The reappearance of O.J. Simpson in a courtroom rekindles memories of his 1995 murder trial and provides a good framework to explain a medical-legal principle that is almost universally misunderstood.
The misunderstanding is rooted in a scenario that is almost always the same. The story begins with a doctor who diligently discussed the top twenty-five potential side effects of a medication with his patient. But unfortunately, the patient developed the twenty-sixth side effect, which the doctor did not mention. As the story goes, the doctor was subsequently sued for malpractice. And, of course, he not only lost the case, the jury awarded the patient an enormous amount of money.
The moral of the story is that physicians are now obligated to discuss the top twenty-six side effects of every procedure, drug, or treatment with the patient. The situation is nothing short of ridiculous, but seemingly unarguable because the case sets legal precedent. Or, so we are told.
When we hear tales like this one, which conclude with an impractical recommendation, we should respond by telling a story about O.J. Simpson. As we all know, O.J. was accused of murdering his ex-wife. His trial was a highly publicized, made-for-Hollywood affair. Johnny Cochran represented O.J., and he completely outmaneuvered the prosecuting attorneys, who were led by Marcia Clark. In the end, despite a large amount of incriminating evidence, O.J. was found not guilty of murder.
In the aftermath, there was considerable criticism of Marcia Clark's performance. Many people speculated that she lost the case when she asked O.J. to try on the bloody glove. And, of course, Johnny Cochran capitalized on her mistake with the now infamous, "If the glove doesn't fit, you must acquit." Although it certainly seemed like O.J. killed his ex-wife, Simpson walked out of the courthouse that day a free man.
Now, if the moral of the first story is true, then the O.J. case also sets precedent. This would mean that the next football player who is accused of murdering his ex-wife must also be set free. All that he would need to do is appear in the courtroom and state, "Your honor, on the basis of the precedent set by the O.J. Simpson case, it is clear that I am also not guilty." In a sense then, the O.J. verdict gives all football players, or at least all running backs, the ability to murder their ex-wives without fear of legal consequences.
Of course, all of this is nonsense. Although the jury found O.J. not guilty, the case did not change the law with respect to killing another person. The act of murder was and is illegal regardless of whether the jury convicted Simpson. Juries do not change the law. They merely decide whether someone has broken the law, or committed malpractice, as the case may be. Because a jury's role is limited to ascertaining the unique facts of one case, a jury verdict does not set precedent and it cannot be relied upon or cited in any other legal proceeding.
The O.J. jury did not legalize murder and a medical malpractice jury cannot change the standard of care, alter the doctrine of informed consent, or amend the definition of patient competency. The law is the law, regardless of the jury's finding.
Outlandish jury verdicts may be the result of poor attorney performance, errors by the judge, jury sympathy, or a combination of other intangible factors, none of which are relevant to the care of our next patient. It is unfortunate that we are regularly told to change the way we practice medicine on the basis of a jury verdict. The idea that twelve ordinary people can dictate what we must discuss with a patient, determine what we should write in a chart, or alter the indications for coronary bypass grafting is simply absurd.
Jury verdicts make interesting conversation, but the legal principles which underlie the practice of medicine are very slow to change.
