This is the same kind of unsupported argument that I was pointing out in my comments on an earlier post, Who Should Judge Malpractice?. Howard merely states that jurors are unable to judge, but gives no reasons why.

Once again:

1. Are jurors without medical training too ignorant to judge malpractice cases? Why?
2. If an individual
without medical training can give informed consent to a complex procedure that involves risk, why can’t twelve of his or her peers, also with no medical training, understand the same material?

No one has managed to break the link between the “average juror” and the “average patient” to me. If the “average juror” cannot make a reasonable decision regarding healthcare, than neither can the “average patient.” If this is the case, informed consent is a meaningless.

Without further support, attempts to say that jurors cannot judge, but patients can decide are merely attempts to have it both ways that don’t hang together logically.

Most people I have asked these two questions to, finding themselves in a bind, retreat to “Well, lawyers manipulate the jurors” — instead of trying to support the idea that jurors can’t judge malpractice. This is also typically unsupported argument, but slips by most people because few people would go against the cultural grain to say that lawyers aren’t manipulative — if people didn’t have that as a cultural norm, lawyer jokes wouldn’t be funny.

If lawyers manipulate jurors, surely they don’t do so *only* in malpractice cases. If jurors are similarly unable to resist the manipulations of lawyers, then why not abolish the entire jury system?

Well, Robert, I appreciate that you’ve tackled the issue head-on: you’re the only person I’ve talked to thus far who’s just willing to come out and say, “Okay, the average person without medical experience is incapable of judging (most? all?) malpractice cases, and here’s why.” Good! However, his is not true of the op/ed article linked to in the post — there’s just an assertion that jurors aren’t capable, but not why — you supply your own why.

I’m interested to hear more about your definition of informed consent. If people are making “subjective” definitions, what is the “informed” part about? I’m sure that you have a reason for breaking the linkage between informed consent and being able to be a member of a jury, but I’m not sure from reading your comment precisely what your reasoning is. Do you feel that informed consent doesn’t have anything to do with understanding the treatments you are given? Or are you trying to get at something different? Many people have told me that making decisions about your own healthcare and a third party being able to understand those same procedures is different. I’d certainly be willing to consider it if anyone who had some input were willing to say *how* it’s different.

The reason I ask for people to provide support for these arguments is that the remedies they provide are so significant — and not just to healthcare. I take the idea of a major industry opting out of one of the foundations of our democracy (our judicial system) very seriously. The act of removing the actions of citizens in their role as a jury from an entire sphere of commercial and human life is a very serious thing. I feel that the burden of proof lies with those who want to change it.

As to support for the idea of juries, well, the Founding Fathers could do it better than I. Open jury trials are a hallmark of a country’s commitment to democracy and civil rights. I wouldn’t want to live in a country where I wasn’t entitled to a jury trial if I were accused of an offense, civil or criminal. This is why I am for curbing the excesses of jury trials in malpractice cases (along with other remedies for the serious problems that rising malpractice rates have caused, including caps), and only eliminating the jury system as a last possible resort. What I would be for is medical courts which feature a judge advocate who is a doctor. This judge advocate could inform the judge when either side’s legal tactics have strayed too far from reality, and then the judge could rein in these, and make better instructions to the jury (thanks to R.G. Lacsamana for this idea).

Not worth considering. Well, if that’s the standard of discourse here, then I’ll just leave you guys to it. Us laypeople will sit around and let you guys run things from now on.

Being a layperson myself ,I cannot find fault with, the medical side of these issues,do to the fact I am not a liscensed physcian,and I do not profess to know your buisness.I read however ,about the 70% favor for the medical practice,and could challenge that by ,finding other groups, that have had different experiences (like not having John Q.paying their medical bills)who have had major medical treatment,after treatment,after treatment,and still die because of the medical people’s ideals that by GOD I’m the doctor, and that’s all you laypeople need to understand.I’m not the smartest guy around,but,I do have a Ph.D in Astrophyscics from M.I.T. and that still does’nt make me a brain surgeon either.Unless ,you do your own plumbing,electrical,mechanical,and whatever,you still depend on someone that is supposed to know what they are doing,and if you are not satisfied with their results ,do accept it and go on, or do you complain.Being the layperson ,you ,have now become,you should not concern yourself with such matters ,and read it in the stone that was just etched for you.Oh, you could have gotten references if you knew where to find them ,but,unless you have seen the results your’e still taking another layperson’s word for it.How,s it feel? I guess I’m a little bitter about this subject do to the fact my mother died a few months back,not due to malpractice but the lack of any practice that could have saved here life.I can also read those medical journals and understand them, but you don’t have to be a physician to see pain in someone’s eye’s with them telling you they have a problem, that is not new in your journal’s and prescribe a treatment or suggest another, more qualified,physician to take care of this.When you have had this problem for over a year and nothing is done until it is too late, to do anything about it, I guess I should just accept this and go on.I just can’t help wandering about the next poor layperson that “these”(plural) professionals are going to try and impress with their knowledge of this art.Emotion’s? Yes.If you want to be a stone, try reading ,what you people as a body have etched into it.