Letters

      Doctored Argument
      Dr. Jack Hasson says, "The delusion of medical infallibility must end before litigation reform is possible" ["An Imperfect Practice," In Pro Per, June]. Doc, how do you think we came to believe that doctors were infallible in the first place?
     
      It's because the doctors convinced us they were infallible through the best public relations program ever ... and they were so successful that we believed them. I mean, we gratefully allow you to drug us, put us to sleep, and slice us open. Do you think we are going to let just anyone do that?
     
      Let me give you some examples of why we mere mortals believe that you are infallible. For some strange reason that perhaps you can explain to me, you doctors have convinced us that you must be called "Doctor" even when you are not in the hospital or your office. I mean, is it really necessary to make restaurant reservations as Dr. X, or is it that Dr. X expects and gets special treatment that Mr. X would never get?
     
      The other day, while leaving the men's room, I was introduced to a man I had never met as Dr. Y. Doc, c'mon, aren't we all equal in the men's room?
     
      And Doc, what about the way prescriptions are written? Is it really necessary to write prescriptions so the patient cannot understand them?
     
      So it really shouldn't come as a surprise to your profession that when medical malpractice lawsuits come before a jury, the medical defense of "We're just like you ... we do our best but sometimes mistakes occur" is often rejected by jurors. Jurors, who for years have been told by you that you walked on water, now don't want to believe you can't.
     
      You told us that in a world of uncertainty, we could depend on the skill of our doctors. Now you tell us even that is uncertain. (Doc, just so you don't think I'm picking on the medical profession, I feel the exact same way about airline pilots. I don't want the "s- happens" defense from them either.)
     
      Dr. Hasson, I think your plea that society has to understand that doctors can be wrong without being negligent is a good first step in beginning a dialogue about litigation reform that is educational rather than polemic. I think you are right when you argue that some mistakes doctors make are not caused by the negligence of the doctor but occur because the human body does not respond the same way every time, and that there still exists a void in medical knowledge.
     
      But, Dr. Hasson, I think you are preaching to the choir. We lawyers are taught in law school about negligence and the "reasonable man" standard. We understand that not everything that goes wrong is because of negligence. I know I would counsel my client against litigation if the facts were as you described in your article. There was no negligence by you or any other doctor.
     
      Let me offer a suggestion. I think it's time medical professionals look inward and begin to think about who they are, what they do and cannot do, and how they wish to be viewed. Are you men and women who do the best you can in an uncertain and ever changing environment, or are you men and women who deserve the best tables at restaurants because you possess secret knowledge that can keep us healthy? If you really are the latter, please include me in the group that will willingly give up the table. As Cole Porter wrote, "Do do that voodoo that you do so well." But if you really want to be thought of like that, then don't come to me when the voodoo goes wrong and tell me it's not your fault.
     
      Until a little introspection occurs, this flailing between doctors, lawyers, and jurors will continue. I don't think you can have it both ways. I think being a doctor is so special that you should be ready to give up the bit of arrogance that seems to be part of being a physician. You simply can't say that you are special and not special at the same time.
      Roger Cossack
      Washington, D.C. 
     
      I take umbrage at Dr. Hasson's opinion and conclusions. Few to no people expect infallibility from the medical profession. Hasson asserts that after his 50 years of medical practice, "I have come to believe that it is society's expectation of infallible medical practice that fuels medical litigation." He admits that "errors in diagnosis are inevitable." What tomfoolery.
      The conclusion he reaches about a nameless "society" having an expectation of medical infallibility is incredible. He must be out of contact with patients. I doubt that he has ever asked a patient if the patient expected infallibility from him as a physician. I asked a few physicians (one a surgeon) I know to ask 20 patients each that question. No patient expected infallibility. All expected competence and accountability. No patient expected perfection but, like all of us, none wanted to be treated by an incompetent doctor whose errors have been hidden from the patients.
     
      I have yet to meet a medical or mental health professional willing to expose himself or herself to the same recordable and witnessed scrutiny to which others in a position of having another's life, wellness, or freedom in their hands must face daily. As a routine, if medical errors are necessary to educate the medical profession and the public, then the medical profession should stop hiding its practice so it has deniability.
     
