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If doctors agreed on standard practices, lawyers would have little to argue over



Published: Sat, January 22, 2005 @ 12:00 a.m.



EDITOR:

Life is filled with unusual experiences, and I have just had one. In my 59 years, I have never served on a jury and never even been called to serve -- until now.

As luck would have it, I not only was called, but I was seated on a jury as an alternate -- so I had all the wonders of a trial with none of the responsibility. And in keeping with this vein of good luck, it was a medical malpractice suit -- a subject on which I have many strong opinions.

Apparently strong opinions or even potentially strong opinions are not welcomed in the jury box. The lawyers did everything in their power to exclude anyone who was not malleable to their cause. This is euphemistically called jury selection, but in reality it is jury stacking. It gave me an icky feeling and enhanced, rather than diminished, some of my biases.

Once the jury was seated it was admonished by the judge to be objective, limited and secretive. He was basically telling the jury that they must follow the law regardless of how bad the law might be. I am a firm believer in jury nullification -- within reason. I was an unwelcome addition to this jury, but at least I was just an alternate.

As a medical malpractice case, it was simple enough. A doctor failed to diagnose the onset of a heart attack. The patient died as a result of the complications from that attack. And the family was suing for just compensation -- say, as their lawyer so ineptly suggested, $400,000.

This highlights an important point. If you want to win one of these cases, get a good lawyer. It's all about presentation. I've been involved in several trials and next to bias, the most deciding factor was presentation. A strong case would also help, but a weak case with a good lawyer is more effective than a strong case with an inept lawyer.

This case had it all: good lawyers, inept lawyers, crying relatives, befuddled doctors, expert witnesses, contradictory testimony. I boiled down to what the doctor was required to do, what he was expected to do and what he should do. Therein was the solution to this case and, for that matter, to tort reform.

Now, I'm a lawyer basher by nature, but this case made it clear to me that tort reform is a medical problem not a legal problem. What the medical profession needs is a strong dose of standardization. With standardization, they (the doctors) could agree on what was expected and required and desired. And once they agreed, they could lobby the judiciary to accept that standard. Once accepted, judges could dismiss cases that didn't violate the agreed upon standard, no matter what some kook expert dug up by some slick lawyer might testify too. As is, few cases are dismissed because the only standard on which these cases are judged is that the plaintiff deserves his/her day in court. But that's a very costly legal standard.

What have I learned from all of this? First, my biases are still intact. The judges and lawyers will never solve this. It's their bread and butter. It's not about the insurance companies. If anything, they are the only ones trying to bring some standardization to the system. It's the doctors. They are their own worst enemies. They need to standardize their practices in the same way that Burger King, General Motors and Bank One standardize their practices. Once done, we would no longer need these costly Ad Hoc arguments over would of, could of, should of, in every courtroom in America.

THOMAS MASKELL

Poland




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