Contrary
to popular belief, people do not usually sue when they are injured. This is the
lead-in offered by Professor Engel in “The Myth of the Litigious Society, Why
We Don’t Sue.” He addresses the confusion associated with an empirically
unfounded theory about Americans and the law, that our society is flooded with
lawsuits that are frivolous and overwhelming to our legal system. The
oft-repeated narrative that personal injury lawsuits and the damages awarded by
juries in the United States are out of control is not supported by evidence. Furthermore,
the cases reported in the media, such as the infamous McDonald’s Hot Coffee
Case, used by tort reform advocates to justify limiting people’s access to
civil justice are either outliers or framed in ways that distort the facts and
legal reasoning. This myth is both pervasive and durable.
Professor
Engel describes what he refers to as “lumping.” These are instances where the
victim does not take action to seek compensation from the wrongdoer. Lumping,
according to Engel, is not merely refraining from filing lawsuits, but also
‘not confronting the injurer in any significant way to seek redress’ to instead
‘rely on whatever resource – financial, psychological, and spiritual – they can
muster on their own’ (page 21).
Professor
Engel explores some of the reasons why victims of injuries do not seek legal
recourse. Indeed, society often holds a negative view of those who seek
compensation, stereotyping them as greedy and deceitful. Professor Engel further
explains that the victim’s cognitive abilities may be biased by the injury,
leading to irrational thinking. He describes injury as a cultural construct, and
what may be compensable is often not seen as an injury due to cultural framing.
Dangerous situations leading to injury are perceived to be part of the natural
environment and inevitable, so the victim may blame their own carelessness
instead of external factors. Finally, deliberate choices made by manufacturers
and service providers are seen as unavoidable and thus the blame is again
placed on the user. Professor Engel provides a sophisticated and holistic
calculus based on physical, psychological, social, cognitive, religious, and
moral attributes of injury and response. These comprise the initial construct
of a model which describes lumping more accurately than was previously
understood. He further explains that these attributes are very much
interconnected.
Professor
Engel presented empiric data and a framework – all of which was revealing to
me. There was a disconnect in my understanding between this information and my (previous)
belief system as to the state of the civil legal system. My impression was that
the United States was in crisis – in need of “tort reform.” This view was
pervasive throughout my colleagues in the medical community and supported by
what I heard over years from the media and various politicians.
I recall
that, during his second term presidency, President Bush - up on the podium - fervently
arguing the necessity for “tort reform.” Congress was urged to enact
legislations that would limit recovery in malpractice cases, but also to limit
liability for manufacturers of drugs and other medical products – all of this under
medical liability reform. According to President Bush, such legislation was
necessary because a proliferation of rampant "baseless suits" extending
"all across this country" had resulted in high insurance premiums, in
the practice of "defensive medicine" by doctors, and in an exodus of
doctors from the medical profession. However, given Professor Engel’s evidence
of stability in the civil justice system, it would be surprising if either the
defensive-medicine claim or the physician-flight claim are capable of withstanding
empirical scrutiny.
Advocates
of malpractice-liability "reforms" have attempted to shift the blame
for increased malpractice premiums onto the civil justice system, and the blame
for the lack of access to affordable, quality healthcare in the United States
onto malpractice victims and their attorneys.
How
could crisis themed in excessiveness and frivolousness exist in a setting of claims
lumping? This doesn’t seem to add up. On one hand, the narrative at large is
that courts are flooded with claims, many being frivolous. On the other hand, Professor
Engel provides sound evidence that injuries seldom make their way to the
courts. The equation is - on one end there
is an influx of injury. In turn, some of these are passed into the civil
litigation system. Germaine to the former, we know that a large number of
injuries do indeed occur. For example, in health care, medical errors account
for a disproportional number of accidental deaths. Daniel P. Kessler &
Daniel L. Rubinfeld, Empirical Study of
the Civil Justice System (Nat'l Bureau of Econ. Research, Working Paper No.
10,825, 2014) Yet, very few of these go to the next step and are actually are
passed into civil litigation. The logical inference is that this “crisis,” in
large part, is borne of urban legend. The real crisis is that the overwhelming
majority of those who are injured are faced with a prospect for redress that
seems insurmountable. Yet, the proposed solution at large is to raise the bar
by limiting recovery. This appears to be an overt failure on the part of
society in favor of the insurance industry. This raises even further concerns.
