Our host confuses the Declaration of Independence with the Constitution. What you miss is the following from the Declaration:

“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
. . .
For depriving us in many cases, of the benefits of Trial by Jury:”

In answer to your question as to why I would oppose a specialized jury, I would respond that it is because there is minimal evidence that an ordinary jury gets it wrong very often.

Is our system perfect? Not at all, no perfect system exists in our mortal world. But when juries find for the health care provider, what, 70% of the time, how can they be considered too ignorant to understand what is going on?

We let juries decide life and death, why are they too stupid to understand when a physician makes a mistake? Can they not comprehend the arguments of the defense? They comprehend complex commercial litigation cases all the time.

You say our current system resembles a lottery, but that’s mere hyperbole. A lottery merely requires one invest a dollar or so for a shot at a million. No medical malpractice case costs the plaintiff’s lawyer a mere $1. And I’ve yet to see any victim of medical malpractice who has a case worth a million dollars who wouldn’t rather have their health.

And you seem to denigrate “heartfelt appeals”, as if this were all just cold science. Well, the loss of one’s child isn’t just science. The loss of one’s sight, ability to walk, or ability to work is not just mere science. Who better to understand the cost of that loss than 12 ordinary people?

In short, you’re advocating gutting a system that has worked, and continues to work, for 200 years, simply because some insurers are squeezing their customers.

And for what? According to the insurers, absolutely nothing. They have not promised a single physician a single dollar of savings.

Given some how doctors treat other doctors who merely testify for plaintiffs in malpractice cases, no matter how egregious the underlying malpractice, no… I can’t say that I would have any real confidence in the “all doctor jury”. You ‘hate’ malpractice law, you ‘hate’ malpractice lawyers, you ‘hate’ malpractice juries, but… you don’t seem to hold any particular animus toward doctors who commit butchery on their patients. None of your “reform” proposals seem to be aimed in their direction.

And I simply don’t think it is realistic to expect that “specially trained” laypersons and judges will have any significantly heightened grasp of malpractice issues – how would this training occur, and how would achievement be measured? For example, there was a recent execution of a guy convicted of arson, despite what are now agreed to be horrendous mistakes in the investigation of the fire scene. A state expert described the errors as follows: “‘At the time of the Corsicana fire, we were still testifying to things that aren’t accurate today,’ he said. ‘They were true then, but they aren’t now.’” So here we have a state-trained expert who apparently believes that the laws of physics change from decade to decade. Or take another high profile case in Detroit, where a state police lab technician – a “chemist” – was asked if he had tested a flashlight allegedly used to beat a suspect for hydrogen peroxide. No, he hadn’t. Did he check to see if there was a test for hydrogen peroxide? No, he hadn’t. Do I need to explain that a chemist, offered by the state as an ‘expert’, should at least have a “high school chemistry” grasp of the chemical composition of hydrogen peroxide, and that he should have been able to reply that it would be indistinguishable from water? Again, folks – state trained, state paid expert witness here. Do you think the training standards for jurors will be higher?

And your citation to law…. that would be to the Sixth Amendment. Scroll down just a little bit more – to the Seventh Amendment. Does that make things more clear? Now consider we’re also speaking of state constitutional provisions, and many states also offer guarantees of jury trials in civil cases.

I would encourage our generous host to review the Constitution’s VII Amendment:”In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Not yet repealed.

Let me add one other thing. What is going on right here is exactly what the insurers want. They want two of our more esteemed professions at each others throats. They want us cutting each other down with horror stories of huge verdicts and gruesome malpractice, which we’re all ably equipped to do.

What they don’t want is for someone to look up and say: Wait a minute, what are we doing this for? What are we gaining from it? You promised us lower premiums in the 70s if we enacted caps – it didn’t happen. Then in the 80s, same thing.

Now you’re implying (but never promising) that if we gut the ability of those injured the worst to recover from you, that you’ll give us reductions. Yet the largest carrier of med mal insurance has said that damage caps will do little. Your own trade magazines say the current “crisis” is due to underpriced premiums in the 90s.

