Medical Malpractice Reform
doctor, heal thyself with an honesty implant
I did something interesting last month. I made a decision that involved hundreds of thousands of dollars or other people’s money. I didn’t want to. They made me. They drafted me. I was minding my own business, and they sent me a letter – You got jury duty! When I got to the courthouse, they sent me to a courtroom with a bunch of other people who didn’t want to be there.
The case was about a sickly-looking fellow suing two doctors. He was treated by these two doctors and they said he was cured, but a couple months later he got really, really, sick. Now he claims he wouldn’t have gotten so sick if these two doctors had treated him right the first time. It turns out he had a serious blood infection and he says he had it the first time and they missed it. They said he didn’t have any blood infection the first time and that the blood infection he had the second time was not their fault.
Well, what do I know about blood infections? Zip, nada, nothing. I heard from 10 doctors, all under oath. The two defendants were a vascular surgeon and a hematologist. They both testified and said they did nothing wrong. The plaintiff’s lawyer called her own vascular surgeon and hematologist, plus a cardiac surgeon and a cardiologist. The defense lawyer called four more doctors with the same specialties. All four plaintiff experts said the defendant doctors screwed up big time. All four defense experts said the defendant doctors did just fine. The two cardiologist experts both work at the same hot-shot University Medical School. They both said the other one was a fine chap and a great doctor. And then they both said the other one was full of crap in their opinions regarding the case. There were five or six interesting medical issues in the case and on each issue, the plaintiff doctors all saw it one way and the defense guys (and one gal) all saw it the other way.
Like I said, I know squat about blood infections. On a good day, I bet I could follow about half of what those doctors were saying. That’s a good day. By the third day of trial, I wasn’t having any good days. I was clueless. Following things logically was hopeless, so I concentrated on body language and demeanor.
Deliberations were very nice. Everyone was nice and polite. I mean, let’s face it, we were 12 strangers that in the real world would have had nothing to do with each other. But in the jury room, we all pretended we were all equal. The sad part was that most of my fellow jurors were as clueless as I was. There were only 3 of us that could talk the talk and sound semi-intelligent. Unfortunately, our three resident geniuses didn’t agree on who should win.
Ultimately, we decided plaintiff should win. It seemed like the right decision, really. I and the others honestly thought so. We didn’t do it just because we felt sorry for the old sickly guy, or just because one of the defendants came off as a jerk on the witness stand, or just because the plaintiff’s attorney was a babe that dressed really well. I mean, maybe all those things made a difference, I can’t say for sure, but I can say no one in deliberations actually said out loud that things like that should affect our opinion.
Here is the thing: If someone were to tell me this week that I just gave oodles of money to some old sickly guy who didn’t deserve it, I couldn’t argue with him. I don’t think I did, but I could have. If I did do a bad thing, I don’t blame me, I don’t blame my fellow jurors, I don’t blame the judge, I don’t blame the sickly old guy, and I don’t blame the lawyers. If I screwed up big time, I blame the doctors. Not the two defendants that treated the sickly old guy, but the four plaintiff experts that took an oath to tell the truth and then lied their asses off to me. If my decision was correct, then the defense called four expert liars.
I hear that frivolous lawsuits have everyone in a snit these days. Well, there is no way you can rely on people with law degrees to stop frivolous lawsuits against doctors. The only people that can tell if my lawsuit was bogus or the real-deal are doctors. My lawsuit didn’t go to trial just because the lawyers wanted to go to trial, it went to trial because both sides had doctors willing to testify under oath that their side should win. Take away the doctor willing to lie, and poof, lawsuit gone. Either the sickly old guy learns to get over it, or the two doctor defendants (or their malpractice insurance companies) pay up without a fight. Either way, no lawsuit. (I hope those two guys had insurance, if not, ouch, we spanked them awfully hard.)
