Dr. Sandra R. Scott of Brooklyn, N.Y., has never been sued for malpractice, but that doesn’t keep her from worrying. As an emergency-room doctor, she often hears her patients threaten lawsuits–even while she’s treating them. “They’ll come in, having bumped their heads on the kitchen cabinet, and meanwhile I’ll be dealing with two car crashes,” she says. “And if they don’t have the test they think they should have in a timely fashion, they’ll get very angry. All of a sudden, it’s ‘You’re not treating me, this hospital is horrible, I’m going to sue you’.”
Ryan Warner is a volunteer who runs an annual softball tournament in Page, Ariz., that usually raises about $5,000 to support local school sports programs. But not this year. A man who broke his leg at a recent tournament sliding into third base filed a $100,000 lawsuit against the city, and Warner fears he may be named as a defendant. “It’s very upsetting when you’re doing something for the community, not making any money for yourself, to be sued over something over which you had no control,” he says. So Warner canceled the tournament.
Playgrounds all over the country have been stripped of monkey bars, jungle gyms, high slides and swings, seesaws and other old-fashioned equipment once popularized by President John F. Kennedy’s physical-fitness campaign. The reason: thousands of lawsuits by people who hurt themselves at playgrounds. But some experts say that new, supposedly safer equipment is actually more dangerous because risk-loving kids will test themselves by, for instance, climbing across the top of a swing set. Other kids sit at home and get fat–and their parents sue McDonald’s.
Americans will sue each other at the slightest provocation. These are the sorts of stories that fill schoolteachers and doctors and Little League coaches with dread that the slightest mistake–or offense to an angry or addled parent or patient–will drag them into litigation hell, months or years of mounting legal fees and acrimony and uncertainty, with the remote but scary risk of losing everything. And while lawsuits can be a force for good, they are also changing and complicating the lives of millions of American professionals in ways that confound common sense and cast a shadow over a system that can, at its best, offer people relief and redress from legitimate grievances (John Edwards’s essay, page 53).
The onslaught of litigation is nothing new–nor all bad. Starting in the 1960s, crusading judges and well-meaning social reformers began opening the way for the powerless and the dispossessed to assert their rights by going to court. Large corporations and authority figures were held responsible for their carelessness or callousness. Manufacturers were forced to pay more attention to the safety of their workers and consumers, and public officials were held more accountable to the people they served.
But Americans don’t just sue big corporations or bad people. They sue doctors over misfortunes that no doctor could prevent. They sue their school officials for disciplining their children for cheating. They sue their local governments when they slip and fall on the sidewalk, get hit by drunken drivers, get struck by lightning on city golf courses–and even when they get attacked by a goose in a park (that one brought the injured plaintiff $10,000). They sue their ministers for failing to prevent suicides. They sue their Little League coaches for not putting their children on the all-star team. They sue their wardens when they get hurt playing basketball in prison. They sue when their injuries are severe but self-inflicted, when their hurts are trivial and when they have not suffered at all.
Many of these cases do not belong in court. But clients and lawyers sue anyway, because they hope they will get lucky and win a jackpot from a system that allows sympathetic juries to award plaintiffs not just real damages–say, the cost of doctor’s fees or wages lost–but millions more for impossible-to-measure “pain and suffering” and highly arbitrary “punitive damages.” (Under standard “contingency fee” arrangements, plaintiffs’ lawyers get a third to a half of the take.) This year the U.S. Supreme Court tried to limit punitive damages, and judges often reduce the most outrageous jury verdicts. And the “litigation explosion” of the past 30 years may be leveling off (though one study shows a sharp recent uptick). Even so, the mere threat of a lawsuit is intimidating. Many Americans sue because they have come to believe that they have the “right” to impose the costs and burdens of defending a lawsuit on anyone who angers them, regardless of fault or blame.
