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I will be the first to admit that our justice system is not perfect nor is it efficient but what other system is there that each of us has access to out our very backdoor. There is no other system closer to us then our courts; a system that is a core value of what it means to be an American living in this Democracy. The jury system is part of the soul of America. It is a system with the beauty of simplicity and the power of the wisdom of ordinary people. It is this same wisdom that Rep. Spencer Bachus talked about in his recent debate about health care reform. The simple beauty of juries involves the following.

The system has a lawyer for the plaintiff and a lawyer or lawyers for the defendant. There is one judge, the referee, and twelve citizens called the jury. Each side tells their story and presents their facts. When each side has completed their arguments and presented all of their facts the judge tells the jury the laws that must be applied when deciding the case. The jury then moves to deliberate the case in private amongst themselves.

It is the jury that the Republicans, the US Chamber of Commerce and big business are really complaining about, the common man, you and I. Do they not believe we are not capable of making decisions about how to live our lives, that we are not capable of governing ourselves, that we are not capable as fully informed citizens to make decisions about the conscience of our community? Is this what we believe? I would argue otherwise.

Our Founding Fathers recognized the collective wisdom and judgment of its citizens and also understood that each of us unconsciously seeks those bits of information that confirm our underlying intuition. This is why the founding fathers gave us a system that allows for dissent. This confrontation forces us, the majority, to interrogate our own positions more seriously.

Yes, the jury system is not perfect, but neither is any institution that man creates and participates in because we ourselves are fallible. Given all of its imperfections the jury system is a microcosm of the very Democracy that men and woman have died for through our history. Yes, again I will say the jury system is not perfect but it is ours.

  • A jury is made up of local citizens who are in the best position to evaluate how the conduct at issue compares with the standards of the community in which they live.
  • The jury system is spontaneous, it is not known in advance preventing any undue influence on the members of the jury.
  • Jurors are not paid by either side.
  • Jurors complete their service and return to their private lives when the trial has ended. Judges are often on the bench for many years leaving them vulnerable to influence.
  • While it may be easy to find one judge that is out of touch with the community, it is much harder to find a jury of citizens that will come to an outrageous result.

So I ask you, what other place is there to better discover the truth and render justice? What other institution in this country does the common man have access to then a court out his backdoor?

The Founding fathers wanted to create a framework that would allow society to orient itself through dictates of conscience. This framework forces each of us into a communal process of finding the truth, an approach to truth that is experienced. An approach to truth that is more than dogmatic belief or a truth inferred from logical arguments. Are these principles and values something that we truly believe in our hearts as the best approach to society?

America is a nation formed by a set of ideals. America is composed of ideas of freedom, liberty, independent thought, independent conscience, self-reliance, hard work, and above all justice. It is a country that was formed from the injustices thrust upon the people and yet we want to deny ourselves the opportunity to seek justice, to seek the truth.

That is the strength of our Democracy, the people and our access to the courts out our backdoors. The ultimate power of the people can be found as close as the nearest court house. If our laws start to deny society this process of truth then the law is in danger of becoming no less a tyrant. Our founding fathers understood this which is why they gave us this tool of Democracy, the jury system. Are we to deny the wisdom of our fathers?

Is society ready to deny this father? When does it become OK when the life of another is more important than my son? I am told that allowing people to sue medical device manufacturers would harm innovation, innovation that would allow someone to live a better more productive life. My son is not living any life, better or productive. Is this my price for society’s innovation? Who makes that decision? Is it the politically influenced FDA commissioner or maybe the political appointment of Supreme Court Justices?

I will conclude with a quote from Thomas Jefferson, a powerful statement about the soul of America. “I know of no safe repository of the ultimate power of society but people. And if we think them not enlightened enough, the remedy is not to take the power from them, but to inform them by education.”

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An interesting discussion on “loser pays”. For all the talk of reducing lawsuits I have to ask two questions that I have not found an answer to?

  1. What is the definition of a frivolous lawsuit? Is this in the eye of the beholder?
  2. What percentage of all lawsuits are frivolous? If this is a small amount than why would we want to make it harder for the middle class to protect themselves?

http://newtalk.org/2008/08/would-loser-pays-eliminate-fri.php

“When doctors become invested in an outpatient surgery center, they perform on average twice as many surgeries as doctors with no such financial stake, according to a new study from the University of Michigan Health System.”

Things are never as they are as reported by the hype it up news to get your attention so we can sell advertising for a profit. Next time you hear about the out of control court system from a political party, talking head, or news media remember what they are in the business for, not the truth but the hype. Boring news or moderation gets you nothing in the hyper competitive news business.

 http://www.sciencedaily.com/releases/2010/04/100406101446.htm

“Radiologists who work in breast imaging tend to overestimate their actual risk of medical malpractice lawsuits, according to a study performed at the University of Washington School of Public Health and Community Medicine in Seattle, WA.”