All the expert witness folk were real proud of their resumes and that they were Board Certified in something. They loved being members of the American College of Whatever. Here is my idea: How about an American College of Medical-Legal Experts. Getting in would be easy, just be a Board Certified guy in whatever specialty you want, and pay some dues. The hard part would be staying in. If someone thinks you testified to a whopper, let that someone send the transcript into the ACMLE along with a healthy check to cover the costs. The ACMLE would appoint a three-doctor panel to review the testimony. If it was copacetic, nothing happens. If the testimony was BS, then the expert is warned. If the expert is caught BS’ing in court a second time, he or she is tossed out of the ACMLE. That’s it. The cases he BS’d in don’t get reversed or anything. The ACMLE is not a court of appeal. The ACMLE is just about doctor credibility, nothing more, nothing less.
In my case, the lawyers made a big deal over how many times each expert testified for the defense and how many times they testified for plaintiffs. They had a point. It appears that there are BS’ers who defense lawyers love to hire and BS’ers plaintiff lawyers love to hire. But in the end, that particular statistic didn’t help us jurors much. An ACMLE statistic, however, could help a lot. Here is the thing – if there was an ACMLE, and if I as a juror hear that one side’s doctors are members of the ACMLE, and the other side’s are not, then that’s it, schools over. Since I can’t figure out on my own who is selling snake oil, if an ACMLE tells me who is in and who is out, I’m going with the guy who is in.
It seems to me that way to end frivolous lawsuits is to have expert doctors with BS testimony not be believed by the jury. I think my idea can take care of that pretty well, thank you.
Since the ACMLE is an organization of doctors, I’ll leave it up to them to decide the details of how their reviews should be conducted. The thing to remember is that the test is not that the witness be right, just that they not lie. If reasonable doctors can reasonably have different opinions, then if no one lies, nothing happens. In such a situation, the witness that said her opinion is X, but that reasonable doctors could think Y, has nothing to fear from the ACMLE. But the witness who says his opinion is X and that anyone who thinks Y is an ignorant fool should have a lot to fear from the ACMLE. I repeat, the witness doesn’t have to be all-knowing and infallible. The witness just has to not lie.
I’m not saying every case has to have a liar. Maybe the ACMLE will have very few referrals. Maybe all ten doctors I heard in my case told the truth and I was just too stupid to recognize that they were just having an honest disagreement. And maybe pigs fly.
C E Sutton
I did something interesting last month. I made a decision that involved hundreds of thousands of dollars or other people’s money. I didn’t want to. They made me. They drafted me. I was minding my own business, and they sent me a letter – You got jury duty! When I got to the courthouse, they sent me to a courtroom with a bunch of other people who didn’t want to be there.
The case was about a sickly-looking fellow suing two doctors. He was treated by these two doctors and they said he was cured, but a couple months later he got really, really, sick. Now he claims he wouldn’t have gotten so sick if these two doctors had treated him right the first time. It turns out he had a serious blood infection and he says he had it the first time and they missed it. They said he didn’t have any blood infection the first time and that the blood infection he had the second time was not their fault.
Well, what do I know about blood infections? Zip, nada, nothing. I heard from 10 doctors, all under oath. The two defendants were a vascular surgeon and a hematologist. They both testified and said they did nothing wrong. The plaintiff’s lawyer called her own vascular surgeon and hematologist, plus a cardiac surgeon and a cardiologist. The defense lawyer called four more doctors with the same specialties. All four plaintiff experts said the defendant doctors screwed up big time. All four defense experts said the defendant doctors did just fine. The two cardiologist experts both work at the same hot-shot University Medical School. They both said the other one was a fine chap and a great doctor. And then they both said the other one was full of crap in their opinions regarding the case. There were five or six interesting medical issues in the case and on each issue, the plaintiff doctors all saw it one way and the defense guys (and one gal) all saw it the other way.
Like I said, I know squat about blood infections. On a good day, I bet I could follow about half of what those doctors were saying. That’s a good day. By the third day of trial, I wasn’t having any good days. I was clueless. Following things logically was hopeless, so I concentrated on body language and demeanor.
Deliberations were very nice. Everyone was nice and polite. I mean, let’s face it, we were 12 strangers that in the real world would have had nothing to do with each other. But in the jury room, we all pretended we were all equal. The sad part was that most of my fellow jurors were as clueless as I was. There were only 3 of us that could talk the talk and sound semi-intelligent. Unfortunately, our three resident geniuses didn’t agree on who should win.
