June 19th, 2019
Expert Witnesses and Medical Negligence Cases- Part 1
One of the remarkable features of the American system of justice is the use of juries in civil cases. The jury, comprised of members of the community to speak on its behalf, ultimately decides the facts of the case and renders a verdict. We rightly trust our fellow citizens with this important task. The use of a jury in civil cases should stand as a rejection of trial by elites – people who think they know better than so-called average citizens. It also stands as a rejection of the tempting idea that defendants should be tried to a jury of their peers, narrowly defined. When a trucking company causes a wreck by overworking its drivers, would we want that case tried to a jury comprised exclusively of trucking company executives? Of course not. When a corporation understaffs its nursing home and the residents suffer as a result, do we think it makes sense for that jury to be comprised exclusively of nursing home executives? Of course not. Along similar lines, we would not want a medical negligence case against a doctor tried exclusively to a jury of doctors, so our system of civil justice is set up to ensure that malpractices cases are tried to a jury made up of members of the community, just like other cases.
Of course, the companies that provide malpractice insurance to doctors and hospitals know this all too well. They know they can’t get a jury made up of doctors and hospital executives. But what’s the next best thing? What if there was a way to make sure that the jury only got to hear certain facts? What if there was a way to set the system up so that the jury only got to hear facts that the doctors thought were important, and no other facts that ordinary citizens might think were critically important? What if there were a way to make sure that even those facts were filtered through a panel of so-called experts, who got to tell the jury not only what the facts of the case are, but why those facts are important? If the system could be set up like that, there would be little room for the members of the jury to use their own collective wisdom and experience in deciding medical negligence cases. Doctors would tell them what facts were important and the jury would never even get to hear any other facts. They jury would not get to decide what facts were important and what facts were not. Doctors would. The jury would not even get to decide why or if certain facts were important. Doctors would. The jury’s sole function would be to pick between competing facts that were already pre-selected and filtered for them by members of the medical profession. I would argue that this is not the way our system of justice is supposed to work, but it is exactly what has happened to a large extent in medical negligence cases. I’ll discuss the beginnings of this problem in the next post in this series.