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Tuesday, July 22, 2003Creating a reliable system of medical justice, however, requires changing one aspect of the system that is so ingrained it is hardly even part of the debate: the jury. Expert judges, not juries, must decide what is a valid claim. Even modest legislative reform is routinely resisted as trespassing on the hallowed right to take every issue to a jury. But this right is generally misunderstood. In criminal prosecutions, juries play a critical role as our protection against abuses of government power. Juries are our defense. But in a civil case, where citizens can use the justice system as an offensive weapon, the most important social value is predictability. ...Today, however, juries are being asked to decide not only disputed facts but standards of medical care. How does a jury know how to do that? More important, how does a doctor know what standards to abide by? Every time a sick person gets sicker, it's easy to come up with a theory of what a doctor might have done differently. Chemotherapy didn't work, but maybe radiation would have. Since the earliest days of the common law, there has always been a tension between what's a legal standard and what's a disputed fact. Until recent decades, however, this distinction didn't matter much to society. Social mores kept people from suing except in egregious cases. No longer. Now lawsuits are limited only by the imaginations of self-appointed victims and their lawyers. Drawing the line can be difficult for a judge, but not drawing the line transforms justice into a free-for-all. ..Defenders of the current system take pride in the fact that each case goes to the vote of the people. But that's not the rule of law; law that changes from case to case is the opposite of law. Shifting decisions about standards of care to judges from juries seems radical, but doing so is essential to restore a critical precept of American justice: that like cases be decided alike. The victim of unreliable justice is society as a whole, not just doctors. That's why reform must focus not only on protecting one group with caps on damages, but also on achieving a reliable foundation of law for all. Maybe we do need a radical transformation in our tort system. posted by Sydney on 7/22/2003 07:44:00 AM 0 comments 0 Comments: |
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