President Bush was either intentionally deceptive, or was unaware of the facts.
Also, there might be other variables that I’m not aware of. I might be naïve,
but I have generally believed our leaders to be honest, sincere and acting in
the best interest of the public. I am left dismayed and perplexed by this.
Medical
malpractice, while only one of the injury modes, is certainly reflective of the
larger issue of tort reform. Indeed, the debate over medical malpractice law is
at the heart of the tort reform movement. The United States is, in fact, suffering
from a healthcare crisis. However, contrary to the arguments of those who
support tort reform, there is no medical malpractice lawsuit crisis. Instead,
there is malpractice insurance crisis.
More pointedly, the crisis in malpractice insurance is better stated as a
campaign to increase profitability. Advocates of malpractice-liability
"reforms" have focused the blame for increased malpractice premiums
onto the civil justice system, and the blame for the alarming lack of access to
affordable, quality healthcare in the United States onto malpractice victims
and their attorneys. The large number of medical errors provides the fuel for
the crisis. Of the injured victims, their inability to attain redress completes
the loop. This is perhaps at the heart of the crisis. On the other hand, there
is no medical malpractice lawsuit crisis. This is an illusion. Overall, the
"lawsuit" crisis appears to me to be nothing more than a fraudulent
public-relations creation, which is aimed at imposing radical restrictions on
common law liability.
Moreover,
by joining forces with insurance companies and other healthcare industry
giants, physicians and other health care providers have done themselves
significant harm. Physicians have missed the opportunity to join with
consumers, taxpayers, and the mainstream in an effort to resist ongoing
business transformations that limit physicians' day-to-day exercise of medical
discretion much more than do the remote
possibility of lawsuits. As a result, physicians have lost autonomy, and are
controlled by insurance companies. Specifically, reimbursements are under the
exclusive control of insurance companies. In turn, these companies are driven
by profit and loss. Lower reimbursements have resulted in increased
profitability for the insurance companies. At the other end, tort reform embodies
the placement of caps on damage awards. So, insurance companies are tightening
their grip by limiting the reimbursement for physicians, and under the smoke of
“tort reform,” limit the awards to injury victims. This all speaks to the the
pursuit of economic gain for the insurance industry. Yet, this is the obvious
and rational conclusion. Driven by capitalism, the insurance industry is
sociopathic. It has one goal – to perpetually improve its bottom line. It
cannot and does not portend to provide an equitable remedy for social injustice.
Hence, the fact is that an intact tort liability system remains the principal
vehicle for holding healthcare providers accountable for medical errors. Tort
law represents a reasonable means for ensuring patient safety. This leaves the
civil justice system in the position of being, not only the primary regulatory
vehicle for compensating wrongfully injured patients, but also as the principle
body charged with deterring medical errors.
Tort
reform would further restrict practicing health care providers. On one end,
they would continue to be the primary targets of the civil litigation system,
while on the other, their poorly placed alliances result in an eroded ability
to influence patient outcomes. Overall, this bodes poorly for the health care
in general.
Legislatively
imposed restrictions on medical malpractice liability will only serve to limit
the liability of negligent healthcare providers, to bolster profits of insurance
companies without significantly improving the quantity or quality of medical
care. Worse still, such restrictions will deprive innocent victims of their
right for redress of wrongful injury, and will greatly reduce the capacity of
the civil justice system to hold negligent professionals accountable for their
wrongful conduct.
Reform
of the US tort system as it relates to medical malpractice would take into
account a number of variables. First, the practice of defensive medicine is not
necessarily bad. While defensive medicine signifies treatments that do not improve
the quality of healthcare, my impression has been that, while this may occur,
it is not pervasive. Instead, physicians are driven to exercise care and to practice
at a skilled level. We are encouraged and often required to maintain Board
Certification in our respective disciplines. The requirements are significant.
They include a “re-certification exam” taken every ten years along with
Continuing Medical Education requirements and other measures. The process is
not a trivial one. It requires a commitment of significant time and money.
