Saturday, 20 July 2013

Our litigious, unfair, world

At the same time that the state acts in increasingly lawless and arbitrary ways in its treatment of us, its citizens, we seem addicted to resolving everything through lawyers and courts. As the nightmarish Trayvon Martin case sadly illustrates, legality is not the same as justice, and as we pile ever more sensitivity to laws (and especially lawsuits) into our daily existence, the idea of fairness that should backstop all this lawyering and judging threatens to disappear.

There is a billboard near my domicile that I see regularly on the elevated No. 1 subway line that reads: “INJURED? YOU MAY BE ELIGIBLE FOR A LARGE CASH REWARD”. It is accompanied by the smiling faces of two lawyers who from their happy visages must be enjoying a booming business.

The only thing left out of that message is the word, “GREAT!” There is something amiss when illness or harm is a thing to be celebrated, but tort lawyers now drill the idea into all of us that any misfortune can and should be monetized. This is perverse. Not only does this instant ambulance chasing add no value to our collective well-being, it blocks any possibility of learning from the normal course of human error.

I saw an example of this recently involving the case of a patient who sought PEP at a local hospital emergency room. PEP stands for ‘post-exposure prophylaxsis’, i.e., the HIV treatment that when taken immediately after a dangerous event can block the establishment of HIV infection. It has been used for years in hospital settings to treat needlestick injuries involving infected blood. When administered promptly, PEP can mean the difference between a life-long medical condition and a harmless scare.

It can also be used after an episode of risky sex, and there is a protocol in place to offer it in emergency rooms throughout the city. The kid who sought it, an out-of-town visitor, had reason to fear infection and asked a hospital ER for it. But he unfortunately ran into at least two nurses who had never heard of it. External intervention turned the situation around, and the patient finally got the treatment after insisting, but a less assertive or connected visitor would not have. A messy brouhaha ensued, and ACT UP, which has resuscitated itself as an advocacy and monitoring organization, staged a protest action last week.

In a sane world involving a mature organization, this sort of miscue would lead to proper soul-searching, review of procedures and a search for performance improvement. Instead, the hospital involved curled itself up like an institutional porcupine, refused to admit any of the facts, emitted PR spin worthy of a politician in a whorehouse, in at least one case blatantly lied, and exploited the patient’s gratitude for the service he eventually did obtain with tendentious quotes from his thank-you email.

None of which made sense to me until I thought about the hospital’s immediate fear of a lawsuit. Nothing would prevent the patient, were he to find himself HIV-positive anyway, from bringing an action accusing the hospital of responsibility due to the PEP delay. Instead of a search for the truth, the hospital immediately retreated to the lawyerly position based on the overriding principle of ADMIT NOTHING.

Civil suits should be extreme measures that we resort to when harm has occurred through negligence and with two goals in mind: to prevent further misconduct and to compensate the injured party. Our current system does neither of these things well and in the process undermines the opportunity to learn from honest human mistakes. If we were protected by a more benign safety net and could rely on the government to care for us in time of medical or other needs, there would be less urgent chasing after vulnerable institutions by passles of guys in suits. And there might be more creative energy devoted to making things work better instead of pretending that nothing ever goes wrong.

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