Juries’ Rightful Power
By: Attorney Kenneth N. Margolin

As published in “TRIAL,” the journal of the Association of Trial Lawyers of America

Susan hanged herself: she was 22 years old. Her sister came to my law office and told me that the death could have been prevented. The young emergency room psychiatrist who treated Susan on a rough night shortly before her death did not take her seriously. He was arrogant and callous, my client told me. She wanted to sue him so that he wouldn’t injure anyone else. Callous and arrogant young men, she believed, should not be psychiatrists.

I think about my profession and its impact on our society. Many lawyers do. I am aware that some commentators have billed the civil jury system in professional liability suits to be the greatest social evil since nuclear weaponry. I brink such suits cautiously.

“Have you complained to the doctor’s supervisors?” I asked my client.

The supervisors, both eminent physicians, said their employee had acted appropriately.

“What about the Board of Registration in Medicine?”

Their investigators said he had done nothing wrong.

We decided to sue so that the community, speaking through its jury, could decide whether this man was insensitive, whether his insensitivity amounted to bad psychiatry, and whether competent psychiatry could have saved Susan’s life.

Before we weaken our 200 –year-old civil jury system, we must not forget its democratizing role in our society. The question at hand is who shall decide conflicts. It is usually people who consider themselves experts, usually people with money or power.
It is simplistic to blame the jury system for adverse effects on the way entire professions conduct themselves. Physicians, for example, blame excessive reliance on technology and the heavy use of unnecessary testing on their fear of being sued. They would be wise to look inward and ask whether the public’s willingness to sue doctors, and award large verdicts to the injured, is not an expression of dissatisfaction with what doctors have become.

Jurors give a message as to how they want their fellow citizens, individual, professional and corporate, to behave. Perhaps they are telling their doctors: listen to me more carefully: see fewer patients and make a little less money: be more of a healer and less of a businessman.

The jury in Susan’s case awarded her family a significant amount of money. The jury was the community in a mirror; largely working people, black and white, both, sexes and a wide age span. The jurors were not ignorant or bamboozled by slick lawyers. They heard Susan’s story for a week. They listened to the psychiatrist who had been sued and read his medical records, listened intently to experts for both sides and understood the issues perfectly. In the end, they decided that they did not like the way the doctor practiced psychiatry, and wanted him to know it. As my partner and I waited by the elevators after the trial, two jurors approached us.

“The system works,” one of them said.

The system is not problem-free. Capable doctors should be able to practice without dread of a lawsuit. More rigorous screening of cases could help. Widespread resort to informal settlement and binding arbitration should be explored. Insurance companies must pay fair compensation in appropriate cases more quickly than is the current practice.

If we dismantle the civil jury system by limiting access to juries or the right to be represented by one’s own attorney, we remove one of the last ways in which ordinary men and women can help shape the contours of their community. How elitist are those who tell us that only the highly educated can decide important and complex matters? That is the philosophy that gives us $1000 hammers for the Defense Department, while the worker can no longer afford a home.

When you want your grievance against your insurance company decided by an insurance executive and your lemon-law complaint decided by a used-car salesman, wee me about destroying the jury system. Until then, let us have the self-respect to work out its difficulties in a manner that maintains its integrity so that we retain this vital element of control over our own lives.

Kenneth N. Margolin is a lawyer in Boston.

The Secret Files of Doctors
By: Attorney Kenneth N. Margolin

As Published in the 6/18/01 Newton Tab Newspaper

The great majority of Massachusetts residents who enter a hospital will receive quality care and leave healthier than when they were admitted. When something goes terribly wrong, they reasonably expect that the cause of the mishap will be investigated and the results of the investigation made known to them. Who else but the members of the medical institution where a mishap may have maimed or killed a patient, have the best ability to discover why it occurred? Who else has a higher moral obligation to the victim or to the victim’s family to uncover and disclose the truth? If a patient was harmed because of a doctor’s negligence or because the big business of health care, rather than patient care, was preoccupying a hospital’s administrators, who else has a greater mandate to reveal the causes of a blunder so that it will not occur again?

In this state, an alliance of doctors, hospital and insurance executives, special-interest lobbyists, and their friends in the legislature, have decreed that secrecy is best for our health. Most people are unaware of the fourteen year old “peer review privilege” law, Massachusetts General Laws chapter 111, sections 204 and 205. Hospital investigations into medical catastrophes within their facility are completely shielded from public disclosure. Not even the victims of acknowledged medical malpractice are permitted to learn what the investigators discover. The shroud covering “peer review” is so dark that in most cases, not even judges in the privacy of their chambers, are permitted to review the results of hospital peer review and quality assurance committee proceedings.

The remarkable premise behind the law is that doctors and hospital administrators will not tell the truth if their candor becomes public. They would rather, the rationale goes, continue to practice poor medicine than be embarrassed or give unwitting aid to a victim who brings a malpractice action, even if the “aid” is nothing more than the facts. While every responsible physician agrees that patients are best served when involved in their own care, the medico-insurance coalition preaches that the public must be excluded from efforts to improve our healthcare system. America’s two hundred twenty-five year experience as a democracy has taught us that secrecy dulls the impetus for needed change. The peer review secrecy statute grants to physicians a status generally held only by persons engaged in matters of the highest national security. It is an unjust law.

The legislative changes which should be made are straightforward. In the statute as it should be revised, hospitals would still be required to investigate incidents resulting in unexpected death or serious injury to patients. The reports of their investigations would be filed with the Department of Public Health and become public documents. Licensed health care professionals would be required to cooperate fully and truthfully with any peer review or quality assurance investigation, as a condition of licensure. Reasonable people might disagree as to whether the reports should be shielded from medical malpractice juries. Since only a minute percentage of cases involving patient harm ever wind up before juries, concern over malpractice litigation provides no justification for the continuation of secrecy law which has impeded the improvement of health are in our state.

The peer review secrecy law patronizes the public. It sows needless mistrust of doctors and hospitals. The law defies our common experience with the evils of secrecy in government and industry, and is antithetical to the bond of honesty which doctors and patients must share. Repeal of the statute and its replacement with a full disclosure in medicine law, is essential to the cause of medical error reduction and the overall improvement of our health care system.