Monday, May 7, 2018

Finding a Middle Ground

By Markus Aloyan

I was surprised to learn in David Engel's book, "The Myth of the Litigious Society" (2016), that Americans don’t file injury claims to the extent that most believe. Engel illustrates that a more important question to discuss concerns why Americans are hesitant to file claims. The most fascinating approach Engel took to explain the phenomenon is seen through his analysis of the behavioral reasons for potential plaintiffs choosing to withhold from litigation. My beliefs of the tort system have changed, in terms of knowledgeability, but I do not think that a reform is necessary.

Engel argues that after one suffers from a serious injury, they aren’t able to think rationally. Id. at 172. The irrational way of thinking would cause one to not believe in the merits of their case. During recovery from a serious injury, one may also feel that filing the complaint would be a hassle. One suffers from social isolation and identity confusion – among many other ailments – during the recovery from a horrific injury. Victims of serious injury also might feel shame and humiliation, in terms of their decline in health. Their social skills become impaired, and thus, they are unable to go out in public and find a way to make their claim.

Society does not view those claiming injury in a positive way.  Id. The phrase "ambulance chaser" is applied to injury attorneys.  American society tends to place emphasis on asking the injured to "tough through" the problems that they have. I view this trend with disdain because my grandmother passed away after her doctor gave her more than the necessary amount of pain killers. I wish her immediate family had decided to put a claim in, but they felt that it was "unnecessary." My family's rejection of filing a claim for my grandmother's death, and my desire of filing claim, helped me understand Engel's point more clearly. I have been told that I speak my mind without "shame" or regard for how I am perceived. This notion made itself evident to me when reminiscing about my grandmother. My argument derived from a feeling of apathy toward how we would be perceived for filing a claim. Apparently, many Americans would not have felt as strongly as I do on the matter because of shame – which I do not feel as they do. The negative view of injury claimants causes some to persuade their injured friends to refrain from filing suit as well. Id.

Along with irrational thinking comes nonconscious actions that deter the injured from seeking compensation. Id. at 173. They subconsciously assume that the cost of claiming outweighs the benefits of claiming. Id. Their brains may be damaged as a result of the injury; therefore, their actual way of thinking will be deterred. Id. at 173. It's hard for me to imagine a circumstance in which I would be injured and decide not to file claim. Confidants also believe that I have a "near hypochondriac" level of anxiety, specifically when it comes to my health; therefore, I am unable to empathize with the victims in this situation.

The idea of an injury being a social construct also prevents the injured from filing suit. Id. at 173. Engel discusses a procedure that I, unfortunately, needed as an adult. I needed to have a circumcision for medical reasons at the age of twenty-five. Engel points out that the recovery is an injury, but many view this is form of body mutilation or as natural. Id. at 174. Therefore, although there is intense pain and discomfort, I would not be viewed as injured during my recovery. Many of my peers were unable to empathize because children have this procedure done regularly. Thus, I would not be perceived to have been injured while recovering. Some injured victims do not file suit because they feel that they are not up to society's standards of injured. Id.

Injuries can be obtained through "natural causes," making the injured hesitant to file a suit. Id. Engel points to staircases as a cause of many injuries. People did not have alternatives to staircases for large periods of human existence; which made these injuries perceived as being obtained through the lack of one's own awareness or of being negligent. I was surprised that I had never considered this argument. I never thought about the possibilities of safer alternatives being a deterrent to injuries, which would also lead to more claims. I would file a claim, regardless of available alternatives. I was surprised to realize that dangerous places where accidents would be deemed inevitable were free of liability of injuries. I assumed that if one was not contributorily negligent, one would be able to file a claim.

Engel's next point surprised me. He discusses the method in which injuries may be "invisible" to victims if they were the result of a manufacturer's error. Id. at 175. He provides an example in which drivers injure children when reversing. He wrote that although the driver would be at fault (in today's standards), the parents of the child can be perceived as the guilty party. Americans assumed that cars were inherently dangerous, and thus the driver or the manufacturer of the automobile should not be liable. Cars are now equipped with cameras that show the driver their rear view while reversing. This instance would result in a different outcome today, but the fact that people would be so ignorant as to the guilty party in this situation is alarming.

My thoughts on the tort system have changed, slightly, while reading this book. Engel points toward sympathizing with victims of injury. I believe that some tort victims are overcompensated for their injuries. Monetary value does not bring back the quality of life that one sustained before any injury. If my arm were amputated, as a result of medical malpractice, my life would be drastically different; however, I would be living the "regular" life for an individual born with one arm. The idea that a monetary payment would "make me feel whole" would be insulting to one born with one arm. I sympathize with the injury victims who are too scared to file suit (for any of the reasons mentioned above), but I do not think the injured deserve pity when they are "awarded" large monetary sums. I believe that the American tort system functions properly. If more claimants filed suit, I believe that the ramifications of clogged judicial systems, and constant payments to the injured, would hamper our economic growth that has led to the quality-of-life standard that Americans enjoy. Before reading this book, I was one of the Americans who believed Americans were "trigger-happy" with tort claims; however, now I am neutral on the subject. I am content with the amount of case filed.

Conservatives and liberals argue on how to "fix" our tort systems. Conservatives would like fewer tort claims, while liberals would like to see more tort claims. I feel that both would have drawbacks. A liberal system would cause damage to our economy. More large companies would be litigated against for injuries that could have been avoided. The price of consumer items would increase because the companies would incur more expenses. I do not think it is fair for McDonald's to increase the price of the Big Mac sandwich for all customers because some, for example, decide to file a claim against them. The conservative approach also brings inequality. Their approach brings about unfairness, in regard to an over-protection of large businesses. A middle ground must be obtained.

I believe that Americans in poverty need better access to tort cases. I, as a college student,
would only consider "lumping" because I would not want to hire a lawyer. Americans living in poverty are able to use a government employee for defense matters. I believe that depending on the circumstances of the situation, they should also be allowed to use a government employee-attorney to file claims. A government agency can be set up to determine the way this would work. If the United States government decided to cut waste and stop unnecessary spending, there would be more than enough tax-payer money to fund this sort of program. A portion of winnings can be taxed if the government attorney helps to secure the victory in court. Therefore, I believe in tort reform to help the poor.

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