Medico-legal #1

Why Are Medical Malpractice Lawsuits More Common in US?

Differences of Philosophy and Basic Thinking

It is true that the difference in "culture" between US and Japan is an explanation, but an overly simplified one. Lawsuits are something that the Japanese dislike, in general, and it is thought that it is something that respectable persons don't engage in. The line between criminal and civil proceedings are somewhat blurred.

The more plausible explanation is the difference in placing the "fault" for an unfortunate or bad situation. For example, when a person develops an incurable disease, a Japanese person would ask, "what did I do wrong, was it my workaholic life style, was it my smoking, was it my genes?" An American person would ask, "who did this wrong to me, was it my boss who made me work so hard, was it second-hand smoke from my co-worker, was it my parents who gave me the wrong genes?" The Eastern rationalization is internalization, the Western rationalization is the opposite, externalization.

The Difference in the Legal Systems: Tort

The basis for civil litigation is the tort principle. Its origin is in medieval English law, when it was ruled by a judging body that one party caused harm, or a "wrong" to a second party, this act must be compensated so that the second party could be made "whole". The principle is that every wrong could be corrected. If you think about it, it is a rather simplistic system to assume that all wrongs could be corrected.

In order to carry this principle to the next step, it became necessary to assign a common currency to value every wrong. Back in medieval England, this could have been various objects of value. In modern society, this common currency is money. Every damaging act is assigned a dollar value. Again, if you think about it, it is a rather simplistic system to assume that every wrong has a dollar value.

Of course, if the first party damages property of the second party, it needs to be and can be replaced easily. For example, if I damage your car, I must repair it, pay for the cost of repairing it, or replace it with a new one of equal value. What if I damage your finger? How much value can be placed on a finger. What if I damage your arm? Your eyesight, one eye or both eyes? What if I damage your reputation, how much is that worth? What if I damage your health? What if I damage your spinal nerve, at what level? I think you get the picture. It is not easy, if not impossible, to assign a dollar value to some intangible things. What if someone damages another's sense of smell? Does it matter if he is a world-famous wine taster, who makes a very good living distinguishing the subtle aromas of different expensive wines for royalty all over the world? Or simply that he can not enjoy life as much without experiencing different smells.

Of course there are things that money can not buy. The tort system does not recognize this possibility. True love, world peace, belief in God, the mystery of the universe, each have a dollar value assigned to them in the extreme example.

The Jury System

In American jurisprudence, every defendant is entitled to be judged by a panel of (usually) twelve jurors, a jury of his "peers." When a doctor is sued, this peer system doesn't mean that there would be twelve doctors who sit in judgment. The jury pool is selected from a list of registered voters, who basically volunteer their time to serve on the jury. Unfortunately, the jury system excuses those with jobs that are critical to the function of the community, which includes many doctors and other professionals. Those who are selected tend to be those with jobs that are not "critical" (i.e. non-essential, low to mid level employees of large companies and government workers), retirees, the underemployed.

Frequently, the furthest thing from these jurors' minds is the intricacy of certain operative procedures or complex reasoning of differential diagnoses. Each party must educate the jurors prior to stating their case. If the explanation gets too complicated, the jurors tend to be overwhelmed and adjudicate based on emotion rather than facts. They have little or no opportunity to ask questions during the case. The tendency is for the jurors to decide in favor of the unfortunate (plaintiff) at the expense of the professional (defendant), who is covered by his malpractice insurance company, anyway.