Comments on: The Founders and civil justice reform

By: Ted

Ted — Wed, 10 Jan 2007 06:42:53 +0000

That’s exactly why I use terms like “reform opponents.” Stephanie Mencimer, Center for Justice & Democracy, Drum Major Institute, ATLA, and countless academics and politicians conflate the issue of medical malpractice and medical error by referencing the Institute of Medicine study to falsely claim that “malpractice” kills tens of thousands of people a year.

By: Matt

Matt — Wed, 10 Jan 2007 00:26:56 +0000

“In the debate over medical malpractice, one regularly sees reform opponents argue that “medical malpractice” consists of any “medical error.” ”

One certainly does not see very many of the lawyers that try these cases make this mistake. But I guess that’s why you use terms like “reform opponents”. Any attorney who actually handles these cases knows very well that what you describe is not the standard.

By: John

John — Mon, 08 Jan 2007 15:16:02 +0000

There is substantially more to proving med. mal than A, B, and C.
For example, proving causation between the mistake and the ultimate injury, intervening circumstances, etc., etc.,
That’s why specialty juries may be a good idea. The problem though, is who comprises the special jury…doctors who own/operate/fund their own insurance agencies?
Attorneys, whose own biases and convictions may be far deeper and more dangerous to unbiased decision making than any lay person?
Or, perhaps we should have an aptitude test during jury selection…all the smarties decide the doctor cases and the dummies can go deal with the criminal cases?

I would love to hear more on the idea, but I still like the idea of 1)increasing the pleading requirement of med. mal. cases 2)requiring sworn expert testimony to be included in the initial pleading and 3)approval of the initial pleading by a small, qualified, and uncompensated (for this specific function)panel of medical AND legal experts.

By: Justinian Lane

Justinian Lane — Sat, 06 Jan 2007 13:00:35 +0000

David, perhaps you could either clarify “c” or add “d” stating something to the effect of, “Find some doctor somewhere willing to testify that the bad decision was a proximate cause of the injury.”

By: Tom T.

Tom T. — Sat, 06 Jan 2007 12:50:42 +0000

Ted, I get your point better now. Thank you for clarifying. And apologies for being snarky.

By: David Nieporent

David Nieporent — Sat, 06 Jan 2007 02:21:54 +0000

Tom, it’s only inflammatory if you read it out of context, as an attack on lawyers. Knowing Ted’s views, I think it’s clear it’s not; it’s an attack on med-mal standards. All you need to do as a plaintiff in a med-mal case is (a) have a bad outcome, (b) find an instance where the treating doctor made a decision which could have been made differently, and (c) find some doctor somewhere willing to testify that it should have been made differently.

Well, (a) in every lawsuit there’s a bad outcome for someone, and (b) lawyers have to make tons of strategic decisions in every case. Remember, it’s not just big decisions — it’s every decision. Take depositions; you don’t think that every deposition features at least one question that should have been asked and wasn’t, or that shouldn’t have been asked and was? You don’t think you can find a lawyer somewhere who would say, “I would have made a different decision here”?

(For further evidence, look at death penalty litigation. Anti-death penalty judges can ALWAYS identify errors made by the defense attorney. Have you ever seen such a judge say, “This lawyer made no mistakes whatsoever. It was a flawless representation from start to finish”? Even the pro-death penalty judges rarely make that argument; they just rule that the errors were harmless.)

By: Ted

Ted — Sat, 06 Jan 2007 02:13:30 +0000

In the debate over medical malpractice, one regularly sees reform opponents argue that “medical malpractice” consists of any “medical error.” (For an example, see plaintiff attorney Lee Tilson’s comments in yesterday’s post, or any law professor who cites to the IOM study as evidence that more malpractice liability is needed.)

“Medical error” is defined as an avoidable adverse result. If “avoidable adverse results” are malpractice, then, yes, the majority of lawyers are guilty of malpractice: 50% lose any litigation, a good portion of the winners fail to achieve 100% of their clients’ desired results, and I’m quite confident that scrutiny plus hindsight will find mistakes that arguably adversely affected clients’ results, especially if results include “legal expenses.”

I admit that the formulation in my comment that I quoted in the post is ambiguous, though. If I had spent more time being precise, I would have written, “If lawyers were required to be held to the same standard that many reform opponents seek to hold doctors, it would be possible to bring colorable causes of action against litigators in the majority of the cases that they try.”

By: Tom T.

Tom T. — Sat, 06 Jan 2007 01:24:51 +0000

“If lawyers were required to be held to the same standard as doctors, the majority of lawyers would be guilty of malpractice.”

I largely agree with Ted substantively about special juries. However, since this post is about argument style, I can’t help but note that the sentence quoted above is an inflammatory, unprovable assertion that really has little or nothing to do with the topic of special juries.

By: roy

roy — Fri, 05 Jan 2007 22:30:07 +0000

re: “peers”

The US Constitution says nothing about peers. It’s “impartial jury”.

By: yclipse

yclipse — Fri, 05 Jan 2007 21:52:18 +0000

The constitution does not mention a jury “of [your] peers”, I’m sorry to say. It simply provides guarantees a trial “by an impartial jury of the state and district wherein the crime shall have been committed”.