Ultimately, we decided plaintiff should win. It seemed like the right decision, really. I and the others honestly thought so. We didn’t do it just because we felt sorry for the old sickly guy, or just because one of the defendants came off as a jerk on the witness stand, or just because the plaintiff’s attorney was a babe that dressed really well. I mean, maybe all those things made a difference, I can’t say for sure, but I can say no one in deliberations actually said out loud that things like that should affect our opinion.
Here is the thing: If someone were to tell me this week that I just gave oodles of money to some old sickly guy who didn’t deserve it, I couldn’t argue with him. I don’t think I did, but I could have. If I did do a bad thing, I don’t blame me, I don’t blame my fellow jurors, I don’t blame the judge, I don’t blame the sickly old guy, and I don’t blame the lawyers. If I screwed up big time, I blame the doctors. Not the two defendants that treated the sickly old guy, but the four plaintiff experts that took an oath to tell the truth and then lied their asses off to me. If my decision was correct, then the defense called four expert liars.
I hear that frivolous lawsuits have everyone in a snit these days. Well, there is no way you can rely on people with law degrees to stop frivolous lawsuits against doctors. The only people that can tell if my lawsuit was bogus or the real-deal are doctors. My lawsuit didn’t go to trial just because the lawyers wanted to go to trial, it went to trial because both sides had doctors willing to testify under oath that their side should win. Take away the doctor willing to lie, and poof, lawsuit gone. Either the sickly old guy learns to get over it, or the two doctor defendants (or their malpractice insurance companies) pay up without a fight. Either way, no lawsuit. (I hope those two guys had insurance, if not, ouch, we spanked them awfully hard.)
All the expert witness folk were real proud of their resumes and that they were Board Certified in something. They loved being members of the American College of Whatever. Here is my idea: How about an American College of Medical-Legal Experts. Getting in would be easy, just be a Board Certified guy in whatever specialty you want, and pay some dues. The hard part would be staying in. If someone thinks you testified to a whopper, let that someone send the transcript into the ACMLE along with a healthy check to cover the costs. The ACMLE would appoint a three-doctor panel to review the testimony. If it was copacetic, nothing happens. If the testimony was BS, then the expert is warned. If the expert is caught BS’ing in court a second time, he or she is tossed out of the ACMLE. That’s it. The cases he BS’d in don’t get reversed or anything. The ACMLE is not a court of appeal. The ACMLE is just about doctor credibility, nothing more, nothing less.
In my case, the lawyers made a big deal over how many times each expert testified for the defense and how many times they testified for plaintiffs. They had a point. It appears that there are BS’ers who defense lawyers love to hire and BS’ers plaintiff lawyers love to hire. But in the end, that particular statistic didn’t help us jurors much. An ACMLE statistic, however, could help a lot. Here is the thing – if there was an ACMLE, and if I as a juror hear that one side’s doctors are members of the ACMLE, and the other side’s are not, then that’s it, schools over. Since I can’t figure out on my own who is selling snake oil, if an ACMLE tells me who is in and who is out, I’m going with the guy who is in.
It seems to me that way to end frivolous lawsuits is to have expert doctors with BS testimony not be believed by the jury. I think my idea can take care of that pretty well, thank you.
Since the ACMLE is an organization of doctors, I’ll leave it up to them to decide the details of how their reviews should be conducted. The thing to remember is that the test is not that the witness be right, just that they not lie. If reasonable doctors can reasonably have different opinions, then if no one lies, nothing happens. In such a situation, the witness that said her opinion is X, but that reasonable doctors could think Y, has nothing to fear from the ACMLE. But the witness who says his opinion is X and that anyone who thinks Y is an ignorant fool should have a lot to fear from the ACMLE. I repeat, the witness doesn’t have to be all-knowing and infallible. The witness just has to not lie.
I’m not saying every case has to have a liar. Maybe the ACMLE will have very few referrals. Maybe all ten doctors I heard in my case told the truth and I was just too stupid to recognize that they were just having an honest disagreement. And maybe pigs fly.
C E Sutton