Wednesday, April 18, 2018

Why does the dog not bark in the night?

By Ayesha Malik

In our self-perceived world, there are numerous injuries reported annually in America. However, the statistics tell a different story: injury victims seldom press claims against the injurers and almost never take action. What they do is a phenomenon called “lumping.”
Lumping is when the victim does not take action to seek compensation from the wrongdoer or the injurer for the injuries sustained.[1] One who exercises the act of lumping, is the one who absorbs the wrong rather than taking action against the aggressor. Relying on one’s own health / accident insurance or on government benefits are all forms of lumping. An injury can be defined as an act that damages or hurts.[2] When people suffer an injury, it impacts them not only physically but in a variety ways: emotionally, mentally, and it often clouds their sense of proportion for the loved ones and friends around them. A general conception about the Americans is that they file lawsuits more, but it is not the case. Injurers lump instead of lodging a claim. The number of people who actually bring accusations or litigate are very less.

The following paragraphs will address the numerous issues that contribute to lumping rather than lodging a claim against the injurer. It might seem farcical, but sometimes injury victims might not even know whom to bring proceedings against or cast blame upon. In case of severe injuries, the victim is invariably left emotionally and physically insensitive, unable to process information logically and seek legal help from an attorney. Medication given in context of the injury at times has capacity to impair judgment, leaving the sufferer exhausted / lethargic and very often give rise to tendency to give up and not fight. Injury victims mostly are not able to think rationally.

In certain situations, one does not even find bearing for whom to bring a case against.[3] For instance, if someone falls off a chair and as a consequent severely injures their back, the chances of lumping become high in this case. According to the author, reason being a chair has contributed to the naturalization of our daily needs and with our physical environment, and thus it tends to suppress the urge to blame and is more inclined towards lumping.[4] Some people do not even regard an injury when they encounter one - they are too oblivious to that.

Personality plays a huge part in this and individuals who suffer may well play a blame game; attributing the injury to the Will of God or pinning it on fate.[5] People tend to have a different coping mechanism when they get injured. They would blame themselves imputing the cause of their injury as God Ordained. Belief is having earned God’s Annoyance. For example, “God Angrily wanted to punish me for my sinful negligence and had I honestly looked supervised my child, she would not have gotten hurt.” Often times, the opinions of people around us shape our behavior, consciously or unconsciously; it attributes to the act of lumping rather than claiming. People around them in their immediate circle or neighborhood might subconsciously discourage it, for example, the greedy plaintiff accepts money in lieu for his daughter’s injury caused from working in a big company. The latter shows that people who are important in one’s lives are most likely to reinforce their stance towards scripts of conflict avoidance and not leaning to the pursuit of compensation or assertion of rights.

According to the author, cultural differences play a prominent role in finding out the reasons for “Why the dog does not bark in the night?” Injury victims suffer pain that varies in intensity. Pain experienced also varies culturally. For example, circumcision - the surgical removal of the male gentalia’s foreskin. This procedure is generally perceived as injurious in America but in many other cultures, due to religious convictions, it is not considered as an injury rather promoting hygiene and health giving.[6] This tells you how some things are not even regarded as an injury even though one might suffer temporary pain.

In the author’s opinion, some cultures also promote lumping. The society might discourage why people are claiming. For example, sticking up for one’s rights can be seen as an admirable feat in context of one cultural but contrarily, selfish and destructive in the other. People might look at the claimant who is filing a lawsuit, as a cruel entity and portray them as money eaters demanding monetary compensation in lieu for injuries sustained to their loved ones. The latter attitude gravitates to greed if noticed that the side being sued is a big corporation. This can negatively impact people who belong from lower socio-economic class. They can get discouraged and lump their case rather than actually claim for what they deserve.

Not knowing who to blame can also be attributed to the cultural and cognitive biases that are embedded naturally or acquired over time by individuals. Cognitive biases also play a part in forming our wrong belief regarding the U.S litigation system. For instance, past experiences can alter / influence the mindset of people and prime them towards a certain resolution by discouraging litigation. Also, the negative opinions of people towards bringing a case forward can subconsciously alter one’s mindset in that direction. Mere exposure effects; quantifying previous experiences regarding lumping can shape one’s mind automatically. For instance, numerous incidents of friends regarding claiming can shape the idea that Americans sue a lot.[7]

In sum, there are several reasons; social, cognitive, cultural that all contribute to Americans inclined to the idea of not to lodge a claim after suffering an injury.