      Comparing people to "hurricanes, snowflakes, mountain ranges, and the shapes of clouds," noticeably all inanimate objects, is a significant admission of the arrogant degree of human unaccountability physicians maintain. Face to face, a physician may have good or poor "bedside manners." However, once the patient can no longer witness what is happening, the nicety of human relations disappears. The patient becomes a clinically scientific object to be studied. The horror of the clinical model evidences itself. What physician has the courage to record every medical procedure and readily admit errors when made? Stop hiding behind scientific objectivity and treat patients as equals and peers in medical care. Thank God my physicians don't think like Dr. Hasson.
      Walter Dutton
      Escondido
     
      The article "An Imperfect Practice" is inane. Defense experts in medical malpractice cases routinely chant the mantra "medicine is not an exact science" when attempting to defend a physician's actions. Neither the law nor juries, plaintiffs counsel, or plaintiffs require physicians to be infallible. We do not sue doctors because we mistakenly believe this. Indeed, all too often, medical negligence is deemed not actionable because the defendant doctor managed to comply with the minimum standard of care, even though the patient was not provided with the best care available. We often argue about the applicable standard of care, and we often argue about whether the defendant physician complied with the minimum requirements of that standard. But none of us believe that the standard is perfection.
     
      While I understand that Dr. Hasson has experienced a personal epiphany in realizing that certain mistakes he has made as a practitioner are understandable and inevitable, he is simply incorrect in assuming that the body of medical malpractice law has failed to recognize this concept. Publishing his article gives credence to his invalid and unsubstantiated claims, and this uninformed article should not have been published in a legal periodical.
      Donald J. Schutz
      St. Petersburg, Florida
     
      I read with curiosity "An Imperfect Practice." I continue to be surprised at the seemingly perpetual conflation of the concepts underlying "negligence" and "infallibility": One has nothing to do with the other.
     
      The article depicted a moment of hand-wringing from your own medical experience, but you failed to tie that experience in any way with your thesis regarding negligence.
     
      Regarding your personal story, it did not demonstrate negligence in three ways: First, you were not the physician responsible for the nodule biopsy; second, the examination of that nodule, regardless of its point of origin, was apparently appropriate; and third, the patient died anyway. Each of these three factors removed you from negligence.
     
      In another situation, if in fact you had simply missed the call as to the cancerous state of biopsy cells and physicians in your line of work were readily able to make the right call, you would have been negligent. These situations are not identical.
     
      And for what it's worth, even if your thesis was correct in supposing that medical negligence suits led to a presumption of infallibility, there is no nexus between the reduction of medical negligence suits or a lowering of the standard for medical negligence and the odds of getting better medical care as a result. Indeed, if my observations of human nature are correct, then only the opposite would be true: A reduction in the standard would lead to a reduction in the care, because I do not believe the majority of people are induced to perform at a lower standard by being obligated to achieve higher standards.
      Jason Z. Jungreis
      San Francisco
     
      Not Lovin' It
      I guess you guys must be really hard up for stuff to publish if you find "Lawyer or Lover?" [June] fit to print. I was curious, so I took this little quiz. According to the results, I am a romantically challenged lawyer. This author's idea of a lover is a callow, schmoozing, superficial jerk who will always be romantically challenged because this kind of person knows not of love but only of sexual exploitation and superficial positioning. Hey, sounds a lot like a recipe to make partner in a lot of firms out there.
      Marilyn A. Spivey
      Hermosa Beach
     
      Inland Crisis
      I read with great personal and professional interest the article "Send Lawyers, Judges" [ESQ.] in June's California Lawyer. The attention given to this dire circumstance is greatly appreciated but somewhat understated. The real message is that citizens of the Inland Empire are being denied access to justice because of the shortage of judges and courtrooms to serve the needs of our growing population and of our economic growth.
     
      During the 2005-06 legislative session, Senator Joseph Dunn (D-Santa Ana) introduced SB 56 to provide for desperately needed new judgeships statewide. Perhaps I am naive, but I am astonished to be told that certain politicians do not want to enact the pending legislation because it will allow Governor Schwarzenegger to appoint "too many judges" and some of them might be the "wrong Democrat" or the "wrong Republican."
     
      Narrow-minded partisanship is allowing the critical shortage of judges to go unresolved, thereby significantly decreasing access to the courts, compromising public safety, and creating an unstable business climate.
     
