The Boston Globe looks at the difficulty in balancing justice and medicine in the malpractice crisis
“According to Howard, one of the chief problems is that juries must make decisions about ’standard of care’ (the accepted norm from which a negligent doctor may have deviated), an area about which most jurors know little. And jury decisions apply only on a case-by-case basis. As a result, pain and suffering awards for the same injuries vary widely, while studies show that even ‘hard’ economic damage awards (such as lost wages and medical costs) can differ substantially as well. ‘There is a sort of lottery aspect to damage awards that is unfair to most plaintiffs,’ says Howard. ‘There’s no horizontal equity across the line.’”
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That is a very balanced article. I say that with all sincerity.
The standard of care will vary to some extent according to the medical conditions presented, but even more significant is that lost wages and medical costs will certainly vary from case to case simply because not everyone earns the same or incurred the same medical costs even for the same illness/injury treatment that resulted in the claim. Something that varies according to the facts is not simply chance (a ‘lottery’), but is probably to be expected: different facts, different outcome. I’d be much more surprised if all cases came out to the same or nearly same dollar amount.
Yes, juries likely know little about the standard of care, which is why they rely on expert witnesses to tell them what the standard is. Each side gets a chance to present their own experts, and the jury takes it from there. Unfair? Maybe. But how else are you going to decide? If medicine can’t give a bright line explanation for the applicable standard of care, then how will any single expert decide what it is? Juries are not supposed to be experts, just regular folks who make decisions based on what is put in front of them.
So no, there is no ‘horizontal equity’ in med mal cases — because they are all by definition different. Different presentations, different treatments, different errors, different damages. That doesn’t call for equal outcomes.
I’m so sick and tired of this reference to a mythical STANDARD OF CARE.
The legal system does not apply such terminology. The “standard of care” is whatever one expert says that it is.
Med mal cases are NEVER about “standards of care” they are about expert #1 competing against expert #2. Does that sound like a “standard” to you?
Standards are made by organizations and communities, not individuals.
Ask Curious JD: to what standard are MDs held in malpractice cases? The standard of care in the area in which they practice.
And those standards are communicated to a judge or jury by expert witnesses.
Against what standard would you have an MD held accountable?
I’m not being coy, but I really don’t understand your question.
CJD
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