You make a flawed assumption here. Juries are never given "all the facts" of a case. Judges maintain a lot of discretion and there is a global body of law regarding what information must be excluded from presentation to a jury.
Juries are also prone to irrationality, being unduly influenced by effective lawyering, bouts of vindictiveness, fiscal irresponsibility and other flaws.
There's flawed and there is flawed. I agree that the jury system may have it's problems [which applies to criminal cases as well as litigation] but I don't see anyone jumping up and saying let's abolish the jury system. There are certainly moments when I might feel that way, but I'm not proposing such a system change. Plus judges do have the discretion of throwing out a verdict and there is an appeal process. I will grant that which system is better is arguable, but I haven't seen anything that represents a comprhensive analysis that is persuasive. And I certainly have never heard any one claim that a particular system will always be just and right.
A much better system than the chaos and unfairness that seems to be the hallmarks of the U.S. tort system.
"seems to be" or is?
Back to this post....
Message 19593891
In a review of federal court data, law professor Marc Galanter found just 1.8 percent of all civil cases filed in federal court went to trial last year. By comparison, 11.5 percent of the cases went to trial in 1962, the first year covered by the study.
So your problem with juries does not possibly apply to 98.2% of the cases. Of the 1.8% of all civil cases how many would you speculate? ....Juries are also prone to irrationality, being unduly influenced by effective lawyering, bouts of vindictiveness, fiscal irresponsibility and other flaws. 100%, 50%, ??? [rhetorical question]
continuing in the same article...
....258,876 in 2002 compared to 50,320 in 1962.
But the rate at which cases go to trial has fallen so rapidly that there were actually fewer trials in 2002 than in 1962 -- 4,569 last year compared to 5,802 four decades ago.
Keeping in mind that these are all civil suits, vs. just the medical ones.....I was surprised that the number was as small as it was. And that the % of civial suits going to trial was rather small.
Let's look at some spotty data on medical...[all of it seems to be spotty]
virginia.edu
According to estimates published by the National Academy of Sciences' Institute of Medicine (IOM), between 44,000 and 98,000 Americans die each year from preventable medical errors.
I saw that and said...WOW! An average of 71,000 deaths every year from preventable medical error. And we only have 4,500+ [and trending down] civil suits of all types that make it to trial per year. If I consider the total number of civil suits of ~260,000 in 2002, it suggests to me that a good portion of those 71,000 deaths due to preventable medical error are never even filed.
The article goes on to say....
"In today’s medical malpractice suits, the vast majority of medical injuries are not the result of ‘wanton’ or certainly ‘intentional’ acts, but at best only some variant of negligence,"
Nice sentence, but no where in the article does it do anything to support that claim or how they even determined it. I hate it when they do that.
Here's something from our good friends in Canada. I can't tell you whether it's representitive of the US, but here is one class of claims that they discuss....
ucalgary.ca
A large class of claims related to anesthesia has resulted from cases where the anesthesiologist or anesthetist did not take a complete medical history of angina, myocardial infarction, recent upper respiratory infection, and asthma. Each of these conditions can predispose certain patients to intra-operative respiratory problems and cardiac arrest. A number of studies reported in medical journals have shown that compared with the traditional history-taking approach, computer applications result in more accurate information and have less variability in the listing of correct data.
Again no supporting data, but I do give the above more credibility since it isn't a vague global statement as I think the previous one was. And it does at least refer to the "number of studies in medical journals...But I was struck here by the description....it appears to claim that anesthesiolgists do not take a complete medical history. That's striking....one might think that if the journals are telling anesthesiologists that there are significant deaths [and suits] resulting from not taking an accurate medical history, then anesthesiologists would make it a high priority to take accurate medical histories. But it appears they don't.
....let me digress to prescription for a moment...I recall a number of years ago that the phramaceutical industry charged that the FDA approval process took too long and cost too much money and that if that was fixed, drugs would be made available to patients earlier [save more lives], the cost of research would go down and hence the cost of prescription medication would go down. Makes sense to me.
I subsequently read a few years after the system was fixed, that in fact, the approval process was significantly faster. Thumbs up. Hence the cost of development must be going down. Thumbs up again! .... Though for some reason I haven't heard any one cheer that the cost of prescriptions has gone down. A conundrum? A paradox?
Now back to torte reform for medical litigation. The proponents claim that the cost of insurance is driving "good" doctors out of practice, particularly Ob/Gyn doctors.
I have a couple of questions....how did they decide they were "good"; how did they decide they were leaving the practice for cost of insurance reasons, vs. other reasons such as retirement, they would rather live in Montana, or they would prefer to get into the highly lucrative practice of tummy tucks, breast implants, and liposuction. As I understand it, there's a lot more money to be had by modifying the human body then there is delivering babies.
Ignoring how they came to this claim, how many are we talking about? For example, if there are x number of Ob/Gyn doctors and n left the practice due to the cost of malpractice....what are x and n. Are we changing the litigation system for n=2 or n=500,000. 1% of Ob/Gyn doctors or 80% of Ob/Gyn doctors. I don't know and as far as I can tell, no one knows. I can say that every time I see claims like this there is never a reference to a study.
Then there is the insurance companies....it's claimed the medical malpractive suits drive up the cost of insurance. Makes sense to me. If they pass such torte reform, how much have the insurance companies promised to lower the cost of insurance to doctors? ...I haven't looked, but I bet the insurance companies haven't promised squat.
jttmab |
