Friday, May 11, 2018

Injury Litigation in America: Out of Control, or Endangered?

By Daniel Whited

The belief that Americans are notoriously litigious is by and large influenced by those who seek to reform tort law. In his book “The Myth of the Litigious Society,” Professor David Engel provides empirical data intended to discredit the assumption that Americans live their lives one lawsuit at a time. He is able to accomplish this by providing insight into the minds of those injured and examining alternate theories as to why so many victims of injury fail to assert a claim against their injurer. Policy goals in tort law are to make a person “whole” again, to compensate those who have been injured as a result of another’s negligent or reckless actions, and to deter behavior that is detrimental to society, all of which fail to address the underlying societal issue that lies not in America’s purported lawsuit obsession, but rather our reluctance to bring a cause of action for injury at all. “Researchers have decisively refuted the myth of litigiousness, but legislatures across the country have nevertheless adopted ‘tort reform’ measures aimed at curbing the imagined proliferation of injury litigation” (Engel at 3).

In support, Engel offers a 2012 National Safety Council survey which found that one in every eight, or more than 38 million, Americans suffered physical injuries as a result of accidents that were serious enough to require medical treatment, with an additional 127,000 resulting in fatalities. The available analytical data suggests that as many as nine out of ten victims of accidental injury assert no claim at all against their injurer. I began this book believing that Americans were notoriously litigious and did not rebuke the notion of tort reform. However, the responses to accidental injuries provided in table 2.1 suggest that reform must come in the form of understanding what could deter eighty-one percent of those injured from asserting a claim. The author subcategorizes the injured into two groups, those who engage in lumping and those who engage in claiming. The two are antonyms by definition, with the former being one who absorbs the wrong rather than taking action against another party, and the latter is defined as any effort by an injury victim to force the injurer to provide a remedy. Those who lump make no determined effort to shift any of the financial burden associated with their injury to the injurer, but rather, they rely on whatever resources they have at their disposal (i.e., financial, psychological, and spiritual).

Professor Engel further attempts to explain the reluctance of Americans to confront their injurers by scrutinizing the existential change brought about by the injury, noting, “[P]ain reorganizes our lived space and time, our relations with others and with ourselves” (Engel at 41). Additionally, notable markers include struggling to think clearly, act decisively, and social isolation. Injury often gives way to compromised thought processes such as depression, disorientation, confusion, and anxiety, with prescription drugs further disrupting the injured person’s ability to think coherently. Professor Engel uses all of this data to theorize that our approach to studying tort law is fundamentally flawed based upon the idealization that “most analysts ignore their consequences and blithely assume that injury victims make balanced and rational decisions” (Engel at 51). I am in agreement with the author and would like to see advancements in tort analytics, focusing on increasing awareness of the blatant disassociation between proponents of tort reform and the lack of empirical data to support the myth which inaccurately portrays injured Americans as litigation-crazed maniacs.

Tort law exists to provide those who are injured a remedy to become “whole” again by requiring the injurer to pay for the loss incurred as a result of the sustained injury. Damage awards are in place to deter others from engaging in similarly negligent or otherwise reckless activities, ultimately recognizing that most tortious injuries are detrimental to our society in general. Continuing to marginalize the impact that injury has on both sociocultural and socioeconomic factors for the sake of perpetuating tort reform serves as a blatant contradiction to the overall policy-driven goals that make up American tort law. The present issue comes down to determining a proper course of action to “…reassess, and propose an entirely new framework based on the best information available about human cognition, injuries, and decision making" (Engel at 65).  Failure to do so ultimately suggests aversion to another American legal preoccupation, “getting it right.”

We are at a juncture in American tort law that demands attention; however, proponents of tort reform will likely continue to perpetuate the idea that we as Americans are too litigious and suit-happy. Conversely, failure to engage in meaningful dialogue aimed at restructuring the framework through which we view injury claims will undoubtedly increase social and cultural stigmas associated with claiming, thus resulting in fewer victims attempting to seek redress. The answers may not be found in more bright line rules, but rather in “…the substantial body of research dealing with injury victims, and the role law actually plays” (Engel at 190).

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