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Medical Malpractice and the American Jury.

If Americans are rapidly disengaging from public policy, it may be because the debates on important issues throw off so little light. Take tort reform. Critics more or less slander everything about the judicial system. Defenders claim the system is nearly flawless. The rest of America knows there's a serious problem - what rational system would give a mugger shot trying to escape his crime S4 million? - but just goes numb.

One would hope that experts and scholars could illuminate the issues. But Neil Vidmar's Medical Malpractice and the American Jury illustrates how academics can perform a kind of inverse alchemy, combining lots of interesting facts and solid analysis into a product that obscures the basic problem.

Vidmar, a professor at Duke University, is actually correct in his specific finding. "Juries," he argues, "perform their functions reasonably well." This is amply demonstrated by the dozens of studies he methodically reviews over the course of some 300 pages. If Vidmar's goal is to show that the jury system is not the main culprit in a flawed judicial system, then he has proven his point: Jurors do not generally check their common sense at the jury room door. As a practicing lawyer, I would go even further: It's amazing that, in the vague and standardless world of malpractice claims, juries seem to get things right.

But Professor Vidmar's underlying premise - he's too careful an academic to ever come right out and argue it - is that medical malpractice reform is therefore basically unnecessary. The book's subtitle - "Confronting the myths about jury incompetence, deep pockets and outrageous damages awards" - practically rings with the news that there was never any problem. "The findings discussed in this book raise very serious problems for critics of the tort system," Vidmar concludes.

In fact, Vidmar's book tends to demonstrate the opposite. The system is unreliable, not because juries are incompetent but because of the claims themselves. Malpractice claims have a random quality that turns doctors into near-paranoids. Their reaction, in turn, has imposed a staggering cost on society.

Doctors, much more than other professionals, get sued all the time. (More than 50 percent of all obstetricians have been sued at least once.) Once the suit is filed, the doctor can look forward to five years or so of torture as lawyers second-guess every detail of what happened to the sick patient. Incompetent doctors love this interminable process: They can use it as a lever to settle out of court and never be held accountable.

But why you might ask, should any competent doctor have anything to fear? Look at the nature of medical practice. Medicine involves sick people, with the constant risk of a bad result for even the most conscientious physician. If a doctor leaves scissors inside an abdomen, or cuts off the wrong foot, malpractice is clear enough. More often, matters are murkier. Vidmar cites one insurance company that found 30 percent of its medical experts gave diametrically opposed conclusions or could not decide whether there was malpractice. Vidmar uses this evidence to suggest that experts are no better than juries. But something bigger is wrong. What kind of judicial system tolerates a one-third margin of error? We could never accept those odds in sending someone to jail. Why do we accept it in threatening the livelihood of the professionals we need to take care of us?

Of course, every lawsuit involves some uncertainty. But judging medical malpractice requires second guessing of dozens, perhaps hundreds, of subtle factors that go into a complex professional judgment. How does the patient look? How old is the patient? How strong? What is the family history? A recent study in the northwest concluded that, on average, AIDS patients did not survive as long if treated by doctors with limited experience with the disease. Should they all be sued?

If fault is an elusive concept, damages can be completely arbitrary. Vidmar observes that the large verdicts are relatively unusual. But what solace is that to a doctor when the process server strolls into the waiting room with a summons and complaint seeking $10 million? Doctors are sued not only for concrete damages, such as lost wages or the cost of remedial medical care, but for immeasurable items like "pain and suffering" and "punitive damages." Vidmar asserts that these unquantifiable damages have been available "for centuries." In fact, they were extremely rare until the last few decades.

And on what basis does a jury decide to sock it to a doctor? Vidmar reprints a juror's account of a malpractice case, involving a boy with a serious hereditary condition whose operation went awry for reasons that aren't entirely clear. The boy's life was saved by virtue of the heroic work of one of the attending surgeons, who, along with others, was then sued. The jury came back with a $26 million jury verdict for the boy, apparently because jurors were angry at defense tactics. Vidmar tells this story to illustrate jury deliberations arid to offer the comfort that the judge reduced the verdict to only $5 million. But the story better illustrates how impossible the system is to understand or predict.

Facing death, someone once said, sharpens the mind. The prospect of economic death sharpens doctors' minds in a way that costs the rest of us billions. Knowing that an honest mistake could cost them millions, doctors practice defensive medicine: They conduct extra tests, procedures, and operations mainly to provide a defense in a feared lawsuit. The accumulated costs of defensive medicine are hard to calculate, but the range has been estimated from $25 billion to more than $200 billion per year - that is, between 0.5 to 5 percent of the gross domestic product. At one New York hospital, an internal survey of doctors indicated that up to 25 percent of medical services performed were unnecessary or duplicative.

The total cost of medical malpractice suits in 1991 was $9.1 billion, only a fraction of the estimates of defensive medicine. Why this extreme over-reaction by doctors? They're not thinking rationally, Vidmar says.

But doctors aren't irrational. They're scared because they believe the system is random. Most people don't like to play Russian roulette, even if the odds of getting the bullet are only one in 200. Those are the odds of a test pilot, not a caregiver.

This doesn't mean I think doctors are perfect. But scaring them half to death is counterproductive. And the problem is only getting worse. Average malpractice awards rose 400 percent in little over a decade.

So what do we do? Doctors shouldn't be subjected to random and nearly infinite claims, and bad doctors do need to be held accountable. A trade-off is obvious: The medical profession should provide a vigorous mechanism for monitoring and disciplining doctors - the system now is almost nonexistent. In exchange, doctors should be protected against unreasonable suits and awards, with higher standards for liability and a limit on punitive and pain-and-suffering damages. Some worry that caps on damages would sometimes be unfair. what about the patient who has truly been wronged? There's a simple solution: Judges should have the discretion to waive the caps in cases of egregious malpractice.

Juries, as Vidmar states, generally do their job well. But the ultimate measure of a system of justice is not whether any individual component works well, but whether the people trust it to be fair and reasonable. By that measure, ours fails.
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Author:Howard, Philip K.
Publication:Washington Monthly
Article Type:Book Review
Date:Mar 1, 1996
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