      We are failing in our duty to be good stewards of the democracy we have been given because we are not protecting the rights of our citizens to a fair and safe means of adjudicating their differences.
      Penny Alexander-Kelley, president
      San Bernardino Bar Association
     
      Dead Certain
      In reading my June 2006 issue of California Lawyer, I noted that "The Case for Deterrence" [ESQ.] did not address the absolutely guaranteed deterrent effect of the death penalty. No matter how many people oppose the death penalty for whatever reasons, one thing is certain: Carrying out a death sentence of a felon who has committed a capital crime always guarantees that the felon will never commit another capital crime.
     
      The principal reasons for punishment-rehabilitation (which rarely works), retribution (which is a pretty good reason), and deterrence-are not fully acceptable to many people. But though hanging a pickpocket while other pickpockets are picking pockets (an old, tired cliche) may not deter the other pickpockets, it clearly deters the pickpocket we hang.
      This is not a facetious suggestion. History is replete with criminals repeating the commission of capital crimes when they have been spared the death penalty for whatever reasons, not the least of which are bleeding hearts who chose to ignore the victims. But not one person executed for a capital crime ever committed another one. That's the foolproof-and most substantial-reason for the death penalty, no matter how much both sides of the issue want to argue its "other deterrent" effects.
     
      It is incontrovertible that carrying out the death penalty absolutely deters the commission of any other capital offenses by the criminal we execute. And that should be reason enough for it.
      Michael Patrick Murray
      South Riding, Virginia
     
      We read with interest Susan Davis's article "The Case for Deterrence." We were disappointed, however, to find that she failed to mention a compelling article on the deterrence issue published in the Stanford Law Review in December 2005.
     
      "Uses and Abuses of Empirical Evidence in the Death Penalty Debate" by John J. Donohue and Justine Wolfers challenges the empirical data used by many economists who conclude the death penalty has a deterrent effect. The article critiques the assumptions of Cass Sunstein and Adrian Vermeule, and demonstrates as well that the data on the deterrent effect of the death penalty is quite fragile.
     
      Donohue and Wolfers's work brings to light three shocking problems with the economists' studies. First, the models are often too sensitive: Small changes in the data have such a dramatic impact that they change a deterrent effect to an antideterrent effect. In other words, what should be a negligible change in data causes the models to conclude that executions actually increase homicides. Second, when Donohue and Wolfers subjected Joanna Shepherd's models to a verification test known as "overidentification," the results were inconsistent with her claims. In other words, they could not replicate her results. Third, the models actually predict that executions cause more rape, assault, burglary, and larceny, results that the economists reject in a footnote without explanation and that Sunstein and Vermeule likewise ignore.
     
      Donohue and Wolfers's article urges Sunstein and Vermeule to rethink their assessment of the currently published literature on deterrence. We, likewise, urge others to rethink the deterrent effect of the death penalty in light of the results of Donohue and Wolfers's rigorous reevaluation and testing.
      Natasha Minsker
      Death penalty policy director
     
      Stephanie Curtis
      Death penalty policy intern
     
      ACLU of Northern California
      San Francisco
     
      Baggage Inspection
      "From Justice, with Baggage" [ESQ., June] is a "hit piece" to which Ninth Circuit Judge Jay Bybee cannot respond. Author Peter Blumberg, named but otherwise unidentified, cites no support for claims that an "infamous torture memo" by the former Justice Department lawyer is "widely believed" to have been adopted but later "repudiated" by his bosses. Noting the judge has ruled in "more than 150 asylum cases," the author summarizes six and criticizes the judge for joining conservatives. He leaves unanswered how the judge sided in the other 95 percent. I don't know Judge Bybee, but I question your decision to publish such an unsupported rant, abetted by your headline.
      Richard McConnell
      Mill Valley
     
      The Fact That
      Howard Posner spent four columns showing "the fact that" to be awkward and cumbersome ["Facing 'The Fact That' " Legalese, June]. Worse, though not illustrated by Posner, it often defeats its users' conclusion.
     
      Authors and speakers too often use "the fact that" when they mean "the falsehood that." Consider a conservative speaker who states, "Democrats are squawking about the fact that Republicans want to poison the air and water." The speaker wants to refute this, but has already credited it as fact. It would be more persuasive to say, "Democrats claim (contend, allege, assert) that Republicans want to poison the air and water," and then argue otherwise.
     
      "The fact that" can be worse than "particularly debilitating." It frequently means the opposite of what its user intends.
      Kurtiss Jacobs
      Concord
     

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