The cost to society cannot be measured just in money, though the bill is enormous, an estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers. Our society has been changed in a subtler, sadder way. We have been hardened and made more fearful. Friends and neighbors are more wary now. Almost anyone has to ask: if I say or do something that might be taken wrong, will I wind up in court? Mentors and teachers are restrained from offering either comfort or discipline–might that touch be misconstrued, those stern words somehow made “actionable”?
Perversely, our insistence on enforcing our “rights” has made us less free–less free to use our own judgment to make common sense or humane choices about the way we live and treat others. We are paralyzed by “legal fear,” says Philip K. Howard, a legal reformer who published a 1994 best seller on the subject, “The Death of Common Sense,” and more recently, “The Collapse of the Common Good” (2001). But are we truly stuck? In two of the most contentious arenas–education and health care–Howard has devised proposals to save Americans from a legal system gone mad. He says the key is to separate trivial or frivolous cases that don’t belong in court from those that are legitimate, a responsibility that he says judges have abdicated.
A corporate lawyer and civic activist with a philosophical bent, Howard began wondering more than a decade ago why it was so hard to get anything done in government. As he probed into rules and regulations, he began to see that the biggest impediment was the fear of lawsuits. The son of a Southern minister, educated at Yale and the University of Virginia Law School, Howard has become a courtly evangelist for the notion that only radical reform can stop what he calls the “legal free-for-all.”
Howard is, to say the least, a controversial figure to trial lawyers and some public-advocacy groups. “You can’t take away people’s rights and call it reform,” says consumer advocate Ralph Nader, who calls the civil-jury system “a gem” and describes trial lawyers as “all that is left to require wrongdoers to be held accountable. Philip Howard is a corporate lawyer who tilts his data-starved abstractions in the direction of defendants’ prerogatives at the expense of plaintiffs’ rights. He is a partner in the giant law firm of Covington & Burling, which has historically represented some of the most damaging corporate behavior, from tobacco to pharmaceuticals to chemical companies.” (Covington & Burling represents NEWSWEEK as well. Howard says he does no work of the type Nader complains about.)
Howard likens the medical-justice system to “cancer in its latest stage.” Most Americans do not go to work every day, at least not yet, wondering if they are going to get sued. But many doctors do, especially those in high-risk specialties like obstetrics and surgery. “Every patient is a potential litigant, every family member is a potential plaintiff,” says Dr. Thomas Rawlinson, a Memphis, Tenn., internist. Fear of a lawsuit would probably deter him from stopping to help a stranger injured in an accident, he says–and Rawlinson hasn’t even been sued yet.
While doctors win most malpractice cases that go to trial, their insurers lose often enough to want to settle many claims. (In California recently, a couple won a $70 million judgment against Stanford University Hospital and two other health-care centers for failing to prevent their child from becoming disabled by a rare birth condition.) Sometimes, the malpractice is egregious. But then there are cases that, in an earlier era, would have been dismissed as the patient’s own fault. Take the pending lawsuit by a 29-year-old drug addict who sued a Pennsylvania mental hospital for failing to prevent her from overdosing on drugs and cutting herself. The hospital should have warned visitors against bringing drugs into the hospital, the lawsuit claimed. The staff should have noticed that a visitor had sneaked some heroin and cocaine to her. The hospital’s job, her lawyers claim, was to protect her from herself.
No wonder, according to one estimate, doctors waste $50 billion to $100 billion on “defensive medicine” to prove that they left no stone unturned, no test untried, no medication unprescribed, no specialist unconsulted. That kind of money could buy health insurance for the 40 million Americans who have none.
Medical-malpractice claims don’t even do what they’re supposed to do–compensate victims and deter future mistakes. Various studies have found that the vast majority of medical errors go undetected by patients and that nine out of 10 are never compensated. (And when patients do sue, their malpractice allegations are unfounded in as many as 80 percent of the cases, other studies suggest; insurance companies pay to settle the vast majority of claims anyway, rather than risk a big hit.) Countless avoidable deaths are actually caused by the system. Fear of lawsuits contribute to a culture of secrecy. Doctors avoid discussing problems and errors, lest such candor be used against them in court. The most dangerously incompetent doctors often remain in place for many years, in part because employers fear wrongful-dismissal lawsuits by fired doctors even more than malpractice suits by their victims.
