Medical malpractice, or malpractice of any kind, is simply failing to live up to the minimum standard of your profession. Surely no doctor in this forum wants to argue that there should be no compensation for victims of incompetence. Lawyers are subject to malpractice suits as well, though they’re not as common. It could be argued that without the threat of a malpractice suit the standard of care would decline in all professions.

If it’s not an argument about the validity of malpractice suits, then is it an argument about the method of finding truth in a trial? Do doctors want to abolish the adversarial system? It seems that doctors benefit as well from having their position represented at court. I’d be interested in hearing what kind of alternative there is to adversarial litigation that would achieve better results. Laws, after all, change if they are shown to be ineffective. Isn’t that what’s happening now with tort reform?

TankerJD brings up a good point (he’s a lawyer, after all), questions of law can’t be solved with the scientific method. The purpose of law is to achieve social justice, and it does that by listening to every point of view and following the most compelling argument. Neither the judge nor the jury can independently know anything about the case, they can’t experiment, or test hypotheses. All they know is what they’re told. If the doctor has some experimental means of scientifically showing that he was not negligent, then I’m sure that that would carry a lot of weight with the jury as evidence.

It seems that the only remaining issue is that of excessive litigation. If doctors agree that incompetent medical service is worthy of legal sanctions, and that they are given adequate opportunity to present their arguments at court, the only problem that is left is that of people who received adequate medical attention, yet sued anyway. In other words, what do we do with “fakers”.

It’s not clear that this is even a legal issue, however, but a social one. Should lawyers refuse service to people who claim to have been victims of negligence, but are possibly lying? If they should then that raises a serious issue with equal protection under the law. The client doesn’t even get a trial if his own lawyer acts as judge and jury before accepting his case.

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?

I worked for a bit at a frim that did med mal defense. We had an associate who had been a surgeon. His eyes went bad, and so he couldn’t see to operate. He took disability insurance and went to law school (he could still see well enough to read).

The law is trying to get at “truth.” The problem is that often the “truth” being sought is not the reason for some phenomena in the phyisical world, but is rather what someone was intending to do at the time they took a certain action. In other words, the difference is between an objective truth, which can proved one way or the other simply by observing and measuring physical thing, and a subjective truth, which cannot be proved by such data.

But that doesn’t mean that there isn’t an exclusive truth to be found.

Both sides use logic (did the one poster who said lawyers use “pure logic” mean to suggest that physicians don’t use logic to arrive at their conclusions?). However, when you have physical data, you can restrict yourself to one mode of logical reasoning, specifically deductive reasoning, to arrive at the truth.

The law, however, requires the use of inductive reason, b/c for many of the questions we have to answer, there are no measurable quantities. Human intent cannot be quantified, but that doesn’t mean that humans act without intent. So, we have to look at the circumstances surrounding an act to determine what the intent of the actor was.

Say A shoots and kills B. That fact can proven with objective data: we have a gun, and a bullet and fingerprints and powder and a wound in B’s body going through the heart, and maybe videotape and eye-witnesses, yada, yada, yada. So, we can prove to any physician’s (or any scientist’s) satisfaction that the truth is A shot and killed B using the mode of reasoning they are used to: deduction. We take specific bits of data, manipulate it with logic to arrive at a different, specific truth.

However, when we put A on trial for murdering B, it is NOT enough to simply prove that A shot and killed B. The law requires us to ask WHY did A shoot and kill B. Did A shoot B in self-defense? If A claims so, was A “reasonable” in believing that B posed an immenent threat to A? Did A want B’s money? Was A jealous of B for cheeting on A? When did A decide to shoot and kill B? Just a minute before hand? Or two days ago?

To prove different types of homicide, we may have to prove or disprove answers to these questions. And there is ONE true answer. A either decided to shoot B one second before he shot, or A decided to shoot B at some earlier time. But, how do we know?

So, I ask the doctors here (in a case not involving med mal, so their tempertures go down), how would you arrive at the “truth” of whether A intended to murder B using only objective data and deductive reasoning?

The law realizes that you can’t. So to determine such things as intent, the law looks at all the circumstances surrounding A and B. When did A buy the gun? Of course, just b/c you buy a gun doesn’t mean you intend to shoot anyone, but it’s “probabtive” of A’s intent. What was A’s and B’s relationship? Etc., etc. Then, we ask people to add up all the little bits of evidence both sides have, and to apply inductive reasoning — i.e., apply generalizations about how people act to the specific conduct of A to determine what A was thinking when he pulled the trigger. You can’t just ask A, b/c A probably won’t give you a truthful answer (and he has a right not answer).

Scientist are people that want to be able to describe physical phenomena with observed data, and get frustrated with the idea of probability. For scientists, every proposition is true or not true, and can be proven one way or the other.

The law however must deal with uncertainty and probability, b/c we don’t yet have the technology of the “minority report” to read minds. Most legal assertions can only be proven to a reasonable certainty or probability, b/c when you introduce human behavior to a situation, you get endless possibilities.

That’s what I see as the big difference. Scientist don’t like to deal with the uncertainty of human behavior; and so bury themselves in labs to find answers that are 100% provable, and then decry as “simplistic” or “medieval” people that can intellectually handle probability and uncertainty.

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.

Physicians are from the scientific revolution, lawyers are from the middle ages.

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.

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.

You never read them in the first place. I’ll start them from now on with “AIG says. . . ” I’m sure that will pique your interest again.

Owlish, of course you have. I’m sure you read all the records in each of those cases and are more than qualified to render an expert opinion on them having reviewed.