Further,
my experience is that those few physicians who have left medicine have done so
due to the restraints and complexities of contemporary practice imposed by
insurance companies. For example, one almost requires a degree in computer
science to operate effectively. For most of us, malpractice insurance has not
been a limiting factor.
It is largely
ineffective to have the private insurance industry control outcomes. This is
not to cast blame, as they are driven by a system of capitalism. They function
as they should – a well-oiled machine that moves forth with momentum, relying
on predatory practice and driven by the pursuit of profit. History has taught
us that such enterprises are ineffective at doing anything but
profit-mongering. They have no stake in doing service to society simply for the
sake of doing the right thing. Capitalism, with all of its benefits, is
incapable of looking out for the greater good. Therefore, they should not be
expected to consume this burden.
The New
Zealand system of recompense is attractive for a number of reasons. Hence, my idealized,
magical and naïve solution would be to adopt a modified New Zealand system.
First, governmental control of special damage awards would allow greater access
for injury victims. This would include compensation for living and medical
expenses. Many of the psychosocial barriers that Professor Engel describes as
barriers to the average injury victim would be reduced or eliminated. A claim
for injury would be simpler and without the layers of difficulty that currently
burden the injured. More people would have easier access to compensation. Removing
the insurance industry from this portion of the equation is necessary. In my
view, this is probably the most important first step in finding a solution.
Overall, the goal is to remove insurance from the mainstream and away from the
decision-making process when it comes to providing for the immediate financial
and medical needs of injury victims.
The
Federal System, in my view, should also maintain a stronger influence in
overseeing medical health care safety. To accomplish this, they may provide incentive
for providers who practice competently, avoid committing malpractice, maintain
board certification and fulfill other requirements. They should also oversee a
system that monitors and reacts to physician errors. Finally, they should seek
to minimize errors in health care, perhaps through a sector of the National
Institute of Health.
Finally,
the tort system should remain in-tact and available for general damage awards
such as pain and suffering. The insurance industry would remain viable but
would have a reduced footprint and influence. The insurance industry should be
federally regulated in as much as setting the upper limits on premiums. In this
regard, the goal would be a balance between public interest and reasonable
returns for the insurance companies. This would allow a system that remains somewhat
respectful to seventh amendment considerations.
It may
be construed that to incorporate a federal system would effectively add layers
of complexity and inefficiency. Arguably, it might also be an encroachment on
seventh amendment rights to the extent that claims are removed from the
judicial system, thus denying injury victims access to trial by jury. It may
be, however, that as the US population evolves socially, that reform would be a
natural byproduct.
Perhaps
the first step in reforming our legal system is a deeper discernment of who we
are as a society. This might include recognition that perhaps the social
conscious is not as “evolved” as we might like to think. For instance, it was
not too long ago, and during my youth, that African Americans were regarded by
the mainstream as being an inferior race. Their rights were restricted. During
that time, a legal system based on deterrence, corrective justice and
punishment were reflective of societal awareness. In the modern era, however, society
is more inclined than previous towards racial and gender inclusion and equity. While
far from perfect, some gains have been made. On multiple fronts, the boundaries
of what was deemed acceptable some years ago would be considered deplorable
according to present day standards. In all cases, the modest gains of today
were not simply handed over by the “moral majority” – they were hard-fought. This
may well require that our legal playbook be updated to reflect contemporary
consciousness. Certainly, this may include reaffirmation of the goal of the
civil litigation system - that being to serve all of our people, while at the
same time, it is not to line the pockets of insurance. The function of the
civil litigation system is to serve society – not of years past, but of present
day. If this be the case, then to allow private insurance to remain at the
forefront of the charge will continue to be deleterious. The only certainty within
this paradigm is that their profits will perpetually increase, at the expense
of all else.
The continued
evolution of social consciousness appears to be take place at a generational
pace. To this regard, Professor Engel has made significant contribution. He
effectively argues that we are all interconnected, and so are our minds,
thoughts and emotions. He offers a model of injury and response based on a
holistic view of the human, who is at the heart of the injury. Professor Engel
articulately describes the effect of trauma on the emotional and cognitive
function. All of this begs for a solution in which society more effectively
cares for the needs of the injury victim.
