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View Full Version : Malpractice: The Stella Awards redux



Chuck Munyon
22nd July 2003, 14:38
My mom sent me this. All I can say is AMEN BROTHER!

The Best Course of Treatment
By PHILIP K. HOWARD

Lose-lose is perhaps the best way of describing the sorry state of justice in American health care. Doctors are going on strike and even quitting because of ruinous increases in liability premiums. Patients aren't doing so well, either: thousands die annually because of simple slip-ups, and no one seems to be able to revoke the licenses of inept physicians.

Congress failed in its recent attempt at reform, which would have capped jury awards for pain and suffering at $250,000. In truth, the bill offered only limited relief to beleaguered doctors, and was easy to attack as anticonsumer. Why protect doctors at the expense of victims of malpractice?

The demise of the bill capping damages is not necessarily a setback for the cause of legal reform. Instead, it is an opportunity to break free from the partisan stalemate and address the underlying flaws of a legal system that is out of control.

Doctors and patients aren't natural enemies. They've been driven apart by an unreliable system of justice that tolerates both abusive claims and bad care, breeding distrust on both sides. Studies about jury awards in health care confirm what every doctor fears — and every victim should fear: justice is random. Most doctors who make mistakes don't get sued. But most lawsuits are against doctors who did nothing wrong; the cases involve human tragedy but not medical negligence.

The common ground here is the need for reliable justice. For doctors, reliability would offer protection against baseless claims. For patients, it would provide victims with quicker compensation without the legal costs that consume almost half the awards. A system of reliable justice could also remove from practice incompetent doctors who often escape accountability now by threatening to sue their hospital or state licensing board.

Creating a reliable system of medical justice, however, requires changing one aspect of the system that is so ingrained it is hardly even part of the debate: the jury. Expert judges, not juries, must decide what is a valid claim.

Even modest legislative reform is routinely resisted as trespassing on the hallowed right to take every issue to a jury. But this right is generally misunderstood. In criminal prosecutions, juries play a critical role as our protection against abuses of government power. Juries are our defense. But in a civil case, where citizens can use the justice system as an offensive weapon, the most important social value is predictability.

Law is the foundation of freedom in part because it provides guideposts of right and wrong. But those legal guideposts don't exist unless judges make rulings on who can sue for what. Juries can't make consistent rulings of what is reasonable care and what is not. Juries have no authority to make rulings at all. Every case is a blank slate. It's yea or nay, and on to the next jury.

The Constitution's right to a jury trial does not require judges to abjure their traditional role of defining the boundaries of reasonable dispute. The role of juries in civil cases is to decide disputed facts, like whether someone is telling the truth. It is not to declare standards of care that affect society as a whole. That's why the Seventh Amendment qualifies the jury right as applying to "suits at common law" and ends by saying that "no fact tried by jury shall be otherwise re-examined . . . than according to the rules of the common law." Judges declare the standards of law that affect all of society; juries decide disputed facts in a particular case.

Today, however, juries are being asked to decide not only disputed facts but standards of medical care. How does a jury know how to do that? More important, how does a doctor know what standards to abide by? Every time a sick person gets sicker, it's easy to come up with a theory of what a doctor might have done differently. Chemotherapy didn't work, but maybe radiation would have.

Since the earliest days of the common law, there has always been a tension between what's a legal standard and what's a disputed fact. Until recent decades, however, this distinction didn't matter much to society. Social mores kept people from suing except in egregious cases. No longer. Now lawsuits are limited only by the imaginations of self-appointed victims and their lawyers. Drawing the line can be difficult for a judge, but not drawing the line transforms justice into a free-for-all.

Unreliable justice harms patients more than it does doctors. Pervasive distrust is causing a meltdown in American health care. Quality suffers as fear of lawsuits chills the professional interaction necessary for informed and humane care. Costs spiral out of control in part because doctors squander resources with unnecessary tests in order to build a record just in case they get sued.

A reliable system of medical justice could take many forms, but because the critical issue in virtually all cases is whether the doctor complied with appropriate standards of care, the key element must be expert judges ruling on standards of care. Specialized tribunals are common, in areas ranging from taxes to vaccine liability. A bill to finance pilot projects for special medical courts is scheduled to be introduced in the Senate later this week.

Defenders of the current system take pride in the fact that each case goes to the vote of the people. But that's not the rule of law; law that changes from case to case is the opposite of law. Shifting decisions about standards of care to judges from juries seems radical, but doing so is essential to restore a critical precept of American justice: that like cases be decided alike.

The victim of unreliable justice is society as a whole, not just doctors. That's why reform must focus not only on protecting one group with caps on damages, but also on achieving a reliable foundation of law for all.

Philip K. Howard is a lawyer and author, most recently, of "The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom."

Margaret Lo
22nd July 2003, 18:52
So the punitive damages cap is done for. Too bad but worth fighting for.

I don't know why anyone would want to be a doctor these days!! You guys have to strike more and make your absence really FELT.

