Lawyers are from Uranus.

(It had to be said.

Interesting that you would accuse the lawyers of “sophistry”, when every fact out there indicates that it is physicians and their insurers that are misleading the public. Doctors aren’t retiring in droves, claims are flat or consistent with population growth, payouts are consistent with medical inflation or declining, the number of cases being filed has remained consistent, this is the third crisis coinciding with an economic downturn in the last 30 years, and states with “reform” also underwent a “crisis” in the last downturn. There’s your data, yet you choose to ignore it. Is willful blindness not as damnable as sophistry?

As for not finding the truth, are you arguing that a system that finds for the physician 75% of the time is not truthful? What percentage, in your mind, represents “the truth”? Again, there’s the data you choose to ignore. Where is the truthful data that your beloved health courts will get it any better? Do you really believe that these will be the epitome of perfection and you won’t be able to find the same anecdotal evidence from your health courts?

The best proposal out there has been the one used in some states that requires a screening panel pre-trial, and if they say no, then if you proceed you pay the costs of the other side if you lose. Where is the national advocation of that idea? You have all this high minded talk about a better way, but really, the only thing being seriously proposed on a national level is caps and allowing periodic payments of damages. That’s it.

The truth is you’re frustrated and angry about the direction healthcare is going. The cost to everyone of everything is going up but your reimbursements are going down. So you’re lashing out. A few industries recognize your frustration and channel it into helping them. But they’ve promised you nothing in return. You think you’re getting even with the evil lawyers. Really though, who you’re hurting are those already living with a life altering injury, as any injury worth $250,000 in noneconomic injuries would be.

The thing is though, a talented med mal trial lawyer will always find work. If you can handle cases as difficult as those successfully, you can handle any trial practice.

So all your frustration with the current state of healthcare is being dumped on one group of people who have already suffered enough. And what do you get for dumping on them? Not higher reimbursement rates, not cheaper insurance, not a better doctor/patient relationship, just the mistaken impression that you’ve stuck it to some lawyers.

Bull. The Truth is I know of too many malpractice cases in which the doctor did nothing wrong, there was a bad outcome, and the sympathetic jury felt someone needed to pay.

Hmmm…as a lawyer in training and one who knows several docs I’m familiar as well with this contentious issue. The legal system is not capricious, and of course, neither is medicine. I think that a large part of the disagreement arises from the issue of what truth means to both fields. In medicine, that is generally one of metaphysics, in law it is primarily one of conduct. The two cannot equally be reconciled without completely revisiting the way we assign value/quality to things…Good post.

Curious JD’s post starts by saying that “the adversarial system is built on finding the truth.” Indeed, the second paragraph equates the result with truth (thus ensuring its success) and the third says there is more than one truth (so it can’t possibly go wrong, even when no decision is reached).

The number of times adversarial devices (tricks) have been used to obscure the truth in order to win a decision are too numerous to count. In the legal arena, winning is what counts, not truth. The lawyers reading this should ask themselves if they were to win a case by successfully maneuvering to hide or negate truthful evidence against their client, would they be considered successful? Would truth have prevailed, or even been discovered?

Medicine, and science in general, don’t allow for mutually exclusive truths (theories yes, truths no) and that is where the philosophical breech occurs. I do not believe that any system which allows mutually exclusive truths will have any credibility in the medical /scientific community or even in the lay community. Hence the general reputation of lawyers and the legal system in the lay community (not just the medical community).

I think the person who said that “the adversarial system is not designed to arrive at the truth, it is designed to arrive at a decision,” is much closer to the mark. Lawyers should remember that defining a decision as truth does not bestow credibility on it, nor gain it respect.

All would agree that the system isn’t perfect, but those subject to it would also agree that it is in need of serious reform. Lawyers have a huge vested interest in maintaining a system under which large sums of money are transferred from one party to another as a significant percentage is diverted into their own pockets. Do not look to them for help in creating a more fair and rational system.

