The medical community has a special name for situations where an incompetent doctor rips out the patient's only good lung, leaving her with the cancerous one.
They call it "wrong-site surgery.
" Of course it may not be entirely their fault.
According to an "Information Statement" by the American Academy of Orthopedic Surgeons, these mistakes may result from "poor preoperative planning, lack of institutional controls, failure of the surgeon to exercise due care, or a simple mistake in communication between the patient and the surgeon.
" (Emphasis mine).
Let us suppose for the sake of argument that this was an honest mistake.
Let us go even further and suppose that it was not a fatal one.
Instead of removing the wrong lung, the doctor hacked off the only remaining good leg.
It was an honest mistake.
They both looked pretty much the same.
And the usually good and hard-working surgeon made room for one more after a long day in which he really did save another patient's life.
Now it's your turn to serve on the jury in the inevitable lawsuit.
You will not be told many things.
Some of the things you will be told will be misleading.
You will be asked to weigh the "evidence", follow the law, and decide the outcome of the case.
But you will never be told who will actually be affected by your decision.
1.
You will not be told who is really being held responsible.
That's the first big secret the lawyers and the judge are not allowed to tell you.
You will be aware of the name of the case.
It will be something like Susie Victim vs.
Dr.
James Hackenchop.
Assuming the Defense admits the wrong leg was removed, you will hear all manner of nice things about Dr.
Hackenchop.
You may even hear about some of the hardships he has recently gone through while dedicating himself to provide free services for orphans, etc.
Dr.
Hackenchop will be the only defendant you see sitting in the court room.
He will have been instructed to appear humble and contrite.
What you will not be told is that all of that is a smokescreen.
If you find against Dr.
Hackenchop, the entire amount will be paid by his insurance company.
His defense including the legal fees will be paid for by his insurance company.
In fact, Dr.
Hackenchop will not pay a nickel out of his own pocket for any of this.
Why will you never be told that the sympathetic doctor they have paraded in front of you for the last three to five days has no skin in this game? Because the lobbyists for the insurance industry have successfully written the law to ensure that no one tells you about them.
The judge and Susie's lawyer are not allowed to mention them at all.
Okay.
So the entity that Susie Victim is really looking to for compensation is not really Dr.
Hackenchop.
Her compensation if she gets any at all, will come from a multi-billion dollar insurance company.
The only representative of that insurance company you will see in the court room every day is the defense attorney that you will be led to believe is defending Dr.
Hackenchop.
That attorney is paid for by and is there to defend the insurance company.
That is not the only part of the story you will not be allowed to hear.
2.
Before the first witness speaks some of the truth will be hidden from you.
While you and the other jurors were sitting around in uncomfortable chairs waiting for things to get started, things have already gotten started behind closed doors.
Before the actual trial, the attorneys have gone before the judge to argue motions in limine.
This is a procedure wherein the judge will decide what about the case you will be allowed to hear - and what you will never be allowed to hear.
The judge will rule on things not considered relevant to the trial: things like how many times Dr.
Hackenchop has been found negligent before or how much the "expert" that will testify that any good surgeon could have cut off the wrong leg is being paid for his testimony.
To make matters worse, you will not only not be told that some of this information will be withheld from you, but you will be led to believe the opposite.
After the opening statements, Susie's lawyer will call her first witness.
You will hear every other witness as they are told to raise their right hands and swear to "tell the truth, the whole truth, and nothing but the truth.
" You will not be told that the witness has been cautioned NOT to tell the whole truth if it includes information the court ruled out in the earlier motions in limine.
If you thought you were going to hear the "whole truth" you were wrong.
You must make your decisions based on the pieces of truth you were allowed to hear.
3.
Some of your power as a juror will be hidden from you.
After the testimony is finished, you will be given jury instructions that are intended to tell you about the law that you should follow in reaching your decision.
You will be told for example that to find that the good doctor was negligent you must believe that he failed to use the degree of skill and learning ordinarily used under the same or similar circumstances by other surgeons.
Because you have taken an oath to follow the law, you are legally bound to make your decision within those boundaries.
But what if the law is not that clear cut? What if you place more weight on what your conscience tells you than on the letter of the law as defined in the jury instructions? Sometimes, juries do that.
But you will never be told of that possibility.
A federal judge once told me that he will not let someone serve on the jury if he thinks they have even heard of the concept of jury nullification.
Nothing here is intended to minimize the importance of jury trials.
The proliferation of articles and lobbying efforts demanding "tort reform" and the rapidly expanding practice of denying citizens this basic constitutional right through binding arbitration show how big of a threat the corporate world and the insurance industry perceive this fundamental right to be.
But in a democracy, jurors should have a right to know the secrets of how the sausage making process works.
