Medical Malpractice and the American Jury.

AuthorHoward, Philip K.

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...

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