In the interim, my position is to avoid the legal system whenever possible, and to the extent that I have, I consider myself extraordinarily lucky, not extraordinarily competent.

Maybe you’re right, Dr. B. I guess where the fields diverge is that as a scientist, you can test and retest until a “truth” is found. We don’t have that. We often have two parties who genuinely and reasonably believe that their interpretation of something is the truth. Be it two docs in a partnership that is breaking up, or the average fender bender. We don’t have the ability to go back in time and determine the “truth” if indeed a meeting of the minds ever existed. We can only let them tell their stories and depend on 12 other registered voters to decide which one to believe. Can you think of a better way? Criticism is easy, solutions are not.

Your statement that “if they were to win a case by successfully maneuvering to hide or negate truthful evidence against their client, would they be considered successful” illustrates a couple of misconceptions. First, that truth can be easily hidden. In the civil context, the other side’s position and evidence is an open book. The Perry Mason moment where the surprise witness or the surprise document is brought into court doesn’t happen. The only way truth is hidden is when clients destroy or alter documents (not uncommon in med mal cases with medical records) or lie on the stand. That is not the fault of the legal system.

In the criminal context, many get outraged when, for example, a lawyer succeeds in suppressing relevant evidence on the grounds of a illegal search. It’s a technicality, they argue. But it’s more than that, it’s a punishment on the state for a violation of an individual’s constitutional right, no matter how repugnant that individual may be. Is it true that the person committed the crime? Perhaps, but the law, and indeed we as a society, have made a value judgment that the trade off is not worth it.

Yet you would call that an “adversarial trick.” If you took the time to actually read the Rules of Evidence, you’d see that the sole goal of all of them is to make sure that the evidence presented is as truthful and relevant as possible. But again, that doesn’t translate easily into a soundbite. Hell, the Rules of Evidence doesn’t even make for fun reading.

Your beef is with a system you admit you have no experience with. You only focus on a tiny percentage of cases where large numbers were involved, yet you know little of the underlying facts of the case. It’s akin to me watching Nip/Tuck and equating Christian’s lifestyle to all surgeons.

Let me ask a question of the physicians – tell me where the “truth” to be found is.

Yesterday I handled two cases where parents were in the process of a divorce and could not agree on custody pending the final divorce. So we had hearings for custody and visitation for the short term. Both involved caring parents on both sides, who genuinely believed they were the best person to have primary custody of the child. Both sides had their flaws, but were generally good people.

How does one decide the “truth”, as you define it in your arena, in those situations? How do we “test against reality”?

Another example: I represent a person who sold another person a house. They used a handwritten contract that they worked out. The interest rate is not clearly spelled out, and both have a different interpretation.

In these examples, is there a measurable, quantifiable, objective truth to be found? Can you go back and test the results “against observable effects”? No. Yet you seem to think that because the legal system can’t do these things, that it somehow is backwards.

It’s not about clever arguments, as anyone who has ever tried a case will tell you that trying to trick or get too cute with a judge or jury is about the dumbest thing you can do. The practice of law and law school are vastly different things, much as I imagine it is in medicine.

What law school does do is teach you how to appreciate the other side’s position and recognize the flaws in your own and deal with them. If you are actually going to practice law, you must be able to do that to be successful.

I’ve got it! Here it is, are you ready? The final answer to the medical malpractice mystery. Why do lawyers sue doctors? They say to protect the innocent and the vulnerable. We say to make money and a lot of it. They say, they are the only thing between the evil doctor/hospital and the patient, we would agree but not for the same reasons. They particularly enjoy being between the patient and the health care provider especially during emotional times. This makes the physician notably vulnerable and makes a jury receptive to the whims of a clever counselor when an “injured” client arrives at the courthouse. Every physician participating in the legal merry-go-round understands that it is nothing more than a game. Anyone who thinks of it differently, has not played.
We’ve tried reason, we’ve tried discussion, we’ve tried legislation. Although the number of lawsuits has fallen since our “cap” went into place, rest assured that they are retooling to re-enter with new rules.
Therefore, and HERE IT IS, THE ANSWER TO THE MALPRACTICE ISSUE. TARGETING PLAINTIFF’S ATTORNEYS. Yes, that’s right play the game the same way that they do, only to win.
Since we play the game on their field, with their equipment and their rules, we need to be better at the game.
MY PROPOSAL