You tell us that every lawsuit that is filed causes our premiums to go up, even if we don’t have a claim? That doesn’t make sense. You tell us how much you’re losing over the past couple of years, but don’t tell us how much you made over the last couple of decades.

That is what’s going on. We’re all being used in this and for what? So insurance execs can get that second home in Aspen?

Daniel,

You clearly don’t understand the standard for proving liability in a medical malpractice case, which makes me wonder if you’ve ever seen a trial? Have you? You have to remember that juries find for doctors far more than against them. Not every dead baby case is a winner. And what’s more, a dead baby case generally doesn’t result in as great a damages as a live, impaired person.

You also don’t understand the economics of the plaintiff’s side of medical malpractice. Here’s what usually happens. Client comes in with a complaint. Lawyer makes an assessment if this is just unhappy results or there is a possibility of malpractice. If lawyer thinks there might be, they gather clients medical records and send to a consulting expert. Not a testifying expert, just someone to review the file and see if they think there is malpractice. Why do they do this? Because there is no sense in pouring tens of thousands down a hole if there is not malpractice and the lawyer is not qualified to say if there is.

Lets say there is. The lawyer must then find a testifying expert who will testify that the actions of the physicians were below the standard of care for that area. In other words, someone in rural South Carolina is not held to the standards of a doctor at Johns Hopkins. Again, another very expensive hurdle because doctors generally won’t testify against each other regardless of the malpractice, and those that do are pariahs.

The lawyer then has to survive a challenge to his expert by the very well funded and just as prepared defense. If they get by that, and actually get to a jury, they must then convince 12 jurors, people who are voters in the community, many just like you (after all 51% of the potential jurors voted Bush) who have the same skepticism. And jurors who more often than not find for the doctor.

Lets say the plaintiff wins. They must then withstand the appeals process, where the defense gets yet another shot to argue that the plaintiff’s burden was not met. And remember, throughout this time the lawyer has fronted tens of thousands of dollars in costs, and years of his time, and the plaintiff has done the same.

That’s why, when you call this a lottery I have to say that you have no clue what goes into it.

Now, as for doctors having their careers erased by a court, that makes no sense. The majority of payouts by insurers come from a small percentage of doctors. Doctors who continue to practice.

As for your claims of no doctors, the CBO has investigated those claims and found them either unsubstantiated or existing in places that have always had trouble retaining physicians. But that’s an INSURANCE issue, not a problem with the jury system. Again, look to the insurers themselves, this is neither a new problem nor will they tell you it will be alleviated by caps.

Thank you for the Wade cite. Of course, that is against a hospital, not a single physician. Here’s the only blurb I could find on the case:

$55 Million
Zakyra Hall, by her next friend Keisha Wade, v. Henry Ford Health System
Wayne County Circuit Court
Medical Malpractice
Despite many trips to the emergency room and clear signs, doctors failed to intervene to prevent a child’s respiratory arrest. Believed to be the largest reported medical malpractice verdict in Michigan history.”

Do you know anything further about it? For example, was the verdict knocked down on appeal? What did they ultimately settle for?

“Because they are inevitable. But helping the injured need not hurt society.”

I agree. But what does that have to do with damage caps, which the insurers themselves say won’t lower insurance rates?

And you repeat again the “careers burned to the ground and peers fleeing the profession.” Yet you have no statistics that support this. In fact, all the evidence points the other way. Doctors do not do a good job of policing their own.

Now you’re up to $100 million awards? Against a physician? So far you’ve found one $50 million jury award against a hospital, and you know nothing about the facts of the case other than what I just posted.

But again, what does any of what you posted have to do with the proposed tort reform proposals? How does capping damages solve any of your alleged problems? The short answer is they don’t – and if you don’t believe me, look at what the insurers themselves have to say. All your proposals do is harm those most grievously injured.

And how do you get around the even thornier issue of federalism? Are we even throwing that principle out in the name of protecting insurance companies?

If there are problems, lets propose solutions that address them. Lets not gut our jury system every time insurers put the squeeze on someone. There is no constitutional guarantee that insurance companies should always be profitable.

