Malpractice and Common Good continued

It is obvious Bernie Simon does not have much acquaintance with medical care and the way lay juries operate in malpractice cases.

His insistence that juries are as qualifed as physicians to judge medical complexities, and suggesting juries of physicians somehow smack of arrogance, struck me as hollow. The case presented here, I am sure, was simplified to illustrate the difference in the thought processes understanding informed consent as opposed to making judgments in standards of medical care. Most malpractice cases that go to court are far more complex than that.

While it is true a few physicians make poor judgments, that does not correlate with his observation that people grow in judgment as they get older. That judgment does not translate into saying that such people will be endowed with the same capabilites as physicians who have been exposed in that discipline for 15, 20, or 30 years.

Politics or not, this is a time for us to grasp at an opportunity that promises to have the best prospect of restoring justice to a tort system out of control. I would even be happy to see liberals like Ted Kennedy or John Edwards sponsor a bill like this.

Ah, see, now we are beginning to tease out the tangled meanings. I appreciate your explanation of the difference between the informed consent a patient may be giving before a medical procedure and what you mean by “a juror judging standards of care.” Since it seems that universal standards of care don’t (perhaps can’t?) exist, this is where the issue lies. Would you support a national standard of care, or is that a nonsensical suggestion?

As to Dave’s comment above, I have to say I am not always sure of my decisions. I have been a juror. It was not an easy decision, but it was my responsibility as a citizen to decide, in the face of contradictory arguments, facts and complex forensic data that pointed different ways, and legal maneuvers. It was not easy, but citizenship is not easy, or it shouldn’t be. I still think about the decision I made all the time. I have to say, after being a juror at that trial and attending several other trials as an observer, the phenomenon you describe “[lawyers] trying to undermine the accuracy of good witnesses” happens in *every* trial, and on both sides. I’ve seen DA’s do it to defense witnesses, and defense lawyers do it to prosecution witnesses. In fact, I’ve heard lawyers say that this is in fact a major pillar of our legal system. The shenanigans are the flip side of the coin — if someone accuses you of something, do you want your lawyer to be “fair and seek the truth,” or do you want the guy who gets out the brass knuckles and tries to pop the other guy in the nose? In our system of justice, each side gets to have an advocate who is totally on their side. It is not their job to be fair or find facts. What would we replace it with? Scroll down a bit for an elaboration.

Finding flaws in the justice system is as easy as finding weeds in my lawn, and not just in malpractice. However, I don’t want to pave over my lawn. I want to do something to get rid of the weeds. By comparison, I’m worried that with some tort reform proposals (though certainly not all) we may be paving the yard. This does not mean we should not try, all the time, to get rid of the negatives, especially in the malpractice arena, because the problems we have now are so grave. Nor will such a job ever be finished; there is no final solution to the “problems” of democracy, just constant, painstaking work and vigilance.

In looking over the proposals, I think (please feel free to elaborate) that people who want an alternative to our current (and historic) system of open jury trials want something like this:

– a finding of fact arrived at by experts
– a uniform punishment for those who are found guilty

Mostly we have been talking about who is *qualified* to judge. For a moment, let’s turn our attention who has the *right* to judge today. As citizens, we currently are allowed to sit in juries, and we have the right to vote our conscience on whether someone is guilty or not guilty. It is not the judge or an expert who decides — it is us, the citizens. In America, the citizen is where the power resides, not the judge or the expert or even the lawyer with all his wiles. As a citizen, if the “finding of fact” system went wrong, how could citizens change it? In a jury trial, citizens have immediate and complete access to a remedy when one of their fellow citizens is unfairly charged with an offense. They can vote Not Guilty. In the “finding of fact” system, citizens have no immediate remedy, and may have to wait for thousands of cases to be adjudicated to fix a problem through their system of representative democracy (by changing the laws affecting the “finding of fact” system). Given Dave’s accurate summation of jury trials not being reproducible (he’s correct), the question is, what is scarier — shifting power, including the ability to judge, by people who have rights and powers beyond those of the average citizen, or being judged by the average citizen? Everybody’s going to go their own way on that one, and I think at that point it becomes one of those intractable arguments, like whether or not you like big government or small government, and which is better. People rarely change their mind on that type of issue, and are entitled to a firmly held belief in that regard.

I think the “finding of fact” system could be entered into by private parties today as a form of binding arbitration. I wonder, if I were presented by my HMO with a contract saying, “As a condition of your insurance, you may not sue your doctor but must instead submit to our binding arbitration/mediation process” would I sign it? Would I be better off if I did? I might (maybe) be better off as a patient, but maybe not better off as a citizen.

I have respect for all of you and have tried my best to be entirely respectful of your opinions in this post; I assume I will receieve the same treatment from you in return. Good luck hashing it out — I’ll be on vacation, and hopefully I won’t need the services of either a doctor or a lawyer! I will leave that envelope marked “Bail” with my husband, just in case.