Fwd: Book by Bill Dwyer

[Dr...@aol.com]

Three cheers for the Constitution!

[John Schedler]

May I apologize to all for my sloppiness in failing to review & correct my postings?

One more time:

Yes and no.  When the Constitution was debated, it was assumed by all, Federalists & Anti-Federalists, that the Constitution imported all of the traditional English liberties.  To include a jury of one's "peers."  At the time, there were two classes of people: the aristocracy and the commons.  The Constitution abolished the aristocracy, leaving only the commons.  We are all "commoners" and all each other's "peers."  

JWS

On Sun, May 8, 2011 at 09:10, <Dr...@aol.com> wrote:

Three cheers for the Constitution!

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---------- Forwarded message ----------
From: John Schedler <jsch...@gmail.com>
To: fellowship-for-accura...@googlegroups.com
Date: Thu, 5 May 2011 09:59:14 -0700
Subject: Re: Book by Bill Dwyer
Yes and no.  When the Constitution was debated, it was summed by all, Federalists & Anti-Federalists, that he Constitution imported all of the tradition English liberties.  To include a jury of one's "peers."  At he time, there were two classes of people: the aristocracy and the commons.  The Constitution abolished the aristocracy, leaving only the commons.  We are all "commoners" and all each other's peers.  

JWS

On Thu, May 5, 2011 at 09:53, Arnold Cohen <Coh...@einstein.edu> wrote:

My son is a law professor. I have discussed this "peer" issued before. He tells me that "jury by peers" is not in any foundation document that is used by the courts. Is this true?
Arnie
-----Original Message-----
From: dpriver <dpriv...@gmail.com>
To: (FACT), Fellowship for Accurate Courtroom Testimony <fellowship-for-accura...@googlegroups.com>

Sent: 5/5/2011 11:35:47 AM
Subject: Re: Book by Bill Dwyer

It is my understanding that the principle behind jury trials is that
one is judged by " a jury of one's peers". Under no conceivable
circumstances can a lay jury be considered to be peers of a physician.
This is not meant as an elitist statement, but simply to point out
that the complexities are far beyond the comprehension of lay people.
By the same standard, I would have no business serving on a jury for a
trial involving engineering or securities fraud. The Magna Carta
notwithstanding, trial by jury sounds good, but really does not result
in truth and justice. That said, I would encourage that all of us read
the two books being mentioned in this thread and submit our "reviews".
Knowing that all of you are fast readers, how about taking the coming
month to do this?
David

On May 5, 8:24 am, John Schedler <jsched...@gmail.com> wrote:
> The first thing is to address the central problem which many people just
> will not admit: hindsight bias.  The plaintiff's understands his and
> ruthlessly exploits it.  By way of example, the Am Coll Rads notes hat the
> error rate for interpreting plain films is 30% for bd cert radiologists.
>  That is also true in veterinary medicine.  But, when the radiologist is
> sued, the first words by plaintiff's counsel in opening will be what the
> outcome was.  Even the most rare & subtle complication looks obvious in
> hindsight.  A jury trial is an exercise in hindsight bias.
>
> JWS
>
>
>
> On Thu, May 5, 2011 at 08:12, Arnold Cohen <Cohe...@einstein.edu> wrote:
> > I certainly don't have the expertise of those of you responding but my
> > concern as a doctor who has been involved personally in malpractice
> > cases as well as a witness for both the defense and plaintiff is that
> > the jury is expected to understand very complex decision making
> > situations that occur in medicine and they are being asked to choose who
> > they believe from two "experts" who present the situation differently.
> > How do we expect people without a high level of knowledge of medicine
> > (specialty specific) to understand things and know which expert is
> > really telling the truth?
> > I think specialty courts are the only way to go.
>
> > Arnie
>
> > Remember- Sign all Verbal orders in PeriBirth.
> > Also-Wash your hands
>
> > Arnold W. Cohen, MD
> > Chairman
> > Department of Ob/Gyn
> > Albert Einstein Medical Center
> > 215-456-6993
> > cohe...@einstein.edu
>
> > >>> Judge Thomas <ne...@hamiltontn.gov> 5/5/2011 10:52 AM >>>
> > John,
>
> > Thank you for your thoughtful e-mail.  Interestingly, Judge Dwyer, in
> > his book, considers both sides of the issue on whether jury trials
> > should be modified in some way, including the points which you raise
> > in the book "Trials Without Truth" which I will enjoy reading.  I did
> > find it interesting that Judge Dwyer found that there were four
> > factors involved in the criticism of jury trials:  judges, lawyers,
> > legislators and juries.  It was easy for him to find fault with the
> > first three but not with the last.  To be sure, he did indicate that
> > there have been some abherrent jury verdicts, but he did note, aptly,
> > that the world is not perfect and there are trial judges there to
> > correct any wayward jury verdict.  I would note that over my 14 years
> > I have taken 177 jury verdicts and only reduced one.  In that one
> > case, the jury predicted a change in the law of the state of Tennessee
> > by the Tennessee Supreme Court.  Thank you for your thoughtful e-
> > mail.  Best regards.
>
> > Neil
>
> > On May 4, 11:05 am, John Schedler <jsched...@gmail.com> wrote:
> > > I should have thought of his myself.  I knew Judge Dwyer
> > professionally.  I
> > > was in cases where he was counsel for other parties & appeared before
> > him a
> > > number of times after he went to the bench.  That said, the other
> > side of
> > > the arugument is well put in "Trials Without Truth" by Wm Prizzi:
>
> > >    "... he shows how our preoccupation with formal rights and
> > procedural
> > > regularity blinds us to glaring substantive failures,
> > >    such as defendants' lack of access to adequate representation and
> > the
> > > fact that there is a strong institutional preference
> > >    for guilty pleas even in cases in which defendants are innocent.
> > ... "
>
> > > Both at Amazon, cheap.
>
> > > My Dad used to say, and my own 33 years of experience confirms it,
> > "if the
> > > truth emerges in a civil jury trial, it was probably an accident."
> > The fact
> > > is, the Type 1 & Type 2 errors in civil jury trials probably are each
> > about
> > > 40%.
>
> > > JWS
>
> > > On Wed, May 4, 2011 at 05:28, Judge Thomas <ne...@hamiltontn.gov>
> > wrote:
> > > > Let me commend to you who are doubters (and I respect your opinion)
> > of
> > > > the jury system a book written by Bill Dwyer entitled In the Hands
> > of
> > > > People:  The Trial Jury’s Origins, Triumphs, Troubles and Future
> > in
> > > > American Democracy.  The book is only 200 pages long and does not
> > read
> > > > like a non-fiction book.  Bill was a federal trial judge and is
> > very
> > > > eloquent in his description of trial by jury and not only
> > acknowledges
> > > > defects but suggests remedies.  Best regards.
>
> > > > Neil Thomas
>
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[Arnold Cohen]

