Friday, May 25, 2012

Reason #200: Tort

One of the more surprising themes to emerge from this blog over the last nine months is, from my point of view, the overall efficacy of the judicial system; the fact that for all its lethargy, for all its biases and redundancies, the process itself is actually impressively reliable for producing results that, while not always ideal, generally stand up to broad moral scrutiny. And I say that as someone who's ranted more than once in this very space about the criminal justice system; the death penalty and mandatory minimums in particular.

I've also mentioned once or twice that I work at a law firm myself, and I thought this would be a good opportunity to talk a little bit about that. The firm specializes in medical malpractice defense, which means that if a surgeon leaves a sponge in you, we're the guys who come in and say it was like that when he got there. That, combined with the fact that our actual clients aren't the doctors themselves but the enormous insurance companies the hospitals hire to cover them, means that my shorthand for explaining all this to people is that "we're the bad guys".

That's mostly just me being glib, but the fact is that it's written into my DNA to empathize naturally with whomever in a given conflict I perceive as having less power. Frivolous lawsuits--and believe me, I've seen a lot of them in my job--are absolutely a bad thing, and I recognize how they can be damaging to doctors, hospitals, and the entire medical establishment, but I've also been a patient; very recently in fact, and I know how scary that can be even without adding on the thought of something getting screwed up.

The thing that I like so much about the system is that it seems to recognize that it can never be perfectly balanced, and thus allows for a lot of wiggle room based on precedent and the particulars of any given case. Given that all law is human and therefore fundamentally imperfect, my method is to visualize each side's worst-case scenario, acknowledge that one or the other is inevitable--getting an abortion will always be either too hard or too easy--and decide which I'm more comfortable allowing.

Getting back to malpractice cases, I side with the patients not because having less power makes them inherently right, or because doctors, hospitals, and/or insurers are less deserving of a robust defense, but because I think the average doctor is more capable of recovering from a bullshit lawsuit than is the average patient from a botched procedure.

I see the delineation of the powerful's control over the powerless as the prevailing theme of not just the justice system but the entire American style of governance, and as precise as it is in some ways, it is genuinely impressive that the founding fathers built in as much flexibility as they did; especially in the courts, of all things.

Even a child can look at something like the famous McDonald's hot-coffee case and recognize that it's frivolous; indeed, it's very, very easy--and very, very common--to complain about how there are too many lawsuits. Tort reform is something that should absolutely be debatable at all times and in all contexts, but I draw a very important distinction between appreciating the existence of a complaint, and agreeing with it.

In other words, I may not always approve of your lawsuit, but I'll defend to the death your right to sue.

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