Before reading the book, I was not even aware of the idea of “lumping” and what it is. It is the personality of the individual, the mental ability and society that contributes towards lumping prominently. The book stated that we think Americans sue a lot; I had a typical assumption because of all the tort reforms and the recoveries associated, aim towards giving recovery and not overcompensate the victims. After reading the book, the statistics show otherwise; albeit, they are not updated and focus should be more on recent studies and assess whether anything has changed regarding that. People communicate more today; the situation or trend now, may well be changed. The reasons stated for lumping are valid and makes sense but in my opinion, although they are overstated.

McDonald’s coffee spilling case - until the plaintiff claimed, they did not comprehend that they serve extremely hot coffee.[8] McDonald's should have already been aware of this fact, rather than come to know only after a woman lodged a claim upon received third degree scalding burns. It is not prudent to serve coffee at such elevated temperatures where people get exposed to such hazard and are prone to injury. However, if the above receives encouragement, an epidemic of frivolous lawsuits will start opening floodgates to litigation. This itself will be the next problem to address. Safety of products should be done before it is given to consumer so such problems do not exist. Some injuries might be considered normal until a safer alternative does not come into play. For example, falling off a staircase can be the result of a bad design that people can claim or cars without cameras are unsafe that are helpful in preventing accidents. The goal should be to come with the safest product, conduct efficient test and trials prior putting the product for consumer use.

Nevertheless, realizing lumping as a trend is important because that negatively interferes with the tort system that promotes deterrence, reduction of injuries, distribution of injury costs among a broad group of people, and the enforcement of norms of fairness and justice. There are several remedies that can be taken into consideration.  For instance, creating more awareness regarding the reality of lumping and those cognitive biases that shape one’s everyday thinking. This will lead to people overcoming their fear of inaccuracies about claiming and would encourage lumping. Increase access to lawyers, highly likely that people may lack the resources, litigation can be very expensive. In general, create safer products and educate people regarding proper use (example, children not to be seated in front or with a child seat at the back) to prevent injuries. Enforcement of laws and safety standards and practices will reinforce the policy for aim of deterrence.

Advertisements are placed to shape people’s minds toward prevention of personal injury; lawyers then run more advertisements to counter the same. People would be able to see both sides to the story then and can better analyze the situation. I agree with the idea of the author: “what can be constructed can be deconstructed and reconstructed.”

Different stories about injury victims who claim and varied opinions of people regarding it can do the reverse job and result in less lumping. Although the focus of the book was not to solve the problem but address why it happens. Collective efforts are needed to address the issue of preventing injuries, achieve fairness, and protect victims from devastating financial and personal losses.

If given a magic wand, I would propose the adoption of New Zealand’s system. It accords compensation regardless of the fault of the party. It provides benefit from the government run-Accident Compensation Corporation (ACC). So injurers would get compensation regardless of fault and they would not have to go through the lengthy process and time-consuming process of litigation. A no-fault system may have some unique advantages over the present system, such as decreased administrative and legal costs, and compensation based on loss rather than caused by negligence. However, this has its own drawbacks. But at least the problem of litigation would not be there.  But we would have the problem of not deterring the behavior of the person who caused it which is one of the aim of tort law. However, the cost of litigation would be reduced to a great extent. If people are not claiming against the injurer, the goal of deterring the behavior is not being met so might as well change it and either way deterrence is not being accomplished to a great extent. The ACC provides generous no-fault benefits, including hospital and medical costs; wage replacement, starting only one week after injury, at a rate of 80% of average weekly earnings; rehabilitation and transportation costs; lump sum payments for permanent loss or impairment; and entitlements for surviving spouses and children.[9] On the other hand, tort system operates to shift the burden of losses from innocent plaintiffs to negligent defendants. It allows that loss to be distributed through insurance policies, among the entire group of citizens who participate in dangerous but socially valuable activities. The costs are being borne by the plaintiffs because they are not claiming.[10]

In conclusion, there are several reasons for why people do not claim against their injurer and engage in lumping. However, efforts should be made to change it for the better and focus can be on other successful countries and what they do.

[1] David M. Engel, The Myth of the Litigious Society 20 (2016).
[2] Engel, supra, at 126.
[3] Engel, supra, at 89.
[4] Engel, supra, at 126.
[5] Engel, supra, at 59.
[6] Engel, supra, at 131.
[7] Engel, supra, at 59-60, 147.
[8] Engel, supra, at 192.
[9] Peter H. Schuck, Tort Reform, Kiwi-Style, Yale. L. Rev. 187, 199 (2008).
[10] Schuck, supra, at 199.

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