This supports my belief the we humans tend to exaggerate many things in life or should I say our egos tend to exaggerate the ugliness that we place on an object or person.

http://www.physorg.com/news152807289.html

“Lawmakers said the number of malpractice suits and the dollar amounts awarded to plaintiffs have gone down, but insurance premiums for businesses and doctors have not.”

How could that be? I guess it has to do with insurance company investments as I talked about here: https://robertsfight.wordpress.com/2010/03/30/medical-malpractice-premiums/

 

http://www.wfmz.com/news/23237043/detail.html

An interesting article on tort reform in Missouri.

“More recently, a study by WellPoint, a large insurer, found that medical malpractice was “not a major driver of spending trends.”

“In the Kansas City area, 22 medical malpractice claims were filed last year, but only five resulted in plaintiffs’ verdicts, according to the Greater Kansas City Jury Verdict Service. In 2007, 19 claims were filed, and only five resulted in plaintiffs’ verdicts. In 2006, 23 claims were filed and just two resulted in plaintiffs’ verdicts.”

http://www.kansascity.com/2009/08/28/1412046_p2/would-tort-reform-make-a-difference.html

What drives the wild swings in medical malpractice premiums? Insurance premiums are no different in bonds in how they fluctuate in prices based on the return in investments.

Each bond pays a fixed coupon payment, usually every six months. That payment determines the rate of return, or the interest. For instance, if a bond pay $50 every six months and costs $1,000 to buy then the interest rate is $100/$1000 = 10%.   However, if investors bid up bond prices then the interest rate falls because the coupon payment does not change. For example, if the bond price is bid higher to $2,000 then the interest rate is $100/$2000 = 5%

Insurance companies have to invest the premiums they receive from doctors. This means that they have to adjust their rates based on the return on investment because they have to maintain their reserves.

So how does it work? If I can invest $1.00 at 8%, I’ll have $1.71 in seven years. If I can only invest at say 3%, I’d need $1.39 to have $1.71 in seven years. That would imply a 39% rate increase just on that factor.

You can easily see that large fluctuations in premiums could very well be driven by the insurance companies investments.

And this particular error happened eight times previous to this in one year. I wonder if someone would have sued this hospital the first time this happened this would have changed things. How high would the award have had to been to change the process. Thankfully this happened to a high profile person such as Dennis Quaid so that this can get publicity.

California has a $250,000 cap. Was this the reason people did not sue prior to this case? No lawyer would take their case because they would lose money?

Maybe if we just sit by long enough everyone will be prevented from using state tort laws to hold people accountable. Why do we want to hold educators in our public schools accountable but when it comes to our lives well that is a different story. 100,000 people are killed each year by mistakes (frivolous human beings using those pesky frivolous lawsuits to find justice). 100,000 people killed every year and not even a mention on cable news.

So who is watching out for these people, the media, congress, doctors, nurses. Who?

Did these pathologist and/or the company spend resources to ensure this never happened again? Was this preventable? It is difficult to judge this without having been on the jury.

“…A pathologist mixed up her tissue sample with that of another woman who did…”

http://news.minnesota.publicradio.org/features/2003/04/25_stawickie_paincap/

Yes, their are some people that recover a tremendous amount of money for minor injuries. My question though is what is the empirical evidence that these type of awards are out of control.

Below is a story of a young boy. Was his verdict fair? If this were your son what would you do?

http://www.lectlaw.com/files/lit13.htm

“Steven Olsen is blind and brain damaged because, as a jury ruled, he was a victim of medical negligence when he was two-years-old. He fell on a stick in the woods while hiking. Under the family’s HMO plan, the hospital pumped Steven up with steroids and sent him away with a brain tumor, although his parents had asked for a CAT scan because they knew Steven was not well. (So much for “defensive medicine.”) Steven Olsen came back to the hospital comatose. Had he received the $800 CAT scan, which would have detected a growing brain mass, he would have his sight and be healthy today.

A jury awarded $7.1 million in non-economic damages for Steven’s avoidable life of darkness and suffering. However, the jury was not told of a two-decade-old cap on non-economic damages in the state — the very law that conservatives want imposed on the nation and that CBO “scored.” The judge was forced to reduce the amount to $250,000. The jurors only found out about it by reading it in the newspaper, provoking the jury foreman write a scathing letter to the editor in the San Diego Union Tribune about this horrible California law.”
http://keanegroup.wordpress.com/2009/11/13/medical-malpractice-tort-reform-we-are-already-suffering-and-dont-need-more/

“Despite assertions that high malpractice rates are driving them out of the state, Massachusetts doctors are paying less than they were in 1990, after adjusting for inflation, according to a Suffolk University Law School study.”

http://www.boston.com/news/local/articles/2008/05/13/most_mass_doctors_face_lower_cost_for_malpractice_coverage/?s_campaign=8315