Taking care of people and keeping standards high

In reviewing Philip K. Howard’s Life Without Lawyers: Liberating Americans from Too Much Law, Anthony Lewis points out that those, like Howard, who bemoan U.S. tort law, particularly in the seemingly random way it sometimes rewards people for damages caused by corporations or doctors, ignore a specific part of the socio-political realities of our country: we don’t have the safety nets other countries provide. So when a patient sues a doctor after an unsuccessful medical outcome, a jury naturally enough is going to sympathize and lean toward the injured person regardless of the doctor’s competence — to give the patient money is to give him something with which he may be able to pay for the medical needs created by the bad medical outcome.  In addition, juries are smart enough to know the award comes from insurance, not from the doctor herself. In countries which have universal health care, there’s no need to worry that the patient will be cared for.  In ours, there is.  The same thing goes for anyone arguably injured by a corporation’s product.  Better that injured person has the money to pay for the care he’ll need than not, even if that cost is spread among all the corporation’s customers (through higher prices):

Nor does Howard dig deep enough to explain the excesses of American tort law and the eagerness to seek vast damages for civil injuries. He blames the overreaching of Earl Warren’s Supreme Court in its sympathy for the little man, and the mood of antipathy to large institutions starting in the 1960s. He does not explore deeper social causes.

his country is notoriously lacking in safety nets that are taken for granted in other advanced societies. Medical care is guaranteed by the state, by one method or another, in Canada and all European countries; in the United States upward of 40 million people have no medical insurance. Around 46 percent of employed Americans get not even one day of paid sick leave-which is guaranteed by law in 145 other countries. Lawsuits are often a substitute for safety nets.

There is a historical example that makes the point: workers’ compensation. Employees injured on the job used to have to bring tort actions against their employer; that required proof of negligence, and complicated doctrines were developed by some courts to deny the claims of plaintiffs. Early in the twentieth century a movement led by Louis D. Brandeis-then a reformist private lawyer in Boston, later a Supreme Court justice-sought a system that would compensate the injured without regard to negligence, and in return would bar lawsuits. By 1949 every state had a workers’ compensation law. It is a perfect example of a safety net that assures limited compensation without the gamble of litigation.

Do doctor’s really want to reduce malpractice problems in a way that will satisfy everyone? Then create a patients’ compensation law that provides relief to patients injured by adverse medical outcomes regardless of fault.  Doing so effectively, however, will require there to remain some incentive to provide another wonderful product of our torty system: medical care in this country is provided at a higher standard than anywhere else.  Funny how Howard doesn’t mention that positive result of tort law.  How do we do motivate employers to maintain safe work places despite the fact workers’ compensation schemes have substantially relieved them of the burden of tort liability for failures to maintain safe work places?  Two ways: (1) employers finance workers’ compensation schemes, and (2) the Occupational Safety and Health Administration regulates and enforces workplace safety.

Of course, people like Howard have also argued for years that the financial system should be freed from the “burdens” posed both by tort law and state regulation.  We can see where those very successful arguments have gotten us.