Jury trials are wrong for malpractice cases

Opponents of tort reform publicize cases in which patients are severely harmed by bad outcomes of medical procedures, after which their doctors are exonerated of malpractice in a jury trial. (“Who benefits from tort reform?” August 10, 2013.) As we know, bad outcomes are entirely possible even in cases when the patient’s doctors do not make any errors or commit malpractice.

It is also very possible for a jury to issue an erroneous verdict based upon non-rational reasons. There is an industry of “jury consultants” who are retained by attorneys to profile and select jurors likely to err on the side of their client.

The answer to this problem has been developed in Great Britain and the many other countries where "loser pays" is the law of the land in malpractice cases.
Under “loser pays” tort reform, a patient who experiences a bad medical outcome should not be the party to pay the legal defense bills of the exonerated physician. We all wish to avoid the unfortunate situation in which a patient who has suffered physical injuries or some other form of harm is then subjected to financial harms as well. So plaintiffs’ attorneys and other foes of tort reform have been quick to publicize the plight of these unfortunate patients to influence public opinion.

 What usually happens is that a plaintiff attorney with a strong case will bring it to an insurance company for evaluation. The insurance company, in exchange for a contingency fee, will post the court bond that allows the case to proceed. The insurance company will have their own medical experts scrutinize the case carefully. They don’t want to post and lose a hefty bond on a frivolous lawsuit, but at the same time they don’t want to miss out on earning their healthy fee on a slam-dunk malpractice case. The medical experts who evaluate claims for the insurance companies comprise, in effect, an independent medical review system for assessing the merits of a malpractice case before it goes to court.

It is obvious that doctors on trial for malpractice are not receiving their constitutional right to be judged by a “jury of their peers.” The average citizen who is drafted for jury duty is completely unfit to judge the technical details of a malpractice case brought against a neurosurgeon or obstetrician. In fact, neither am I, and I graduated medical school and had 4 more years of medical training after that!

Only a neurosurgeon can determine whether another neurosurgeon committed malpractice. The same goes for every specialty. The answer is to replace jury trials with medical hearings structured like hospital morbidity and mortality meetings. Verdicts could be reached much faster and with much greater accuracy this way. Opponents who claim that this system would require a constitutional amendment should be informed that the constitution already promises us “a jury of our peers.” We just need a more fair and accurate definition of the word “peer.”

David L. Keller, MD

Redondo Beach, California