Rick D.
Massey, JD, Copyright © 2010
They call it "wrong-site surgery.
" Of course it may not be entirely their fault.
According to an "Information Statement" by the American Academy of Orthopedic Surgeons, these mistakes may result from "poor preoperative planning, lack of institutional controls, failure of the surgeon to exercise due care, or a simple mistake in communication between the patient and the surgeon.
" (Emphasis mine).
Let us suppose for the sake of argument that this was an honest mistake.
Let us go even further and suppose that it was not a fatal one.
Instead of removing the wrong lung, the doctor hacked off the only remaining good leg.
It was an honest mistake.
They both looked pretty much the same.
And the usually good and hard-working surgeon made room for one more after a long day in which he really did save another patient's life.
Now it's your turn to serve on the jury in the inevitable lawsuit.
You will not be told many things.
Some of the things you will be told will be misleading.
You will be asked to weigh the "evidence", follow the law, and decide the outcome of the case.
But you will never be told who will actually be affected by your decision.
1.
You will not be told who is really being held responsible.
That's the first big secret the lawyers and the judge are not allowed to tell you.
You will be aware of the name of the case.
It will be something like Susie Victim vs.
Dr.
James Hackenchop.
Assuming the Defense admits the wrong leg was removed, you will hear all manner of nice things about Dr.
Hackenchop.
You may even hear about some of the hardships he has recently gone through while dedicating himself to provide free services for orphans, etc.
Dr.
Hackenchop will be the only defendant you see sitting in the court room.
He will have been instructed to appear humble and contrite.
What you will not be told is that all of that is a smokescreen.
If you find against Dr.
Hackenchop, the entire amount will be paid by his insurance company.
His defense including the legal fees will be paid for by his insurance company.
In fact, Dr.
Hackenchop will not pay a nickel out of his own pocket for any of this.
Why will you never be told that the sympathetic doctor they have paraded in front of you for the last three to five days has no skin in this game? Because the lobbyists for the insurance industry have successfully written the law to ensure that no one tells you about them.
The judge and Susie's lawyer are not allowed to mention them at all.
Okay.
So the entity that Susie Victim is really looking to for compensation is not really Dr.
Hackenchop.
Her compensation if she gets any at all, will come from a multi-billion dollar insurance company.
The only representative of that insurance company you will see in the court room every day is the defense attorney that you will be led to believe is defending Dr.
Hackenchop.
That attorney is paid for by and is there to defend the insurance company.
That is not the only part of the story you will not be allowed to hear.
2.
Before the first witness speaks some of the truth will be hidden from you.
While you and the other jurors were sitting around in uncomfortable chairs waiting for things to get started, things have already gotten started behind closed doors.
Before the actual trial, the attorneys have gone before the judge to argue motions in limine.
This is a procedure wherein the judge will decide what about the case you will be allowed to hear - and what you will never be allowed to hear.
The judge will rule on things not considered relevant to the trial: things like how many times Dr.
Hackenchop has been found negligent before or how much the "expert" that will testify that any good surgeon could have cut off the wrong leg is being paid for his testimony.
To make matters worse, you will not only not be told that some of this information will be withheld from you, but you will be led to believe the opposite.
After the opening statements, Susie's lawyer will call her first witness.
You will hear every other witness as they are told to raise their right hands and swear to "tell the truth, the whole truth, and nothing but the truth.
" You will not be told that the witness has been cautioned NOT to tell the whole truth if it includes information the court ruled out in the earlier motions in limine.
If you thought you were going to hear the "whole truth" you were wrong.
You must make your decisions based on the pieces of truth you were allowed to hear.
3.
Some of your power as a juror will be hidden from you.
After the testimony is finished, you will be given jury instructions that are intended to tell you about the law that you should follow in reaching your decision.
You will be told for example that to find that the good doctor was negligent you must believe that he failed to use the degree of skill and learning ordinarily used under the same or similar circumstances by other surgeons.
Because you have taken an oath to follow the law, you are legally bound to make your decision within those boundaries.
But what if the law is not that clear cut? What if you place more weight on what your conscience tells you than on the letter of the law as defined in the jury instructions? Sometimes, juries do that.
But you will never be told of that possibility.
A federal judge once told me that he will not let someone serve on the jury if he thinks they have even heard of the concept of jury nullification.
Nothing here is intended to minimize the importance of jury trials.
The proliferation of articles and lobbying efforts demanding "tort reform" and the rapidly expanding practice of denying citizens this basic constitutional right through binding arbitration show how big of a threat the corporate world and the insurance industry perceive this fundamental right to be.
But in a democracy, jurors should have a right to know the secrets of how the sausage making process works.
Rick D.
Massey, JD, Copyright © 2010
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