On May 16, The New York Times published an article that described, among other things, the following research finding: Medical malpractice liability improves, rather than harms, patients’ safety. The article, which summarizes the findings of a published study, implied that although this finding would surprise many people, because it contradicts conventional wisdom, the evidence, in fact, supports the role of medical malpractice liability in improving the quality of patient care.
The fact that people would find it surprising to learn that holding providers responsible for medical malpractice would reduce the rate of medical malpractice is itself somewhat surprising. I will suggest in this column that people’s assumption about the harmful effects of malpractice liability betrays a “playground rules” mentality about non-intervention in private interactions, a mentality that better suits a group of schoolyard bullies than a nation of responsible, justice-minded adults. That mentality could be captured by the phrase “anti-litigation mindset.”
The Mindset
The mindset that I describe may seem “Republican” or “conservative” (as opposed to “Democratic” or “liberal”) to readers. I would argue, however, that the anti-litigation mindset has pervaded American thinking in ways that transcend party lines. Whether liberal or conservative, for example, virtually everyone with whom I have had conversations about the issue readily offers his “common sense” conclusion that the threat of medical malpractice suits has accomplished each of the following bad outcomes: (1) It has forced doctors and hospitals to charge patients cripplingly high prices for care, just to cover the costs of medical malpractice insurance; and (2) It has forced doctors to practice “defensive medicine,” in which they perform unnecessary and potentially harmful tests and procedures (e.g., the astonishingly high Cesarean-section (“C-section”) rate), to avoid medical-malpractice litigation. The result, according to this conventional wisdom, is that patients suffer, through no fault of doctors or hospitals, because of what lawyers do.
It appears, however, that doctors and hospitals in the United States actually charge the high rates that they do mainly because they can. The mix of patients with and without medical insurance coverage, and the particular relationships that health insurance companies develop with different providers in diverse locations, both help obscure the arbitrariness of the radically varying price tags attached to medical services in the United States. In addition, it appears that the performance of unnecessary tests and procedures reflects the simple economic fact that the procedure you endure produces greater monetary gain for the provider than the procedure you forgo. On the C-section front, consider that a C-section takes very little time, may be scheduled to the obstetrician’s convenience, and is enormously lucrative for a hospital, while a vaginal delivery takes many hours (and sometimes days), has a frustratingly unpredictable onset, and earns a hospital (and doctors) far less money than its surgical alternative.
Notwithstanding the contrary evidence from, for example, states that have put malpractice caps in place, many people still believe that we would all have an easier time getting the proper medical care for affordable prices if we strictly limited medical malpractice liability—if, in other words, the lawyers would just go away. When people cling to views like this—views that fly in the face of factual evidence—it may be because their unsupported assumptions confirm an existing ideology. The anti-lawyer mindset that we often see in our culture, in other words, may have a more powerful resonance for people than the facts about medical malpractice litigation and its role in mediating the price and quality of medical services.
A More General Phenomenon
The anti-lawyer bias that people hold may reflect a broader phenomenon than simple opposition to attorneys as such. My own observation is that it reflects the view that in private disputes between people who encounter each other in either a business or a personal capacity, everyone should generally be presumed fully capable of adequately representing her own interests. As in the playground at school, people tend to regard it as suspect to “tattle” on the “mean kids” and far better to “fight your own battles” and “stand up for yourself.” Litigation, like going to tell the teacher on a classmate, is thus taken as a sign of character weakness.
If I am right in this observation, then it is easy to see how such an attitude would translate into an antipathy for those who seek assistance from the legal system in “fighting their battles” (along with those who provide the assistance—lawyers). Why go to court and seek a more neutral, legally informed, arbiter for a private dispute, when each individual in the dispute should be taking care of himself or herself? If a man sexually harasses a woman at work, then—on this view—the woman should either “stand up for herself” or find a more favorable job situation elsewhere. For her to seek legal counsel and go to court for a third-party’s intervention is, in this narrative, an abdication of her responsibility as an individual to work things out on her own.
