Proposed Solution to the Malpractice Problem: Redefining the Role of the Jury in Malpractice Cases Arthur T. Davidson, MD, JD, and Arthur H. Coleman, MD, JD Brooklyn, New York, and San Francisco, California

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Dr. Arthur T. Davidson

The present malpractice crisis began in 1974 with the unexpected, and still partially urexplained, increase in malpractice premiums by approximately 200 percent. (Each year they have risen but not to that extent.) In the same period, there was a concomitant increase in the number of malpractice cases filed. This article will discuss a proposed solution to the malpractice problem. It does not presuppose that we know the First article in a two-part series. Requests for reprints should be addressed to Dr. Arthur T. Davidson, 1378 President St, Brooklyn, NY 11213.

cause of this sudden increase in malpractice cases; however, we might point out that many doctors feel that one of the basic causes of the malpractice crisis is "greed" on the part of some patients and some attorneys. Lawyers may accept cases on a contingency fee, which means that the patient puts up nothing and the attorney-although in some states it is a violation of professional ethicsbankrolls the case hoping for an out-of-court settlement or that a sympathetic jury will literally give his client some money. This brings us to a proposed solution to the malpractice

JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 71, NO. 10, 1979

Dr. Arthur H. Coleman

problem, ie, to remove the malpractice cases from the ambit of the jury. One of the major thrusts of the New York State Medical Society is "Senate Bill 577." This bill would provide for a constitutional amendment to empower the legislature to authorize determination of malpractice injury compensation without a jury trial. A similar bill passed the New York Senate in 1977 but got no further. The bill must be approved by two differently constituted legislatures before being placed on a statewide ballot for referendum. One is immediately struck by the 1013

fact that this seems to be a very involved and very prolonged, drawn out process to effect legislative change. This observation is quite correct because we are dealing with the typical legal procedure that must be adhered to in order to bring about a constitutional change. This means that if you wish to change the jury trial requirement in a malpractice case, it must be via the constitutional amendment route. There is no other way. Why is this so? Very simply, because the jury trial is guaranteed by the Constitution of the United States and, in certain cases, by the constitutions of all of the states. The thrust of this article is to underline the reasons: (1) why the jury trial is so deeply imbedded in the Constitution, and (2) why it is so important that the role of the jury in malpractice cases be redefined.

History of Right to Trial by Jury The right of an individual to a trial by jury is ancient in origin. It dates back to English law and was first guaranteed as a right under the Magna Charta. It was first introduced into America by English colonists and is regarded as one of the fundamental features of American jurisprudence. It is guaranteed in federal cases (suits at common law) by the seventh amendment to the Constitution of the United States, and in state cases by state constitution. However, a jury trial is not guaranteed in all state or federal cases. Civil cases roughly fall into two major categories: (1) cases at law, and (2) cases in equity. Cases at law are those which result generally in monetary relief or money judgment. Equity cases are those in which the relief asked for is equitable in nature, ie, cases where rather than asking for monetary relief, the court is asked to order the defendant either affirmatively, to perform a particular act or negatively, to cease from doing a particular act. Under English law, a jury trial could be had as a matter of right in those cases classified as cases at law. A jury trial can never be had in cases of equity. This division is historical in nature. English courts and American courts-up until about 1850-were originally divided into courts of law and courts of equity. This division began because courts of law were based on Roman law and justice was 1014

harsh and inflexible. In order to provide a measure of relief from the harshness of Roman law, under the auspices of the Church courts were established under the supervision of the head of the church-the chancellor. These were called Chancellor Courts. Here the results depended on the discretion of the chancellors; since the results often varied from case to case, and court to court, the expression arose, "that equitable decisions depended upon the length of the chancellor's foot." However, and this is the important part as regards the right to jury trial, as the chancellor was the highest official of the Church, it would be the height of presumption to allow a group of laymen or jury to sit in judgment of the chancellor's decisions. Consequently, by tradition, no jury trial was allowed in cases in the Chancellor Court or, as it later came to be known, Courts of Equity. Traditionally, Chancellor Courts handled only certain types of casesdivorce cases and many types of trespass to land; this is why even in modern day divorce cases and in cases involving use of land, such as nuisance cases, no jury trial is permitted. It is in the cases at law, or those cases where the relief asked for is monetary in nature-as in malpractice cases-that the right to a jury trial is a constitutionally guaranteed right. Any change of this right would require a change in the state constitution, which means passage by two successive state legislatures and presentation to the electorate in a referendum.

Function of the Jury A decision in a civil case can be made on the basis of the law and is termed "as a matter of law"; or it may be made on a determination by the jury as to which set of facts is correct. Or, simply put, "whom do we believe?" It is the function of the court, that is, the presiding judge, to rule on questions of law. It is the function of the jury to rule on questions of fact and to determine the size of the monetary award foudamages. It is these functions of the jury that are so important in malpractice cases. Even if a worthless, baseless, absolutely ridiculous malpractice case by the usual standards is filed, there may be a very real possibility that the patient will receive some money. The jury may decide that the case is

meritorious. Lawyers realize that, on some occasions when the patient comes before the jury as a plaintiff, the jury may feel that the patient is an "underdog" and the defendant/doctor is "Mr. Moneybags" who can afford to pay. Cognizant of this fact, some lawyers frequently attempt to play on the sympathy of the jury. This is called "romancing the jury." The lawyer feels that he will always get something for his client if his client looks "sick enough," "bad enough," or "distraught enough." Whatever the sum, it may amount to a gift to the lawyer and to the plaintiff/patient. This is an unpleasant, hard fact of life upon which some unscrupulous, unethical lawyers operate. Now what is the defendant/doctor and his attorney to do? In many cases, he will attempt to reach an out-of-court settlement, even in a case that he knows to be worthless and baseless, rather than gamble on the whims of the jury. It is for this reason that a redefining of the traditional role of the jury in medical malpractice cases is so very important. A better, fairer, and more equitable system would be to follow the procedure in criminal cases that are heard by a jury. That is, the jury determines the facts of the case and the court administers a predetermined penalty that has been approved by the state legislature. The function of the jury would remain essentially unchanged, that is, to determine whether or not the act of negligence occurred. Once they reach this determination, their role would cease. It would now be the duty of the court to apply a predetermined workman's-compensation-like award schedule.

Addendum Since this article was submitted for publication, the Honorable Warren E. Burger, Chief Justice of the Supreme Court of the United States, has proposed "the elimination of juries in civil cases that are too long, complicated, and technical for laymen." The Chief Justice also noted that juries in civil cases, except libel and fraud, have been abolished in Great Britain since 1937.

Suggested Reading 1. 50 Corpus Juris Secundum 2. 47 American Jurisprudence

2nd, Section 30 3. News of New York. Medical Society of the State of New York 34(5), March 1, 1979 4. United States Constitution 5. New York State Constitution 6. New York Times, August 6, 1979

JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 71, NO. 10, 1979

Proposed solution to the malpractice problem: redefining the role of the jury in malpractice cases.

Proposed Solution to the Malpractice Problem: Redefining the Role of the Jury in Malpractice Cases Arthur T. Davidson, MD, JD, and Arthur H. Coleman,...
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