M

A. M. Jauregui
22nd July 2003, 23:43
Thank you for the article Chuck.

It rings true on several levels for me personally: I have come across a horriblely inept (that still practices) doctor that mistook a massive bacterial infection that I contracted on my way back from South America as a cold, been on juries that felt it better to side with one side arbitrarily and get the case over with, and see wonderful medical doctors give up clinical practice to teach high school biology due to insurance costs.

(Luck for me I got a 2nd opinion and lived, helped the jury come to what I believe was the right conclusion, and had the doctor that gave up his practice as my biology teacher.)

Sapporo Ichiban
23rd July 2003, 05:06
Actually, the proposed cap was for noneconomic damages (i.e. pain & suffering) and not economic or punitive damages. Despite the flap, punitives are virtually never handed out by juries in medmal cases.

Also, I don't think that eliminating the jury is the answer to the medmal problem. Expert testimony (i.e. testimony by physicians who often reference respected publications) helps juries understand the standard of care. The standard of care is now largely uniform as you really don't have the situation anymore where different resources are available to a country physician versus a city physician.

I'll agree that juries have a heck of a time trying to learn medicine over a two week trial but, like Ana, they generally pay attention and do their best. And the same difficulty for juries holds true for forensics in murder trial, engineering in a products liability trial, etc.. The only other alternative to the legal system is to have the medical community regulate themselves and that, I think, would be a mistake. It ain't perfect but I can't think of anything better.

Chuck Munyon
23rd July 2003, 14:00
The author's proposal is certainly not to eliminate the jury, merely to allow a judge to determine which cases fall within the perview of common law. This happens all the time in criminal court, and the problem with our civil trial system is that there is no similar safeguard in place: anyone can sue anyone for anything. This is what has ground our courts to a virtual standstill and insured that no-one in any field will take any risks for anything.

Vapour
23rd July 2003, 16:15
If you let judge to decide on matter of facts, it will certainly make the outcome of any court case very predictable.

Jury is far easier to manipulate by clever argument and hand-picked expert witness than by judge who has seen 1000s of the similar case. Unfortunately, it is trial by jury is a constitutional right in common law countries.

My country don't have punitive damage system but I personally think it's a good idea.

Sapporo Ichiban
23rd July 2003, 22:21
First, despite what we'd all like to believe, judges are not unbiased. If you know anyone ever sued for malpractice, listen to what that person's attorney says; I guarantee you that he'll fight for venue and he'll tell you which judges he'd like to appear before and which one's he'd rather not. Those preferences have nothing to do with whether the judge is pretty or handsome--they stem from experience dealing with judges' biases. Just look at our U.S. Supreme Court. Some of the best legal minds in the nation but certainly not unbiased.

Second, the criminal system is completely different from the civil system. Criminal means the State is going after you. Me versus the United States or Me versus the State of Michigan is of much greater consequence than Me v. Joe. Because of that imbalance of power, that's why crimes are codified and that's why there are greater protections afforded in criminal cases. A civil case is just a dispute between two individuals. I can't see what there is for a judge to rule on in malpractice cases that they don't already rule on.

Third, I'd hesitate to say that the legal system is inundated with frivolous malpractice cases. Plaintiff attorneys in malpractice cases work on contingency. That is, if they don't collect any money for their client, they don't get paid. What's more, if they retain the services of others, they actually lose money. If you were a plaintiff attorney working on a contingency basis, would you take cases you thought were meritless? Would you waste your time and money? Just remember that it takes a lot of money to gear up for even a relatively short trial.

Fourth, the standard of care is set by physicians depending on advances in medical science. Is a judge going to have a better understanding of medicene than a practicing physician? I really doubt it. Moreover, when a malpractice case goes to trial there is always another PHYSICIAN sitting with the plaintiff in support of his/her case. If there were no real dispute about a violation of the standard of care you'd be hard pressed to find a compelling expert witness to support your claim. You could always put a 'yes man' in the chair but the defense would point to his history of testimony and destroy him.

Fifth, the legal system we have now hasn't changed radically in recent years. So is it likely that it is the legal system that is causing the recent problems to the medical community? Or is it more likely that it is something else? Personally, I think it's a combination of factors but the legal system, in my opinion, isn't one of them.

Chuck Munyon
24th July 2003, 02:37
Richard, you're confusing "a case with merit" with "a case a lawyer thinks he can win." With the size of the payouts these days, lawyers look for cases with an element of human tragedy and then count on the newly evolved American belief that SOMEONE should pay for everything bad that happens, whether or not its really their fault. It's psychologically compelling to belive that bad things happen because of bad doctors rather than that bad things happen arbitrarily or, worse yet, because of our own habits; it makes us feel less vulnerable. With the size of the payouts nowadays, a lawyer can afford to take cases that are in question because all they need to do is strike gold on one and they can write the rest off.
As for defending physicians having expert corroboration, yes indeed they do. And the plaintiff can ALWAYS find another doctor to argue that standard of care wasn't met. The fact is that EVERY medical procedure carries risks. Even the best doctors lose patients. Babies are born with mental or physical deficits and it is not the doctor's fault, but again, a jury would rather blame SOMEONE.
As to it not being the legal system at fault, the changing legal climate has essentially destroyed the practice of obstetrics in America, and it's starting to kill emergency medicine, too. It's not that the legal system has changed, it's that the way people use it has changed.

