Several years ago I was watching a basketball game when I noticed a headache coming on. The headache got worse and worse and I decided to throw some painkillers at it, but after about 12 hours I could barely stand. So I made my annual trip to the emergency room and after some tests was told, “congratulations, you’ve got meningitis.” Well, maybe not “congratulations.” The next several months would be a typhoon of maladies, all stemming from my meningitis (itself a product of my Multiple Sclerosis treatments). I will leave out all the gory details and skip ahead to my visit to the infectious disease department several months later to address yet another health complication indirectly caused by my meningitis.
The doctor prescribed me ciprofloxacin, aka cipro. I went to the pharmacy, picked up the medicine, and took my first pill. That night I took another, and then another the following morning (as directed). And then, as I was walking to the kitchen, my left achilles tendon tore. And before I knew it my OTHER achilles tore as well. I later discovered through my own research that there is an FDA "black box warning" against mixing floroquinolone antibiotics like cipro and the steroids I had also been prescribed, because it can cause acute tendonopathy. Basically the cipro attacked my tendons and the steroids prevented my body from fixing it. I spent the next several months in a wheelchair, which was an incredibly good experience because it helped me empathize with my fellow man. But it was not so great otherwise.
More than a few people suggested that I sue the doctor or hospital for prescribing me this antibiotic given the black box warning-level interaction with another drug they had prescribed me. It’s pretty clear to me that there was some kind of negligence and I suffered a lot, in a way that has greatly impacted my life. But actually sending a demand letter never crossed my mind.
If you ask a law student, professor, or lawyer “what is the purpose of torts?,” there’s a really good chance they will say “to make a person injured by another whole.” But it’s got to be more than that. I was very injured, and I know exactly why. My doctor had a duty, he seems to have breached it, and that breach caused severe harm. Open and shut, right? So if this were just about making me whole, I should have just sent that letter and made it happen.
But it turns out that torts does so much more than make the injured whole. This article is the first in a series that will discuss the purpose and reality of tort law on a theoretical level. Today we will talk about torts’ most famous purpose, its role in remediating wrongs and making the injured whole. Subsequent articles in our Theories of Torts series will focus on the social utility, norm setting, and civil recourse functions of tort law. Our series will end with a look at New Zealand, whose exceptionally different compensation system will help us understand both the strengths and weaknesses of the American torts system.
As I said, today we’ll start with a look at how the torts system is supposed to make the injured whole. The concept is pretty straightforward: if an incident causes a loss to an innocent victim, that victim should not be forced to bear the cost of the loss. Instead, the loss should be recouped from the perpetrator. If a drunk driver swerves off the street and careens into your living room, the drunk driver should have to pay to replace your ruined sofa. Despite the power of the alternative theories of torts that we will talk about later in this series, this remediative theory of torts is the most powerful and is the basis of a huge portion of tort claims.
There are many, many flaws with this theory of torts, but we will only focus on two here. The first is that so many losses in life are not easily compensable. What would have been a fair payout to make up for my time in the wheelchair? Sure, the wheelchair itself was quite expensive. But my loss was far greater than the cost of the wheelchair, and it’s really hard for me to give you a number. My case would have been relatively easy, but there are many cases that ask something much more difficult, such as “how much is a life worth?” And once you start down that path, the law can start to look very ugly. In America, courts regularly have to determine the worth of a life or even the worth of a child’s life. They will consider things like life expectancy and earning potential in order to assign a monetary value to a life, and then subtract things like living expenses from that value. It is an icy-cold, chilling calculus, and exactly the kind of thing that makes laymen uncomfortable with the legal profession.
“An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyme[nt] of life rests on ‘the legal fiction that money damages can compensate for a victim's injury’...We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace.”
The fact that so many tort claims involve noneconomic incidents does serious damage to the argument that tort is about making the injured whole. Another problem was the basis of why I chose not to file a suit against my doctor and hospital when I was injured: lawsuits are difficult, creating perhaps artificially hostile conditions between otherwise agreeable people. As a former litigator, I know very well the social cost of participating in a lawsuit, both as a plaintiff and as defense counsel. In my case, I was coming off of a horrible year that was filled with many bleak days. Initiating a lawsuit was the last thing I wanted to do. And while to me it seemed clear that my injury could and should have been prevented by my doctor, I didn’t personally blame him. He was trying the best he could and made a mistake. Even if I had the emotional wherewithal, I did not feel comfortable going to war with my doctor.
So while the notion that tort law is about making the injured whole is probably the most accurate single view of this huge corner of our civil justice system, it can’t explain away everything that does or does not happen following an injury. Money damages are often completely inadequate to repair a wrong, and the process has transaction costs that often dissuade victims from attempting to remediate their loss.