The flaw in this approach, of course, is that its presumption of equal power among disputants is at odds with the facts. A woman whose boss sexually harasses her is typically in a position of weakness relative to her boss, and she therefore may have few DIY (“do it yourself”) options for bettering her circumstances. Even when there are no obvious economic power disparities, moreover, interpersonal dynamics are rarely 100% equal, and when one party to a personal dispute is a bully and the other is intimidated by bullying, it can be very difficult for the parties, on their own, to reach an agreement that is remotely fair or just.
The “Fight your own battles” ethos essentially boils down to a “Might makes right” idea, in which whoever happens to be able to force his vision on others should be allowed to do so without outside interference. It is the all-purpose bully’s version of “Boys will be boys”: “Bullies will be bullies.”
The Criminal Law (Partial) Exception
Notwithstanding the characteristically American view of litigation that I described above—that it reflects a weakness in the plaintiff’s (and the interloping attorney’s) character—Americans are in general quite comfortable with criminal prosecution as a means of righting wrongs. We rarely tell the armed robbery victim to “suck it up” rather than “running to the police and prosecuting attorney to fight your battles.” The power disparity between a criminal perpetrator and his victim is both highly salient to people and presumptively unjust in their eyes. Americans thus not only hold the title for having the highest documented incarceration rate in the world, but we are generally quite welcoming of criminal prosecutions, and we regard prosecutors in positive terms, as standing apart from plaintiffs’ attorneys.
In noting this civil/criminal distinction, it may be instructive to observe that not all criminal prosecutions are on an equal footing on this score. To put it differently, some existing power disparities strike people as inappropriate for legal intervention. One example is acquaintance rape—that is, the rape of a victim by a perpetrator with whom the victim was previously acquainted. To be more precise, Americans are quite skeptical of the “rape” classification for “date rape,” the sexual assault by one person who is out on a date by the other person who is out on that same date.
If two people go out on a date and one of them (a woman, for example) says that the other one (say, a man) raped her, a common response is to suggest that this is a case of “he said/she said.” The implication is that the evidence is in insoluble equipoise: the jury must decide whether the defendant is lying or whether the victim is lying, and how can it possibly make that determination beyond any reasonable doubt? This implication, however, presumes what we ordinarily refuse to presume—that a person who claims to be a crime victim is no more credible, no more worthy of belief, than an accused criminal who claims to be innocent.
In other criminal contexts, the victim-witness would be bolstered by her status as “an eyewitness” who can provide direct—rather than mere circumstantial—evidence of the crime under review, and the denying criminal defendant would be regarded as having little credibility, given the desire to avoid incarceration. In using the derogatory “he said/she said” moniker, then, something else (besides a concern about a jury’s ability to evaluate conflicting sworn testimony) may be in play.
As in the case of anti-litigation sentiment more generally, what may be going unsaid here, in the date rape scenario, is the tendency to conclude that a person who goes out on a date with another person has essentially assumed the risk that things might not go that well, and that risk—on this reading—includes the possibility that the person’s date may decide, against her wishes, to have intercourse with her. This attitude parallels the old substantive law of marital rape—that husbands properly hold the power to force their wives to have sex with them on demand. This view ratifies the power imbalances between people on a date or partners in a marriage, and objects to the notion of a third party arbiter—a jury—coming in to protect the people on the receiving end of those power imbalances.
Clarity about Bullying
Though we tend to say that we believe bullying is unacceptable, Americans have an ambivalent relationship with the phenomenon. Our “rugged individualist” hero is one who takes care of himself and stays away from lawyers and other third-parties for whom private disputes are “none of their business.” When people purchase fast food on a daily basis, for example, we blame them for their own obesity and regard as a kind of pathetic shirking their decision to bring a lawsuit against a fast-food giant claiming that its food made them obese. We do so in spite of the fact that fast food giants are, well, “giants” in terms of their economic power, and despite the fact that the foods they sell have been engineered to induce cravings in consumers, cravings that biologically resemble the cravings of a drug addict for his next fix.
Similar attitudes long prevailed against the families of sick smokers who sued cigarette companies for manufacturing a product that, like fast food, is both addictive (deliberately so) and life-and-health-threatening. The rugged individualist either eats fast food and takes his obesity, diabetes, and cardiovascular disease in stride (along with his family members, who must finance his health care), or he resists the temptations around him and chooses a better way of eating.
