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William Wray is a 3L at Roger Williams Law. He attended Georgetown University and Brown University for undergraduate, graduating in 2010 with a degree in Middle East Studies. Throughout high school and college he was involved in Mock Trial, which kindled his interest in litigation. At Brown he...



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Outed as a 1L at a med student party...

Posted by William Wray on 09/13/2010 at 01:41 PM

A friend of mine is starting his first year at Brown Med School. I went with him to a med student party last weekend, just a couple blocks from where I live in Providence. I was worried that an aspiring doctor party would be somewhat tame, given their advice of 'abstinence this' and 'moderation that,' but based solely on the number of students smoking cigarettes outside, it was clear the only oath in effect was hypocritic.

 

(I always feel kind of nauseous after a bad pun.)

 

About an hour in we started talking with a group of third year med students. One of them asked if we were “MD 14's” (what we call 1Ls they call MD'14, based on year of expected graduation), and I confessed that I was an outsider; a law student.

 

One of the other MD12's eyes flashed. She (“vehement blonde”, henceforth) said 'You better not be going into medical malpractice,' in a tone that suggested that sometime very recently, if not earlier that day, a medical malpractice lawyer had peed in her shoes.

 

In furtherance of the conversation, and perhaps as something of a contrarian, I shrugged and said 'Maybe, but probably on the defense side.' I needn't have said anything after 'maybe,' as vehement blonde had already launched into the expected tirade about tort reform.

 

The arguments she trotted out were tired: huge verdicts [that are often reversed or lessened on appeal], punitive damages [that apply in less than 4% of personal injury cases], contingency fee 'sharks' [that allow the un-moneyed to seek justice in an expensive system], and ignorant juries.

 

It was the last – asserted with a haughtiness that text cannot express - that piqued my interest as a topic that might be discussed without the two of us sparring with unsupported statistics that we had read “somewhere.”

 

I offered that, given a capable defense counsel, juries are more than competent to arrive at the proper judgment from the facts, without the aid of legislative damage caps or alternative factfinders. Vehement blonde insisted that “regular people” were incapable of evaluating the medical decisions that doctors had made. They just see an injured victim, sympathize, and reflexively punish the doctor.

 

This struck me as completely off-base. Despite the widespread cry for 'medical exceptionalism' in torts, setting the facts in front of a jury and allowing them to allocate damages beats medical commissions or otherwise.

 

As a technical matter, medicine is no more or less complicated than law or finance, perhaps less so. The potential benefits of an appendectomy are obvious and can be weighed even when confronted with the .05% that fail. The societal benefits that financial derivatives have wrought, however, are difficult to express when one very specific, semi-governmental type of one derivative fails.

 

There is an inherent tension between the overall progress of medicine and the well-being of current patients built into the tort system. Large verdicts can impede the former, and capped damages the latter. In a litigation-heavy environment, Walter Reed might never have been able to discover how to inoculate against yellow fever at Camp Lazear by infecting individuals with the disease.

 

There is not a choice to be made between the two; there is a balance to be struck. 

 

But just as it would be unfair to have a board of Goldman Sachs executives trying Goldman Sachs executives, so it is unfair to have doctors – or worse, legislators – deeming what injuries deserve what compensation. The best people to strike this balance are the people of the jurisdiction in which the alleged impropriety occurred. Juries set a jurisdictional standard by deciding on the specific facts of hundreds of different cases, which standard is based on inference, rather than its inflexible and autocratic cousin deduction.

 

Are juries, as vehement blonde suggested, particularly susceptible to granting sky-high punitive damages as soon as they see an injured human body? I think not. We live in an age where many individuals have to assess multiple complex courses of treatment in which the riskiness of a given treatment must be considered in tandem with the potential improvements in quality of life. Not to mention that those jury members with loved ones that have cancer, or MS, or other such uncured ailments are certainly not blind to the desirability of latitude within experimental medical treatments.

 

In parting, I will note that, as fair as a trial by jury may be, there are procedural flaws inherent in many jurisdictions. Rhode Island, for instance, adds a 12% interest charge per annum from the date that the claim is reported, which is deeply unjust. Fairer states have pegged the interest rate to Treasury bond yields. I recently read an interesting paper suggesting that the rate should be pegged to the defendant's unsecured borrowing rate.

 

If this usury is meant to speed up the settlement process, then it should cut both ways... Right now it holds the defendant responsible for the plaintiff's dilatory tactics. Vehement blonde wouldn't like that.