Maxwell Strikes Back

Maxwell Kennerly’s Litigation and Trial blog is a must-read for lawyers who practice civil litigation of almost any type.  His posts are timely, thoughtful, and relevant.

Take this post, "’How Other Countries Judge [Medical] Malpractice,’" By A Law Professor Who Doesn’t Know Medical Malpractice Law", in which Maxwell appropriately blasts an editorial by a torts professor who needs a reality check.

The author of the editorial, Richard A. Epstein, has been a law professor since he finished law school at Yale in 1968.  He is almost certainly a very bright man.  But, based on his understanding of the law, he would have accepted each of  the ten or fifteen potential medical malpractice cases I will turn down this week..   And by the Summer of 2011 he would have been broke.  Flat broke.  Or he would have rejected every case in which he thought the defendant should not be held responsible for her conduct because the defendant would say it was an honest mistake.  This mindset would cause him to reject all cases, because that defense is asserted in every case.

Then again,  the good Professor has probably never seen a defendant submit an expert witness disclosure that it was not below the standard of care to operate on the wrong limb.  I mean, why would one expect a doctor to know whether he should be operating on the left ankle or the right?  Left.  Right.  An honest mistake, right?  I mean, he had a 50% chance of getting it right.  Or is it getting it left?

Note:  I would be remiss if I did not mention Eric Turkewitz’s excellent post on this issue.  Here it is.  And here is an excerpt:

Epstein also identifies four "procedural features that drive up malpractice costs." They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This "procedural feature" is called a constitutional right. The Seventh Amendment’s right to jury trials in civil actions is what Epstein is actually complaining about. I reprint it here so that he doesn’t have to look far for it:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Epstein’s real problem isn’t with some procedural feature, it’s with the Bill of Rights and our nation’s founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.