All this talk about jury trials being enshrined in the Constitution seems at variance with the fact that some states have had tort reform for years and have survived appeals.

Are the courts in those states not aware of this right to trial by jury? I would assume the laws have been appealed to state supreme courts, how about Federal court?

States that have had these laws on the books for a long time, like say, California and Indiana…..I find it hard to believe that the laws have not been appealed as far as can be appealed.

It seems undemocratic that two different juries can award widely varying amounts for pain and suffering in cases with similar sets of facts. Why would someone’s pain or suffering be different in Montana than Alabama?
The tort system was designed to provide economic redress for injuries as a result of neglience, not to exact retribution, yet the medical malpractice attorneys who advertise in Florida continue to speak of “punishing bad doctors”.
It can be disputed that caps on pain and suffering have reduced the rates of malpractice premium increases. But it seems to me that we would have a more econmically efficient system if we had uniform pain and suffering awards, in addition to the estimated economic losses. Part of the cost of developing a case involves seeking expert opinions and deciding whether a case is economically worth pursuing. Knowing the potential outcome in advance could reduce attorney time, expert witness time and make insurance losses more predictable.
Of course this would have to be coupled with better policing of physicians by medical societies, and better supervision of insurance investments

The issue of doctors “leaving”. That got discussed in my state as well. Yes, the doctors often do not physically “leave”.

They are still here. What they do is order their lives to avoid the risk of malpractice. You might find it hard to believe, but doctors are human beings with lives and families of thier own, and they do not like having to fact the risk of losing everything they worked for on one case. I, and most doctors, don’t care if the risk is one in a hundred or one in a thousand or one in a million. I want zero. If I don’t get zero, I will order my life to avoid the risk.

The neurosurgeons start doing more spine work in smaller hospitals that do not accept trauma. Now they do not have to do emergency neurosurgery and face the medicolegal risk that goes with it. Same with orthopardic surgeons, especially the hand surgeons.

I’ve taken myself off pediatric call, nursery call, ICU call, I’m working on ER call generally. Happy enough in the office, and the various hospital work only increases liability, does not make my any revenue. As those in primary care will attest, it’s usually a revenue DRAIN for a primary care doctor.

I have seen area hospitals downgrade their trauma status over lack of doctors to cover trauma. At the level of specialty surgeons, one or two docs gone makes the difference.

Yes, the problem occurs in the areas traditionally hard to recruit in the first place. That’s called the canary in the coal mine. The problem in my area is starting to spread to the cities. They are getting inconvenienced, the rural people are being endangered. When the cities recognize the problem, if they magically snapped their fingers and fixed the problem instantly, the rural areas would still face the problem of recruitment, it will take a decade to recruit the people driven out.

I’m seeing it in my area already, as I’ve had my own problems with getting emergency specialty care for my patients. Had to deal with a frantic, crying mother on that very issue just a couple weeks ago for her child. I’d have had more sympathy were it not for the fact that tort reform got voted down a couple years ago. If the people don’t want tort reform, they get what they deserve.

A friend just described losing his doctor. The doc moved from direct patient care to “botique” work, with weight-loss programs, the low-risk cosmetic stuff you are seeing these days, and some executive physicals, etc.

That doc shows up on the statistics as still practicing. He’s just not practicine direct patient-care hands-on medicine.

Same as the neurosurgeon who stops doing intracranial work, or does it OUTSIDE trauma hospitals.

They show up as still practicing, but when you need emergency surgery, plastic surgery for trauma (as opposed to cosmetic plastics), etc., people find the doctor is not in.

Dear Dr. Dumbass,

You didn’t see the Constitutional right to a CIVIL jury trial in the Constitution? It IS the SEVENTH AMENDMENT!

No wonder you get sued. You don’t read to number seven.

Here it is all spelled out for you:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Death by “medical malpractice” is still manslaughter.

Injury through surgery as “medical malpractice” is still assault, possible mob-assault and even conspiracy to commit murder or inflict bodily harm.

The rule of law is based on perspective nowadays,
and the rule is that the law be malleable.