the plaintiff can't afford adequate attorney's fees.
Litigation against the Internal Revenue Service "involving the dedetermination, recovery, refund or collection" of any federal tax.
In another action, the delegates rejected a recommendation for a law to prevent use of the federal courts by litigants who have access to them only because they are based in two or more states. Recently, a Justice Department task force recommended abolition of this so-called diversity litigation in the federal courts. Chief Justice Warren E. Burger has estimated that if Congress passed such a law, the annual work load of each federal judge would fall by about 100 cases, while the work load of each state judge would rise only by about 3.5 cases.