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NOVAK: You know Duke University has a good reputation. Everybody makes mistakes. Even CNN makes mistakes.
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And I just smell -- I hate to say this, but I just smell the sign of her relatives are building up for pain and suffering to get a killing, to get not $250,000, but millions of dollars for this. I mean, isn't that what this is about?
TOOBIN: Well, certainly it could be about that. But the whole idea of a torte system, of medical malpractice is that you want to create incentives for good care. And this does seem to me, as a non- doctor, as a pretty basic mistake that was made here. And maybe $250,000 is not really enough for a lifetime of suffering.
If, in fact, a mistake by a doctor creates a problem like this, you can see why jurors sometimes do award this kind of money. It's not -- jurors are not necessarily just crazy when they award this money.
NOVAK: But how can you define it, when in fact if no mistake had been made, there was no sign that this girl would have lived more than a year, anyway, it seems that this is really playing god, isn't it Jeffrey?
TOOBIN: Well, not necessarily. I mean I think the standard of negligence law usually is reasonable care. And I think, if the surgery had simply not gone well, if she was too sick and she died, I think it is unlikely there would have been any lawsuit. But here you have the kind of mistake that is so basic and so obvious that you can see why the legal system might say, look, we are willing to accept some risks, but not this kind of risk.
You don't want walk into an operation like this thinking your arm is going to be cut off. You don't walk in to an operation like this thinking that they're going to give you organs with the wrong blood type.
BEGALA: And, in fact, Jeffrey, our president has used the phrase repeatedly, lottery. The litigation lottery, he calls it. And it seems to me a remarkably callous way to talk about people who have had the wrong limb chopped off, or like this little girl, the wrong organs, the wrong blood type inserted into her chest.
I just think that certainly as a political matter, the president risks losing some of that image of being a compassionate guy when he mocks people who have been the victim of this kind of damage.
TOOBIN: Well, I'm not sure he's taking such a great risk when he's got -- like he has so many of the nation's doctors on his side. I mean there is a real liability crisis in the country. I mean this is not an invented situation.
You have many very, very good doctors who are saying, we simply can't function under these conditions. So it's not entirely a question of being unsympathetic to victims. It's a system that just simply isn't working at this point.
BEGALA: Well isn't it a question of hypocrisy, when George Bush became president because he filed a lawsuit, and now he doesn't want to let this little girl's parents file a lawsuit?
TOOBIN: Now you're really in my territory here.
NOVAK: That's ridiculous.
TOOBIN: Well I really think that is sort of apples and oranges, Paul.
NOVAK: It's just ridiculous. BEGALA: No, it's hypocrisy.
NOVAK: Jeffrey, it's the kind of stuff I have to hear every night that I'm on here with Paul. And it's just baloney. Let me say this, isn't there a question of whether -- how do you measure pain and suffering for young people? I mean I would guess her family would not make $250,000 in five years, at the most. I mean, the idea that they had to have millions of dollars for this, what is the measurement of that?
TOOBIN: Well, that's why we have juries. And, in fact, juries are a very conservative idea, Bob? Fundamentally it's the voice of the people. It's the voice of the community speaking. And the jury gets to decide what suffering is worth, and suffering is worth something.
I mean if someone is in a wheelchair unjustifiably for 10 years, for 20 years, you could see the costs there. And you could see a dollar value being assigned to that. So I think it's not simply crazy to let juries decide. Often they come to very reasonable conclusions.