Complex Bullying Dynamics
I say the above with some ambivalence, as a vegan. I and an increasing number of others like me choose to avoid McDonald’s and Burger King, and we generally eat a more healthful diet than the average American (or even the above-average omnivorous or vegetarian American) does. I and others encourage people to opt out of consuming animal products, and I consider it a privilege to let people know that they do have this choice, despite common myths about the need for animal-based protein, calcium, etc.
Nonetheless, I am conscious of the pressures that people face and the degree to which those pressures may originate with industry and its very close relationship with the U.S. Department of Agriculture. Even with the ready access we have to information about both human nutritional needs and the unnecessary cruelty involved in bringing animal flesh and hormonal secretions to people’s plates, it nonetheless took until seven years ago for me and my family to make the life-affirming choice to become vegan.
Conversely, even as I support litigation to hold sexual harassers and other bullies accountable for their misdeeds, I also applaud efforts of people like Sheryl Sandberg, author of Lean In, to teach victims of sexism how to stand up to bullies and how, in some cases, to avoid being bullied in the first place. I similarly support the efforts of doctors like T. Colin Campbell, Caldwell Esselstyn, Michael Greger, Neal Barnard, John McDougall, and others to educate the public on how to escape the hold of the Standard American Diet and healthfully eliminate the products of slaughterhouses from our food repertoire.
Recognizing the important role of litigation and of official intervention in bullying is thus entirely consistent with acknowledging a role for empowering potential victims in other ways, encouraging them to make different choices, and alerting them to the fact that there is sometimes a choice to be made, even if a bully has effectively obscured that fact from view.
Sometimes, to be sure, there are several layers of bullying. The individual members of a particular racial or religious group, for example, might suffer discrimination and oppression from the majority on account of their group membership. More powerful members of the group may, in turn, inflict their own bullying on less powerful members, perhaps by manifesting higher rates of child abuse. It is quite logical, in this situation, to seek redress for the group’s collective suffering at the hands of the majority (and, in the process, even to cite the higher incidence of child abuse as a symptom of that suffering), while simultaneously seeking to protect and guard battered children from their abusers.
This analogy helps bring us back to medical malpractice liability. Holding doctors accountable for the negligent harms that they inflict on their patients is right as a matter of justice, even apart from whether it “works” (as it apparently does) as a method of improving health outcomes. The patient injured by a bad medical decision regarding his or her treatment deserves to have someone stand up on his or her behalf and demand recompense from the provider who inflicted the harm.
At the same time, however, it is only fair to acknowledge that doctors may themselves be victims of a health care system that penalizes them for spending more than a minimal amount of time with each patient, and that rewards them for ordering of unnecessary tests and procedures. Doctors also learn their profession in schools at which true prevention (as in nutritional excellence, rather than preventive mastectomies) plays virtually no role, so that a doctor is more likely to know about Lipitor, Viagra, and Triple Bypass than he is to be aware of the possibility of reversing cardiovascular disease (and associated vascular disorders) through the food that one eats.
Similarly, the New York Times article I referenced earlier in this column highlights the role of increasing transparency—not malpractice liability alone—in achieving favorable medical outcomes. Third-party intervention can be an important part of reducing the incidence of bullying, without its having to bear the whole burden alone.
Reversing an Anti-Lawyer Prejudice
I am hardly naïve enough to imagine that this column will put an end to anti-lawyer prejudice. Nonetheless, I believe it is useful to evaluate common, accepted prejudices every now and then to determine why they persist. In the case of the public sentiment against litigation, it is clear from the evidence that it does not arise from a clear-eyed assessment of how effective lawsuits are at preventing tortious behavior by doctors and others. Moreover, this prejudice resonates with reactions in other contexts in which a worship of “rugged individualism” can blind us to the inequities of allowing private parties to just “sort things out” and fend for themselves, without outside interference. Sometimes a lawsuit can accomplish what a conversation and efforts at negotiation simply cannot—a just outcome that mitigates or reverses the impact of “private” bullying.