Thursday, September 23, 2021

My Time as a Juror 2

In my last post I summarized the 4 weeks I spent as a juror on a medical malpractice case.  As I said, it ended unsatisfactorily, as we deliberated for about 2 hours on a Friday afternoon (starting at 4:30), then were instructed to return the following Tuesday (Monday was Labor Day), only to receive a phone call from the judge's clerk informing us that the parties had settled.  My assumption is that since we were to decide first, guilty or not guilty for 2 medical professionals, then, if guilty, did their negligence result in the bad outcome for the baby (born with brain damage), then finally, how much money per year to award the family if we found either or both culpable, it may have been the defense which improved their offer, as it makes sense that the longer we deliberated, the deeper we would have penetrated into the money issues, which would have been good for the plaintiff.

Overall, my impressions, assuming the course of this case is similar to other medical malpractice cases which occur everyday in America's courts, of both our legal and medical systems in this area was not positive.  A few of the medical experts who testified seemed like the child's best interests was important, but most did not, especially those of the defense whose expert opinion blamed the child and mother in the guise of a poorly functioning placenta or some type of defect in the womb.  Obviously, those on one side disagreed completely with the experts on the other side, but in addition, a part of the defense's strategy seemed to present those radiologists who read the child's MRI at all the hospitals involved as not being very good at their jobs, even though they worked for the hospitals in question.  To me, they were saying that if you get an MRI at any of these places, don't expect it to be read correctly unless you can pay for some outside expert to do so.  And, by the way, those experts were paid in the range of $300-600 per hour.  

I was not swayed by the experts on the defense side, but can easily imagine that many of these cases are determined, not by the truth, but by the best hired guns' and their ability to put doubt in a juror's mind that there was negligence.  When one considers that hospitals and insurance companies might tend to have the most resources to get the best "experts", while the plaintiff needs to assume some kind of compensation will be forthcoming to afford their own high priced experts, it is also easy to imagine that many cases of negligence are found for the defense, even when some negligence or malpractice occurred.  

As for the lawyers, again, the truth of what happened did not seem of primary concern except for where a portion of the truth could be used to gain or avoid a large settlement.  So often, witnesses were not allowed to answer questions that to us, the jurors, might shed some light on the trial due to pretrial agreements and legal mumbo jumbo that allows lawyers to only seek the truth that reflects positively for their clients.  One of the most critical pieces of evidence, did the nurse and hospital staff know that a plan to limit pushing to 30 minutes, then perform a cesarean section was agreed to by the OB-Gyn practice and the patient, was never addressed, just alluded to in the 4 week long trial.  Perhaps a separate law suit had been or was intended to be filed against that OB-Gyn practice for both not informing the attendant nurse of the plan, and for not being followed by the attendant doctor, but the jury was never told one way or the other.  In our deliberations, we felt almost as one, that the patient's primary doctor seemed negligent in some manner, but he was not one of the defendants.  

Whether the plaintiff's lawyer filed an additional suit, or just filed against the wrong person, we don't know, but after 4 weeks of testimony, more than one of us on the jury felt that our time had been wasted.

My first big question is, assuming that this was an act of God, meaning the mother did not do anything that harmed the baby in the womb, and the doctor's did all they could do once the baby's heart tones dropped precipitously, who should pay for the life time care of this child?  We know that very few, if any parents, have the resources to shoulder the $75 to $100 thousand per year cost to care for the child.  (That is the range provided by the defense and plaintiff witnesses who were asked to provide an estimate for us to consider, should we find anyone liable).  Is there not some type of standard amount that is offered to a family who experiences such a devastating occurrence, or is suing someone, anyone, the only way to pay for such a misfortune?  If there is no such established guidelines, then should there be?  In the end, we the taxpayer, through various local, state and federal assistance programs, pay for some of the cost.  Could there not be a fund created that monetizes such horrible outcomes, so that a family does not need to wait 3 or more years (this baby's birth happened in 2018), to get some type of compensation?  I know that each side spent tens of thousands of dollars, at least, to prepare their cases and hire expert witnesses, so it is not like there is not money out there already designated for this situation.  

Perhaps there is, perhaps an offer was made and the plaintiff decided to sue for more?  Fine, but that kind of decision must preclude the idea that the standard offer is now off the table, come what may.  Perhaps it sounds cruel to talk about assigning values to a child's lifetime, or someone's ability to work, or a couple's chance to have more children, or any of the innumerable acts of God that occur which render a person handicapped or disabled, unable to attain what might be considered the normal chance of happiness and self-fulfillment, but if what I witnessed is the only form of recourse, it was not very effective.

There seems little doubt that there is plenty of money in America,  When we an afford to spend a billion dollars on a sports stadium, afford to pay top level athletes and businessmen tens of millions of dollars per year in salaries, when we spend without any real debate $700 billion per year on defense yet have had to pull out of two third world countries in my lifetime after having failed to meet our military objectives, when there is literally nothing that can't be bought since everything has a price, why it is so horrible to standardize compensation for those Americans who suffer horrible accidents or events through no fault of their own?  And why isn't there, not just a call, but a demand, that such funds exist, paid by contributions from the medical field (in lieu of or as part of their malpractice insurance), the hospitals (in similar fashion as just detailed for medical professionals), and even the taxpayers who would probably feel comfortable knowing that should an unexpected disaster occur to themselves or spouse or children, they wouldn't have to fight for help in handling the disaster, or testify 3 years after the fact, only to relive the pain and suffering of the original event.  

This is not to say that when true malpractice occurs, a lawsuit might be justified.  But, for me, I would rather that the suffering family or person not have to go through what I witnessed concerning the family in question, but rather a set amount be distributed, and, separately, should malpractice be involved, the medical professional be judged to establish if it was true negligence or just a mistake.  Perhaps then, the victim and victim's family is able to move on in a reasonable time frame, and the offending doctors, should they be found negligent, be removed from the profession.  

While there is no way to avoid bad outcomes, perhaps by addressing bad actors who are involved multiple times in bad outcomes and removing them from medical responsibility, we might avoid some of those outcomes.   


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