John Edwards & "Junk Science"

[Segnosaur]

We should use special panels to evaluate claims of med malpractice. These people should have no financial incentive to be biased one way or the other (thats NOT the case in the current system). It should include people with both medical and legal training.

I agree that we should be using special panels to evaluate claims. One of the problems though is that it will create a false image of "doctors protecting their own" if a claim is rejected (even if the people on the panel have no financial incentive.)

 

[HopkinsMedStudent]

I agree that we should be using special panels to evaluate claims. One of the problems though is that it will create a false image of "doctors protecting their own" if a claim is rejected (even if the people on the panel have no financial incentive.)

Thats why it should be composed of more than just doctors. Put doctors, scientists, and lawyers on there. You could even put a couple of public advocates on there if needed.

I'm confident that we could develop a mixture of people who have the requisitive legal and medical knowledge, without it giving a free pass to all doctors.

 

[HopkinsMedStudent]

Lately theres been a few examples of defendant doctors who tried to go after the plaintiffs experts for presenting "false and misleading" testimony.

In one of these cases, the American Association of Neurosurgeons reprimanded and suspended a very famous neurosurgeon who the AANS claimed had prevented "false" testimony as a plaintiffs expert in a number of med mal cases.

I have a problem with doctors who decide to make their 2nd career as a med mal expert. Being a med mal expert pays very well, often times you can make more money by being a med mal expert than you can by treating patients (depending on specialty). I read an article the other day about a doc who makes 100k treating patients 40 hours a week and 200k a year testifying in 5-10 cases per year (maybe 5 hours per week if averaged out). This gives doctors a huge incentive to mislead and outright lie so they can be retained as experts.

 

[drkitten]

Re: Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

The question is, what do you consider "debate"? Probably more than 99% of scientists believe vaccines are safe, 99% now believe that cerebral palsy is not usually caused during the birth procedure, 99% of scientists believe in evolution, etc. Does the less than 1% of the scientific community who "disagrees" constitute a "debate" on the issue?

Please allow me to be blunt for a moment. Let me turn this around from the point of view of the drug company's lawyer. If, given that 99% of the scientists believe vaccines are safe, and less than 1% of the scientific community believes otherwise -- and you are not able to make this clear to the judge and the jury, then you should not be practicing courtroom law. I don't care how many medical journals you read. You're failing in one of the fundamental, basic skills of the profession, that of taking clear-cut evidence and presenting it in a basic, understandable way. You are failing to be a competent advocate for your client.

There is no numeric definition of "debate"; that's left to some extent up to the judge's discretion. It's your responsibility, as advocate to your client, to persuade the judge that there is no "debate" on the issue when the question is that one-sided, that the case in question is utterly meritless, and that the plaintiff should have to pay all the costs incurred by the defense for filing an utterly meritless case. If you can't do that when the facts are this slanted in your favor, then you shouldn't be a courtroom at all.

Let's see -- you're now insisting that the trial lawyer should be responsible for doing the jobs of the judge, the jury, the expert witnesses, and now the lawyer on the other side of the case as well. When does he get to do his own job?

Sure, mistakes happen. But look at the sequence of events that you're willing to assume in order to get to this decision that you disagree with (quotes are taken from earlier posts):

• A judge "who's a real bonehead."
• A set of [expert] witnesses who "mislead and outright lie."
• A jury who are "incapable of deciding logically"
• and an opposing lawyer who is apparently helpless to present simple factual information in a clear and understandable manner.

This isn't a problem just with medical malpractice issues. These same issues would destroy any pretence of fairness in any trial, on any issue. I'm accused of a murder that happened two years before I was born? My lawyer isn't smart enough to make that clear. My DNA doesn't match the perp's DNA? The expert witnesses are willing to outright lie. I have eyewitness testimony about who the perp was? The judge rules it inadmissible --- and by assumption, the jury doesn't see the snow job that's going on.

And, somehow, all of these fundamental failings of justice, at every level of the system, are the fault and responsibility of the advocate for the other side? I obviously missed my calling. I should have become a trial lawyer, for the Godlike power it apparently gives me over the nature of reality itself.

 

[CBL4]

From the NY Times

Five weeks after the verdict, Judge Phillips ruled it "excessive" and said it appeared "to have been given under the influence of passion and prejudice," adding that "the evidence was insufficient to support the verdict."
...
[Edwards] sifted through several dozen expert witnesses to find one who would attest to his claims, and opposed state legislation that would have helped all families with brain-damaged children and not just those few who win big malpractice awards.
...
"It seems to me that only trial lawyers are experienced at reading fetal monitor strips and are able to tell me exactly when infants became asphyxic," or deprived of oxygen, said Dr. William J. West Jr.”