“Legal fear” is just as intense in the educational system. Many Americans sense that schools have become chaotic and undisciplined over time and the quality of teachers has declined. Many teachers say that the joy has gone out of their jobs. What’s not generally known is the role of courts and Congress in creating these problems by depriving teachers and principals of the freedom to use their own common sense and best judgment. Thanks to judicial rulings and laws over the past four decades, parents can sue if their kids are suspended for even a single day–for any reason–without adequate “due process.” Well-intentioned federal disability laws have made it so difficult to suspend any emotionally disturbed student for more than 10 days–even if he is chronically violent and disruptive–that many schools don’t even try.
In Wisconsin, a chronic troublemaker was finally expelled from high school for his role in a $40,000 vandalism spree. The student’s mother hired a psychologist who diagnosed the boy with attention-deficit disorder and depressive moods. The courts ordered the school to let him return and graduate–follow the contorted logic here–because the school had failed to prove that these previously unknown disabilities had played no part in the vandalism.
School boards now fear that parents will sue for anything. In Kentucky, a mother sued her daughter’s school after the girl had performed oral sex on a boy during a schoolbus ride returning from a marching-band contest. The woman blamed poor adult supervision, saying her daughter had been forced. If the case goes badly for the school system, such trips could be jeopardized.
Even if a school wins in court, these cases cast a pall. Alan Bersin, the superintendent of San Diego City Schools, calls the risk of being sued “the anaconda in the chandelier”–it hangs constantly overhead, threatening to strike at any time. Unruly students sense the teachers’ fear and their own empowerment. “A kid will be acting out in class, and you touch his shoulder, and he’ll immediately come back with ‘Don’t touch me or I’ll sue,’ or, ‘You don’t have any witnesses’,” says Rob Wiel, who taught high-school math and coached football and baseball in the Denver suburbs for 20 years before retiring recently. “They have all these lines.”
If, as Howard says, the educational system is a “viper’s nest” of entitlements and legal fear, the playgrounds and playing fields are an absolute war zone. Parents, on behalf of their children, increasingly sue not only for physical injuries, but for “hurt feelings” when they don’t make a team, says John Sadler of Columbia, S.C., who insures amateur sports leagues. Coaches and referees are caught in a kind of no man’s land. If they allow a disabled kid to play, they can get sued if he hurts himself. But if they don’t let him play, they can be sued for discriminating against the disabled. If a ref steps into a fight, he can be sued if one of the players he is holding back takes a punch. If the ref doesn’t intervene, he can be sued for allowing the fight to go on. Even apparently innocent soccer moms are at risk. In Jupiter, Fla., one mother volunteered to pick up a pizza for the team. She drove over the foot of a child who, left unattended, had run into the road. The police did not even give the woman a ticket. But the parents of the child sued the mother and the soccer league and tried to sue the city, the refs and various sponsors.
Of course, any arena can be fertile ground for lawsuits. Big-city and small-town mayors alike know that their city governments are seen as a deep pocket to pay for almost any injury. New York shells out an eye-popping $550 million a year in court awards and settlements, thanks to sympathetic juries who think nothing of making government pay: $5 million for a girl’s pain and suffering from a leg broken when the car she was riding in swerved to avoid an ambulance and hit a tree; $6.3 million to a pedestrian hit by a drunken driver who disregarded signs and mounted a curb, which the jury said was too low; $7 million to a woman who lost her leg when she was hit by a taxi that may, or may not, have skidded on the ice.