Then why are there "specialty courts" such as in workers compensation and some industrial cases?
It is just hard for me to believe that "commoners" who have no experience in medicine or even medical specialists who don't have experience in that particular field can understand the complexity of cases.

The issue is now many cases are being settled because of the "business" aspect without going to juries because the lawyers and insurers think the risk of a high cost verdict isn't worth it. That is where the threat of the emotion comes into play. Juries can't tell the difference between what should and should not have been done when there are two competing experts saying the opposite thing. How do they know who to believe?

Arnie

Remember- Sign all Verbal orders in PeriBirth.
Also-Wash your hands

Arnold W. Cohen, MD
Chairman
Department of Ob/Gyn
Albert Einstein Medical Center
215-456-6993

coh...@einstein.edu

[John Schedler]

Dr. Cohen:

Respectfully, no.  Workman's Compensation (Industrial Insurance in WA) panels were set up ostensibly to speed up the process for injured workers.  Generally speaking, these administrative tribunals are very claimant-friendly and are one of the reasons why this sort of cost is out of control.  In WA, the hearings before the Board of Industrial Insurance Appeals are run according to the Superior Court Civil Rules and all parties get a trial de novo before a jury. 

Y'all better get used to the notion that we are all equal before the law and are not entitled to any special treatment.  Your concern derives from the problem of hindsight bias, a problem that is pervasive in all tribunals everywhere.  As I mentioned before, there is no reason why a court -- even a court of general jurisdiction -- cannot summon a venire of physicians from which to pick a jury in a malpractice case.  

The better model is the Manual for Courts Martial.  There a judge supervises a panel of experienced soldiers and ensures they are correctly instructed on the law and follow it.  In cases involving misconduct in the field, panels are usually composed of combat veterans.  This is a well-established process with a large body of case law.  

The sad fact is, however, is that an injured worker at least gets a fair hearing before a neutral decision maker.  A physician charged with professional misconduct will get no such thing.

JWS

[dpriver]

What speeds up the process in worker's comp cases is that there is no
fault-finding involved. Once it is demonstrated that a worker's injury
is work-related, there is immediate compensation based on some sort of
schedule. I think we should give some consideration to the idea of a
no-fault system for medical injury situations. I think it would be
cheaper and fairer. What, for example, is supposed to happen to a
brain-damaged newborn's possibly life-long financial needs if it is
determined that no one is "at fault"? I guess that child is just out
of luck. I believe such a system actually does exist for childhood
vaccines, wherein any related injury is compensated out of a fund, and
lawsuits are not permitted. It became necessary because the vaccine
makers were threatening to stop manufacturing vaccines. I believe I
once read that such a system actually exists in New Zealand.
DP

On May 9, 6:16 am, John Schedler <jsched...@gmail.com> wrote:
> Dr. Cohen:
>
> Respectfully, no.  Workman's Compensation (Industrial Insurance in WA)
> panels were set up ostensibly to speed up the process for injured workers.

>  Generally speaking, these administrative tribunals are *very
> *claimant-friendly

> and are one of the reasons why this sort of cost is out of control.  In WA,
> the hearings before the Board of Industrial Insurance Appeals are run

> according to the Superior Court Civil Rules and all parties get a trial *de
> novo* before a jury.

> > cohe...@einstein.edu

>
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> > the intended recipient, you are hereby notified that any disclosure,
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>
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[John Schedler]

THIS is a danged good idea.  It also allows for allocating costs to risks.  So long as the premium is clear and explicit up front.  Both the Dr AND the pt see what is being paid for the risk insurance.

Do not underestimate the ability of adolescent do-gooders to take these data & do harm with it, however.

JWS

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