From CNSNews.com

'I have to tell you right now -- I didn't plan to talk about this -- right now I feel her (Jennifer), I feel her presence,' Edwards told the jury according to court records. "[Jennifer's] inside me and she's talking to you ... And this is what she says to you. She says, 'I don't ask for your pity. What I ask for is your strength. And I don't ask for your sympathy, but I do ask for your courage.'"

Junk science and an almost supernatural appeal to emotions.

CBL

 

[Segnosaur]

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: John Edwards & "Junk Science"

Please allow me to be blunt for a moment. Let me turn this around from the point of view of the drug company's lawyer. If, given that 99% of the scientists believe vaccines are safe, and less than 1% of the scientific community believes otherwise -- and you are not able to make this clear to the judge and the jury, then you should not be practicing courtroom law.

The abilities of the defending lawyer are irrelevant in this case, since a person can be sued for pretty much any reason, and even if the defense gets it thrown out, there will still be costs to the defendant (financial, time lost from not working, reputations, etc.)

And again, I think you're placing a lot of faith on the legal system to always come to the right decision... juries can act with emotion instead of logic, the rules of a court proceeding don't always favour logic (for example, 99% of scientists may believe the same thing, but I really doubt any judge will allow more than a few "experts" on either side, giving people the mistaken belief of a more equal split.)

Remember, it was the American legal system that failed to convict in the Rodney King beatings and who let O.J. go free.

There is no numeric definition of "debate"; that's left to some extent up to the judge's discretion.

Now wait a sec....

First you say that its not the responsibility of a lawyer (who likely specializaes in one particular area) to make "snap decisions" about the validity of a case dealing with science...

Then you turn around and say that the judge (who does not have the luxury of specializaing) should be able to make that decision?

It's your responsibility, as advocate to your client, to persuade the judge that there is no "debate" on the issue when the question is that one-sided, that the case in question is utterly meritless, and that the plaintiff should have to pay all the costs incurred by the defense for filing an utterly meritless case.

OK, I'm not an American so I'm not an expert in this aspect of the legal system... however, I was under the impression that the claimant couldn't be made to pay the costs of the defendant. (And what about class action lawsuits? Who's responsible for paying for costs if those are lost?)

Of course, as I said before, even if the plaintiff looses and is made to pay all court costs, there are still other hidden costs (time missed from work, damange to reputation, etc.) that also apply.

Let's see -- you're now insisting that the trial lawyer should be responsible for doing the jobs of the judge, the jury, the expert witnesses, and now the lawyer on the other side of the case as well. When does he get to do his own job?

All wrong.

What I said was that a trial lawer should be able to look at some of the current and/or relevant literature on the case to at least come up with a vague notion whether action is warranted. Given the fact that trial lawyers often specialize in certain areas, it shouldn't be that much of a stretch for them to do so.

Now, there is nothing to say that a lawyer has to do that, or that they can't still go ahead with a case anyways. But if they do, then I have every right to question either their integrity or their critical thinking skills.

 

[WildCat]

The problem. (lawyer web site)

Sometimes Cerebral Palsy is due to an accident during labor and delivery. You deserve to know if your child's disability is due to negligent care and you have the right to investigate its cause and know the options you have. You have the right to seek legal assistance to help defray medical bills, education costs and help prevent the same error from happening again to other children.

You can see the lawyers strategy here - go over the birth records w/ a fine toothed comb and blame any possible mistake, no matter how minor, as the reason for the baby's CP. Not hard to find a jury sympathetic to the baby's plight, and large awards ensue.

Medical malpractice litigation screams for a different method than the jury trials currently used. Of course, any changes would have to be implemented through legislation. And since a large % of legislators are lawyers, and the Trial Lawyers Association spends mega-millions on election campaigns, don't expect anything to change in our lifetimes.

Personally, whether or not a candidate is a lawyer is more important than their political party to me when it comes to voting, though it's often one lawyer running against another. I just can't trust someone who is formally trained in shaping the "truth". (Suddenly, Michael Redman, Amateur Scientist, etc don't take it personally - and please don't sue me! )

Ah well, I'll continue to support those w/ CP by contributing to organizations like this one. (though they also accept disabled adults w/ conditions other than CP) There's a Washington, DC chapter in the works (the only one now is in Chicago) for '05 if anyone in that area is interested in volunteering their time or money!