Sapporo Ichiban
24th July 2003, 05:08
Hi Chuck:

I'll agree that juries (not the legal system) are more likely to hand out much larger awards then before. But as far as plaintiff attorneys looking for sympathetic cases--that's always been true. And no attorney is going to last very long by pressing frivolous claims and merely hoping they'll 'land the big one.' I mean, how many shoulder dystocia cases are there out there anyway? But the way juries respond has nothing to do with the legal system. The system functions the way it always has; I just think the glory days of being a physician--when docs held universal repsect--are on the way out (just as they're gone for bankers and lawyers).

Also, I still have a fair amount of faith in juries. Traditionally, defendant physicians win about 66% of the time and that has not really changed. Sure, there's a lawyer doing his best on one side but there's also another lawyer doing his best on the defense. Go sit in on some medmal trial in Philly sometime (I know you've got to be busy with med school but maybe when you have a break). Juries may be filled with a lot of elderly, unemployed, or housewives/husbands but that doesn't mean they're stupid. They generally take the responsibility seriously and come out 'right' more often they you might imagine.

Final caveat. I've got nothing against doctors--my dad and most of my aunts and uncles are doctors. My mom was a nurse. I've spent most of my short career working for a medical malpractice insurance carrier (i.e. the good guys). Never experienced bad medical care in my life. But I've no illusions about physicians. Smart--generally yes. Well trained--generally yes. Don't make mistakes--everybody makes mistakes. Based on my experience, doctors usually win the cases they should win.

Joseph Svinth
25th July 2003, 04:15
An alternative model is reforming medical care altogether. I doubt this will happen, though, as the legislature is run by lawyers, and lawyers typically prefer gambling on million dollar pain-and-suffering settlements to eking a living nickel-and-diming $35,000 permanent partial disability settlements.

tmanifold
25th July 2003, 04:56
I have a real problem with the way civil cases are operated these days. One problem I have is civil cases against people who have already been found not guilty in a criminal case. To me that is just a cheap underhanded way of getting around the "double jeapordy" rule. The other is the focus of that article. Juries made up of Cleatus the slack jawed Yokel, Martha the unemployed mother of 7, Dan the air conditioning mechanic, John the 60 year old retired assembly line worker, etc. are not equipt to accurately debate the law and in particular the intricacies of case law. In a Criminal trial it is is a little different. If the prosecution does not remove all reasonable doubt then they must aquit. In a civil case it is a lot different, all the plantiffs lawyer has to do is convince a jury he is "probably right". For uneducated people, undereducated people or even people who are just un- or under educated in that particular feild, it is impossible for them to make a educated desicion. With out the ability to make an educated decision juries are unable to render true justice.

For a malpractice suit wouldn't a "jury of their peers" really consist of other doctors? I can see problems with that but atleast they would be able to make an educated decision.

Sapporo Ichiban
26th July 2003, 00:24
Hi Tony:

I also don't like it when civil cases effectively mirror a criminal trial (poor OJ). But I don't think many civil cases have that dual nature.

About Juries:
As far as understanding law, juries don't review caselaw or make any legal decisions. The judge tells the jury what the law is and what they are there to decide.

Similarly, in regards to medicine, both sides in a malpractice trial go to great lengths to make sure the material presented is clear to a layman (think of it like a medical student taking a new class--there's someone there walking them through a new subject). Juries aren't sitting there saying "well, I personally think a hysterectomy should have been performed at this point to stop uncontrolled bleeding." You're right, they don't know squat about it and they can't come up with that on their own. In practice, the jury listens to other doctors take the stand and give opinions about what was/should have been done. They believe the side with more credibility (physicians who are better educated, with more experience, who can support their statements with treatises or medical literature, etc.).

The only thing I don't like about doctors directly (i.e. not through the witness stand) ruling on other doctors is that I don't think they can be objective when dealing with colleges. Kinda like why didn't the board of directors of all those companies do something when their CEOs told their CFOs to fudge the numbers? Because they have dinner together occasionally? Because Joe's aunt knows Mary's brother? Because one day I might need a favor? Who knows. Or worse, lets say a new cardiologist comes to town to set up practice, he gets sued, and at his trial all the existing cardiologists in town are there to evaluate him. Ideally, they'll be fair but what if the city is flooded with cardiologists and these old guys are close to retirement and are businessmen first and professionals second? Goodbye to new cardiologist. Just because of human nature, I don't think anyone (police, doctors, lawyers, meatpackers, etc.) does a good job self-regulating.