Dr. Joe Pellicer reports witnessing the malpractice trial of a physician friend. Without giving details, he asserts that the adverse incident in question was unavoidable. He reports that his friend was able to convince the jury of this, despite the plaintiffs’ lawyers insinuations, and that “[a]fter just minutes, the verdict came back: The jury absolved my friend of any wrongdoing.”

This would seem to be a showcase legal proceeding, then: a grieving family, whose relative died after treatment and discharge from the local ER, feared that something was amiss. (And why not? Patients are supposed to get better after treatment; it’s not surprising when a patient dies in the ER, but it’s surprising when a patient is discharged as healthy and then dies at home.) They brought action in the only authoritative forum our society provides for assessing facts in situations of that kind, and assessing fault and assigning damages. The jury heard arguments from both sides, weighed complicated technical information that the defendant himself presented to them as part of his defense, and arrived at a conclusion - one that Pellicer declares was correct on the facts. What’s the problem?

Naturally, there is an element of uncertainty in any trial - nobody believes that trials are perfect fact-finding and blame-assessing machines. And of course it’s not pleasant to be facing that risk, especially with the financial and professional stakes as high as they are in medical malpractice cases. But Pellicer goes beyond sympathizing with his friend for “the two years he spent agonizing about whether he would be bankrupted or whether he would be able to continue working”. Instead, he indulges in a bit of stereotypical court-bashing, in this case even invoking the simple wisdom of the ancient African cultures in contrast to the legal insanity of litigious America:

I was trying to explain our medical malpractice system to a friend who was visiting from Africa. He works in the refugee camps of northern Uganda where hundreds of thousands of victims seek shelter from a senseless persecution and massacre that con-tinues to this day. I tried to explain that if an American doctor was convicted of making a mistake, not only would he have to pay for any medical costs and lost wages but that he likely would have to pay for the pain and suffering incurred by the patient and family.

Coming from an environment where pain and suffering are the norm, he could not comprehend that such a system should exist. “But that is just bad luck,” he said, “Why should you have to pay someone for their bad luck?”

For all its troubles, there are days when I feel like maybe I should move back to Africa and away from this system we call justice.

It’s not clear what Pellicer is complaining about in “this system we call justice”. (Is it not justice? By his own description, the jury did exactly the right thing in his friend’s malpractice case. But what he would have preferred is not that a jury correctly determine that his friend was innocent of the patient’s family’s complaint, but rather that the jury never have been allowed to consider that complaint, after the patient died immediately following treatment. This, apparently, is justice on Pellicer’s terms.) The issue of damages for “pain and suffering” is completely unrelated to the issue of damages for cases of “bad luck”, but Pellicer overlooks this. In fact, he allows his African friend to conflate the two without comment. (Pellicer describes “intangible loss” damages, and his friend exclaims “but that is just bad luck” - a perception he holds, Pellicer tells us, because he “com[es] from an environment where pain and suffering are the norm”. But surely even saintly Africans possessed of suspiciously childlike wisdom are aware that not all pain and suffering are caused by bad luck. They have plenty of evidence of the pain and suffering caused by malfeasance, and we Westerners have plenty of evidence that they are not all as stoic about them as Pellicer’s friend.) This should hardly need explaining, especially to an American doctor who sets himself up to pontificate on the medical-malpractice system, but perhaps some clarification is in order.

“Pain and suffering” damages for intangible harms are a standard feature of tort claims. They account for the non-quantifiable injuries suffered from bad acts - the harm that remains when medical bills, loss of property, lost wages from time off work, and other such tangible costs are paid for. It is a standard meme of the “tort reform” right wing that intangible-harms damages are a kind of windfall for victims - a payoff they receive for successfully playing the “lawsuit lottery”, representing some sort of freebie beyond the “real” damages incurred as tangible losses. Pellicer implies this when he says plaintiffs are entitled “not only” to reimbursement of medical costs and lost wages, but also to intangible damages as well. Whence this “not only” unless only tangible damages are “real” damages? But it takes almost no though to see that that is not the case.

If only tangible (i.e., quantifiable, and connected to distinct physical objects or systems) damages are “real”, then one has been reimbursed for all real damages when one has been paid back for any tangible damages incurred in a tortious act. One would be “even” once all the overt damages had been paid up. But we know immediately upon reflection that this isn’t so. If you damage someone’s car and you pay to have it fully repaired, then you have made them whole - there is nothing more to be said, and no further reason for the owner to be upset. But if one suffers a violent assault or a painful physical injury, one is not made completely whole by mere reimbursement. If someone assaults you, or simply negligently harms you in some culpable way, you do not feel “made whole” if they simply pay back the money it costs to undo the physical damage. If a loved one dies through another person’s bad act, it is not enough just to be given the wages they would have received - that is not an adequate reimbursement for the loss of a loved one. In some sense, of course, intangible losses can never be made up for, since there is nothing that can be given (no tangible thing - including money) that replaces the intangible goods lost. But we do have means of compensating such losses, even if the compensation is not perfect - we pay money damages for them. If a physical injury produces tangible losses “and then some” (i.e., physical damage plus intangible pain and suffering), the appropriate compensation for it must be reimbursement of the monetary loss “and then some” - actual damages plus damages for “pain and suffering”. If a doctor killed Pellicer’s wife or husband through negligence and then merely calculated her expected discounted lifetime wages and handed Pellicer that sum in recompense, I suspect Pellicer would not regard himself as adequately compensated. He ought to recognize that the same principle applies to his friends’ patients and their families.

That answers Pellicer’s uncomprehending complaint about pain and suffering. But as we see above, he confuses this with damages for “bad luck” - the more common source of complaint by “tort reformers”. (There is one further common complaint: that about “punitive damages” - but that is an issue not touched on by Pellicer.)

Of course, no jury literally awards damages for bad luck - there must be a finding of fact that the respondent in the suit is responsible for the damage caused. Pellicer was satisfied with the jury’s finding that his friend was not guilty in his case; presumably he has no objection to doctors who are guilty of malpractice being found guilty also. What then is his concern? Though he does not bother to spell it out (he seems to object to all jury verdicts), it is presumably that some verdicts of guilty are not based on a reasonable understanding of the case.

First, of course, anybody would object to that, even if generally disposed toward plaintiffs. But even granting that there are some false verdicts, Pellicer seems offended that there are trials, not that some trials lead to bad outcomes. But the whole point of malpractice trials is to make precisely the necessary distinctions between bad acts and bad luck. Faced with that necessity - and the lingering possibility of losing the trial to a confused jury - Pellicer seemingly opts for no recourse at all for patients - which is precisely the endpoint, and no doubt the goal, of the “tort reform” movement. Bizarrely, Pellicer has used a case in which the system itself proved the doctor right and protected his interests - coupled with a deeply confused discussion of types of damages - to propose eliminating not only the system of reimbursement for all damages suffered (tangible and intangible), but the system of adjudications entirely. By equating all bad outcomes with “bad luck”, Pellicer implies there simply are no bad acts in healthcare - and thus no malpractice suits can ever be justified, or even necessary. This is, at best, nearsighted, and likely duplicitous. It is bad form from a supposed spokesperson for sound medical practice.