Want to Fix the Malpractice Mess? Start with Judges

By Bertrand, Charles A. | Medical Economics, September 6, 1999 | Go to article overview

Want to Fix the Malpractice Mess? Start with Judges


Bertrand, Charles A., Medical Economics


If our legal system were a human body, it would already have died of multiple illnesses. But because it's a social system, it continues to function, though at times like a zombie-dead but still walking.

Over the past decade, we've become much more litigious and the courts have become more crowded and inefficient than at any time in our history. Americans as a whole have come to believe that justice rarely shows its face in court these days, in part because the judges themselves are too ideological and arbitrary, in part because juries are too easily fooled.

In civil court, juries are awarding plaintiffs multimillion-dollar verdicts in suits that would never have been filed 25 years ago. Doctors, who once enjoyed the unquestioning loyalty of their patients, are now hauled into court for any less-than-desirable outcome of medical treatment.

Clearly something must be done. We can't allow the legal profession to exploit the medical profession to the detriment of public health in America. But what should we do?

Here are some suggestions I've come up with based on my years of experience as a practicing physician and expert witness in malpractice cases, as well as conversations I've had with attorneys, judges, and colleagues.

Demand better-qualified state judges. Perhaps the most surprising sentiment that surfaced in my conversations with lawyers was the widespread discontent they felt with judges at the state level. Most agreed that the federal judiciary was largely composed of highly qualified people who were usually fair-minded in their rulings. But the state judiciary was another matter. Why?

For one thing, federal judges are appointed and state judges are often elected. So what's wrong with electing judges? Can't the people make wise choices, as they do in choosing members of Congress and the President? The answer appears to be No.

Choosing a judge requires knowledge and expertise absent in the average voter The qualities possessed by a good judge are not immediately apparent to the layman: extensive knowledge of the law, even-handedness, the ability to exercise authority with dignity and restraint, a willingness to transcend personality and sentimentality to concentrate on legal procedures and precedents.

In large cities where giant political machines vie against each other for control of the municipal government, candidates for the judiciary are often chosen to -appeal to certain constituencies-racial, ethnic, religious, socio-economic. Party leaders pay less attention to ability than to elect-ability. In addition, judgeships are often the currency with which partisan organizations pay back their political debts.

State judges are notoriously underpaid; consequently, few of the most talented members of the legal profession aspire to sit on the bench. The best and brightest know they can pursue more productive and interesting careers, as well as earn a far better living, by remaining in private practice. In fact, a number of law firms encourage their least productive partners to seek judgeships. This means that the field from which voters must choose is often composed of less qualified members of the state bar.

For these very good reasons, most lawyers I questioned support the appointment of state judges. In states where such a system is already in place, selection is often made by a committee composed of members from the state legislature, working closely with the state bar association. The method is still "politicized" to some degree, since the legislature is composed of politicians. Also, in recent years, state bar associations have become increasingly ideological. But lawyers tend to agree that such an appointment process would still yield a better crop of judges than popular election.

Unlike the federal judiciary, however, judges at the state level should not be appointed for life, nor should those in charge of the process ignore their record on the bench. …

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