The sense of legal entitlement has spread coast to coast. In Penobscot County, Maine, authorities hunted for a convicted sex offender wanted on felony charges for three days after he disappeared into the snowy woods. When the suspect was finally tracked down, he had frostbite and lost two toes. Incredibly, police say, the man threatened to sue the police for not catching him sooner. He couldn’t find a lawyer, but his sheer chutzpah did not surprise Penobscot County Sheriff Glenn Ross. “We’re always facing lawsuits,” says Ross. “It’s on our minds all the time.”
Is there no end to this? President George W. Bush has signaled that he will try to make trial lawyers (among the biggest contributors to the Democrats) an issue in the 2004 presidential campaign. Legal reformers in some states have passed dozens of laws since the 1970s designed to stem the wave of personal-injury suits. In California, for instance, so-called tort reform (after the legal term for injury, “tort”) has put a $250,000 cap on the damages that patients can win for pain and suffering in medical-malpractice cases. Other states have limited the contingency fees that lawyers can take. But many of these laws have been circumvented by the courts, and most have had little impact. The tort reformers are up against a politically powerful foe, the trial lawyers, who have positioned themselves as the guardian of the little man against the corporations. The tort reformers play into their hands by focusing on saving corporations money and doing nothing for deserving plaintiffs.
Conventional tort reform does not really go at the deeper problem. It does not bring about fundamental change in a system that affects the lives of millions by disrupting the services they depend on. Howard has suggested a more radical approach–removing disputes in education and health care from the regular court system altogether.
In the public schools, rather than running to court, aggrieved parents would have to take their disputes to a parent-teacher committee. Instead of having “a trial every time some parent is disappointed by a disciplinary decision,” says Howard, educators should be free to use their common sense to protect “the rights of the 29 other students whose learning is being disrupted.” Principals would be free to run schools according to their best judgment. They would have to answer to parent-teacher committees when disputes arose, but they wouldn’t have to worry about getting sued or having to jump through procedural hoops to send a student home for a day, to fire an ineffective teacher or to change the curriculum. “There are very few big-dollar lawsuits in schools,” says Howard. “The process is the punishment. What really troubles people is being dragged through 12 months of hearings and cross-examined as if they were criminals.”
Similarly, in the medical realm, Howard would remove most malpractice and other health-related claims to a special court of medical experts. Rather than allow juries ignorant of medical procedure to be swayed by sympathy, judges who are experts would follow established medical standards. Doctors would not have to guess at what was expected of them. A health-care court would not only shield good doctors from bad lawsuits, Howard contends, it would also give the vast majority of malpractice victims a much better chance of winning compensation for their lost wages and medical expenses, plus amounts for pain and suffering to be set by a schedule depending on the injury. Patients would be compensated within months, instead of after years of uncertainty and even impoverishment. For malpractice victims, the only loss is the remote chance of winning huge jury jackpots out of proportion to their injuries. There would be less malpractice–fewer mistakes–because doctors would be less reluctant to speak up about problems and admit error. And health insurance would be cheaper because not as many billions of dollars would be wasted on defensive medicine, legal fees and malpractice payouts.
Bringing about such fundamental changes would require political battles in Congress and the state legislatures. They are open to legitimate debate and negotiation, but they do seem to head in the right direction. The trial lawyers maintain that fictional or inflated horror stories have frightened the public, and they can point to dramatic examples where the jury system worked (such as the case of Steven Sharp, a high-school student whose arms were mangled by farm machinery that suddenly started up. After a long legal fight, he recovered $9 million). At this stage, Common Good, the legal-reform group headed by Howard (and funded in part by corporations), is only trying to raise public consciousness, not to lobby. Legal reform is a painfully slow process; over the past 30 years, attempts to require mediation before going to court have done little to stem the litigation wave. But the time may come when ordinary Americans recognize that for every sweepstakes winner in the legal lottery, there are millions of others who have to live with the consequences–higher taxes and insurance rates, educational and medical systems seriously warped by lawsuits, fear and uncertainty about getting sued themselves. One day, they may realize that their right to sue has become a trial for us all.