PHYSICIANS AT THE LOCAL, STATE, AND NATIONAL LEVEL DECIDE TO TREAT LAWYERS LIKE THEY TREAT US.
EVERYONE KNOWS HOW THE LEGAL SYSTEM SHOULD WORK, YET MOST UNDERSTAND THAT THE GAME IS PLAYED TO WIN NOT TO BE “RIGHT”.
LETS FIND PLAINTIFF’S ATTORNEYS AND SUE THEM. LETS GO AFTER THEM WITH THE SAME REASONING THAT THEY USE ON US. IF A CASE IS TAKEN TO COURT AND IS LOST, THE PLAINTIFFS ATTORNEY MUST HAVE DONE SOMETHING WRONG. THEREFORE, THERE NEEDS TO BE JUSTICE SERVED AND THE ATTORNEY MUST BE EVALUATED TO SEE WHAT WENT “WRONG”. NOVEL IDEA, HUH?
IF EVERY PHYSICIAN IN A LOCAL AREA WAS TO PLACE A $1000 IN AN ACCOUNT A PLAINTIFF’S LAWYER WITH A PARTICULARLY BAD REPUTATION COULD BE SELECTED. A CLIENT COULD BE LOCATED AND A DISCUSSION CONDUCTED REGARDING THAT CLIENT’S PARTICULAR CASE. IMAGINE THE PROCESS THAT COULD BE STARTED. THE ATTORNEY COULD BE SERVED WITH SUIT, DISCOVERY STARTED AND LET THE GAMES BEGIN.
OF COURSE, THE ATTORNEYS WILL SCREAM TO HIGH HEAVEN. THEY WILL CLAIM THE ADVERSERIAL SYSTEM HAS TO BE DESIGNED THIS WAY. I ANSWER, YOU BETCHYA.
I’LL BET THIS APPROACH, PLAYING THEIR GAME WITH THEIR TOOLS ON THEIR TURF, ONLY PLAYING TO WIN WILL CATCH THEM COMPLETLY OFF GUARD.
FINALLY, I WILL BET THAT EVERY PHYSICIAN THAT READS THIS HAS A PARTICULAR LAWYER IN MIND. THAT IS PROBABLY THE ONE YOU WOULD SELECT. DO IT. LETS DO IT. LETS SEE HOW QUICKLY WE GET TO THE POINT OF SAYIN, MY FAVORITE CATCH-PHRASE “IT’S JUST BUSINESS”. I CAN SEE THE BILLBOARD ON THE FREEWAY NOW, HAVE YOU GONE TO COURT AND LOST YOUR CASE, IF SO, YOUR LAWYER WAS NEGLIGENT, SUE HIM CALL 1-800-SUE-THEM.

ANY INTEREST?

Once again, it appears to me that the argument over the need for an adversarial system of justice and the difference in perspective the attorney world and the physician world occupy, misses the point altogether. Let’s, for the moment, assume that the legal community is correct and that the current system of “fact finding” is the best way of determining truth. Let’s also conclude that the adversarial, not the compassionate art is a necessary component for a functional society. I say, we simply should learn to play the game as they do and sue, sue, sue.
Every time a lawyer takes a case to court and looses, sue him. Every time a client doesn’t get the outcome he/she disires, sue the lawyer, judge, jury, court filing clerk, and for that matter the system in general. We have plenty of time to sort it out over the next 3-4 years during discovery. Let’s clog the courts with lawsuits claiming bad outcomes. Let us agree for once that the system should sort it out.
Now, you say, we need a system that allows immunity for certain people who participate. I say, hogwash. We should make everyone vulnerable. After all, it’s just business.