Law & Medicine Clinical Sidebar

One of the most troubling aspects of our legal system is that it does not provide physicians with a "jury of our peers" in medical malpractice trials. Without a jury of fellow professionals who understand medicine, we are left trying to convince a group of laypersons that our decisions were scientifically valid. And, because most of these persons are not trained in medicine or science, there is a significant risk that their decisions will incorporate more emotion than logic. In the end, we are often left with an outcome that is both unscientific and unfair.

One of the easiest solutions to this dilemma is to simply grant us a jury of our peers. While it is true that most physicians are averse to jury duty, our sentiment would almost certainly change if we were asked to serve alongside fellow physicians as participants on medical juries. In fact, our medical societies regularly propose such a system as one of the options for tort reform. Of course, the irony is that this would not actually be tort "reform" at all. Instead, it would simply be the recognition of a right to which we have been entitled all along - a jury of our peers.

Why then has this been so difficult to achieve? Why, despite our vigorous protest and political advocacy has something as fundamental as a jury of our peers been completely denied?

The answer to this great legal mystery can be found in the United States Constitution. Although the Constitution is universally regarded as the document which guarantees a jury of our peers, it actually contains no such language and creates no such right. Although part of the American lexicon, the fabled right to a jury of our peers does not actually exist.

The closest references to any such right are found in the Sixth Amendment, which guarantees a fair trial, and in the Fourteenth Amendment, which guarantees Equal Protection. While these two Amendments have been used to successfully challenge unfair jury composition, the cases have been limited to juries which are stacked against the defendant on the basis of race, age, or gender.

For example, the Supreme Court ruled that an all-white jury's conviction of a black man violated the Constitution. However, the Court has refused to address less flagrant issues of jury composition, such as disparities in education or intelligence. Instead, it has simply stated that a jury must be composed of individuals selected from a "fair cross-section" of the community. And, in accordance with this guidance, jurors are chosen at random from the registered voters in a given community. With respect to the members of the jury, this is the only "right" that we have.

When our Founding Fathers laid the Constitutional cornerstones of our jury system, science was in its infancy and the field of medicine was within the grasp of a layperson. But, more than two hundred years later, the complexities of modern medicine overwhelm the layperson juror, and badly compromise his ability to deliver a just verdict. While a switch to expert juries would remedy much of this problem, it would also challenge the Supreme Court's interpretation of several Constitutional Amendments. And, it must therefore be regarded as a solution which will be difficult to achieve.

In formulating our tort reform strategies, physicians need to be more cognizant of the United States Constitution. Doing so would allow us to recognize that we will not be able to implement expert juries without first overcoming two hundred years of Constitutional history. And, it would also prevent us from wasting valuable resources pursuing the right to a jury of our peers - something that is not even in the Constitution.