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Tort Reform - The Real Questions

Recently the question was posed once again, "What are we to do about this fear of litigation situation?" You know the one. The question that keeps popping up in the context of doctors who cease practicing citing the high cost of malpractice insurance premiums, or when schools eliminate recess for fear that injured children might sue.

Unfortunately, in this time of "tort reform" debate, almost everyone is asking the wrong questions. So I will make some effort to redirect the discussion (at least the way I think it ought to be directed). The real question is: If someone else gets hurt, do I care? This question is not very far removed from another which may seem quite familiar: "Am I my brother's keeper?" The follow-up question is: Who falls within the category of "brother"? If someone in my immediate family gets hurt, I will care. Now how about someone in my town? How about someone across the country? In Africa? (Interesting how caring is a function of both the size of the hurt and its remoteness. The tragedy of 9/11 was deeply felt across the globe. A one-off murder in Chicago would not even be reported in Phoenix.)

Generally speaking, our society has chosen not to care. If a family breadwinner gets hurt, unless quite wealthy that family will likely be reduced to poverty or close. There will be difficulty in paying medical bills. There will be difficulty in paying for children to attend college, etc. etc. This fits in with our country's obsessive compulsive belief in competition -- in this context displayed as traditional Darwinian law of the jungle.

A mere two hundred years ago, such matters had advanced in civility to where they would be decided by duel. If you injured my relative or a family member's reputation, my second and I would see you and your second the next morning, and let justice be determined by guns or swords. Many believed that the results were divinely determined.

Subsequently, we became even more civilized and replaced this dueling with litigation. Great emphasis was still placed on fault of the wrongdoer and the skill of the combatants; however, some shift of emphasis was seen with the basing of the reward on the extent of the injury.

Recent "tort reform" efforts seek to reverse this shift by limiting damages and access to the courts (while those same governments are enacting budget reductions in public health, public education, and all other kinds of "welfare") - pushing our system back towards Darwinism. Now it may be that a more purely Darwinian society brings benefits to the nation in terms of competitive advantage internationally, and there are other arguments for each of the various proposals that push in towards a pure survival of the fittest society. But before we put limits on litigation damages, we ought to really look at the bigger questions, first. So readers have at it. Are we our brothers' and sisters' keepers? And just who are they, and how much are you willing to pay? Happy arguing,

© 2004 Daniel A. Krohn
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