Contrast such “qualification” with the level of understanding necessary to grasp complexities of medicine that form the basis of clinical practice. For example, how many lay jurors understand Bayes’ theorem and the use of receiver-operating-characteristic curves as tools to interpret medical test results? Or the calculation of utility scores in clinical decision analysis? What about basic epidemiologic concepts as applied to the determination of causality (such as population attributable risk vs relative risk vs absolute risk). How many understand the complexities of clinical trials that impact on the evidentiary basis for the standard of care? These are NOT elitist academic curiosities–they are the ordinary, every day nuts-and-bolts skills that form the very basis of medical practice! As such they should be understood by anyone sitting in judgment of a doctor’s care. The corrupt process of paying expert witnesses, which is supposed to fix this problem, has been a failure.

Finally, I think Lisa may be attacking a straw man here. While I have pointed out serious flaws in the jury system, in no way did I suggest we dismantle it. The referenced article by Phillip Howard suggests only that juries not be asked to do more than the constitution requires, and that there are alternatives for process improvement that are worth considering. I agree.

When it takes a physician anywhere from 11 to 15 years to master the art and science of medicine, with all its complexities and nuances, plus the unresolved controversies,
it is ludicrous to assume that a layman, even as well-informed as Lisa may be, can have the expertise to judge a malpractice case on the same level as a physician. I have appeared as a witness for defendants on a few occasions, and I can document the fact that juries made up of laymen do not have even the elementary capacity to ask relevant questions, never mind to judge standards of care in contested cases. This is the experience of many other other physicians, which is why there have been calls over the years to tweak the tort system, apart from placing caps on damages.

A book published last year from the University of Chicago, authored by renonwed lawyers (a best-seller in our area), also documented the poor jobs juries have been doing in malpractice cases, and recommended – among other things – the idea of special juries that Mr. Howard is talking about. Why would laypeople like Ms. Williams object to something that looks so promising and with the potential to achieve medical justice for all?

Mr. Howard’s call for medical juries is nothing new, but I am glad he is reviving the issue to acquaint the public of what it is all about. He predicts correctly that trial lawyers are going to fight this to the bitter end; yet, in the face of a malpractice situation where cruel realities are starting to haunt the public,
it is time to try something that I feel is the best yet to come out of a welter of proposals but with no tangible results.

With more than 70% of the public supporting physicians on the malpractice problem, the time is ripe to support the creation of medical juries.

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).

Read some of the articles in Medical Economics in which malpractice attorneys (both plaintiff and defense) are interviewed. Almost without exception they believe that jurors’ subjective and emotional reactions trump objective evidence and they fashion their strategies accordingly.

If lay juries are capable of adjudicating the three elements of medical torts (breech of standard of care, harm, and causality) why do we need expert witnesses? Unfortunately our current system of expert medical testimony is flawed because it creates a conflict of interest by paying the so called expert to support one side’s agenda in an adversarial process.

And concerning your point about informed consent: Medical informed consent is all about the right of self-determination, and as such it’s *subjective*. One’s right to have questions answered and accept or refuse health care does not qualify that person to sit in judgment of others.

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?