The tort system evolved to ensure that those injured by the recklessness, maliciousness or negligence of others can enlist the courts and juries to help them be made whole. It presumes, but, sadly, does not require, a measure of fairness, proportion, personal responsibility, forbearance, prudence, empathy, and common sense, as well as a lack of greed.
Two recent lawsuits, involving a golfer and a diner, illustrate how an otherwise good system can be used unethically.
First, the Diner:
Name: Arturo Carvajal, a Miami resident
Occupation: Doctor.
The Incident: In May 2009, he ate dinner at a Houston’s restaurant in Miami Beach, and ordered the grilled artichoke special. He had never eaten an artichoke before, or, it appears, seen or heard of one. Thus he ate all of it—not just the delicate heart, but the many layers of tough, barbed, incredibly indigestible outer leaves. Not surprisingly, he became ill, and had to have surgery to rescue his small intestine, which became clogged with artichoke leaves.
The Lawsuit: Alleging negligence, the doctor argues that the server failed to explain the proper method of consuming an artichoke, and that “the outside portion of the leaf should not be eaten; rather, only the inside portion of the leaf was safely digestible.” Carvajal is seeking damages for “disability, disfigurement, mental anguish,” and “loss of capacity for the enjoyment of life.”
Ethical Breach: Oh, where to begin? This is the kind of situation in which a normal, mature adult slaps his forehead and says, “What an idiot I am!” Why did he keep eating leaves that any fool could tell were inedible? Why didn’t he ask someone how to eat a food he was unfamiliar with? The doctor is trying to shift responsibility for his own ignorance and carelessness to the blameless eatery: diners are presumed to know what they are ordering, and be able to eat their food safely without an instruction manual. But now, thanks to him, there will have to be instruction manuals. Just wait.
If, by some miracle, he should win his lawsuit, or perhaps even if he doesn’t, this ignorant, gluttonous, irresponsible man will succeed in raising the operating costs of all restaurants as they try to stave off lawsuits by self-destructively ravenous litigants like Dr. Carvajal. There will have to be warnings and disclaimers on bananas (“Don’t eat the peels!”), oysters (“Don’t swallow the shells!), olives and avocados (“Don’t chew the pits!”) as well as any dish containing bones. Some first time Mai-Tai drinker might have never seen those little umbrellas—better warn him not to drink his! Meanwhile, the rest of us will be forced to listen to warnings memorized by servers, informed, like we are in airplanes, that we have to endure the same instructions every time we go out to eat, because lawyers and insurers can not let the establishment take the risk of assuming that because we’ve ordered the lobster, we know enough not to try to eat the shell and claws.
All because of Dr. Carvajal. He gets some undeserved money for his stupidity, the restaurant pays it, and the rest of us suffer for his foolishness…forever.
Bon Appetite!
The Golfer:
Name: Azad Anand, of New York
Occupation: Doctor
The Incident: Dr. Anand and his friend, Dr. Anoop Kapoor, were enjoying a round of golf at Dix Hills Park Golf Course in New York in 2002. Dr Kapoor attempted to hit his ball out of the rough but hit it badly, and shot it straight off of Dr Anand’s head, who was close by. Dr Anand lost the sight in one eye as a result.
The Lawsuit: Dr. Anand claims Dr Kapoor was negligent by not shouting the age-old warning of “Fore!” before striking the ball. This one is currently on appeal; two courts have already ruled that Dr Kapoor had no legal obligation to yell “Fore!” on a crowded golf course, and that Dr. Anand assumed the risk of being hit.
Ethical breach: There are such things as accidents. There are also such things as friends. When a friend injures you in an accident, the fair, kind, loyal and responsible thing is to tell him that it isn’t his fault, accept the vicissitudes of fate, and be a friend. Suing him is unreasonable and wrong. This was obviously an accident that could happen to anyone. Bad luck. To spend eight years trying to squeeze damages out of a friend (or, presumably ex-friend by now) is substantial evidence of a mean and petty character.
Final Thoughts
What should we make of the fact that the plaintiff in both of these despicable lawsuits are doctors–those same professionals who bemoan the modern tendency to sue physicians every time treatment doesn’t work or a diagnosis proves wrong? Here are two doctors, at least, who display the same irresponsible, greedy and unreasonable attitude toward others when something goes wrong that their profession accuses ungrateful patients of doing, driving up the cost of medical practice and health care. Maybe they have just adopted the ethics of their adversaries. Or maybe they only object to abusive and unfair litigation when it’s aimed at them.
Don’t blame the lawyers. Clients decide to sue; both of these doctors brought their cases to lawyers, who exist to help citizens use the legal system for their own ends and objectives. Maybe both lawyers think their clients are wrong, but the two litigious doctors still have the right to have a court decide how wrong they are. It is their lawyers’ jobs to let them exercise that right, however irresponsibly.
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UPDATE: 12/29/10 Dr. Anand lost his suit. New York’s highest court ruled that getting hit by a stray golf ball is an assumed risk of playing the game. You can read the opinion here.
Ethics Alarms 
I don’t agree with that at all. First, it suggests that ethical wrongdoing is a zero-sum game — that if you assign some to the plaintiffs, there is less left over for the lawyer. I don’t buy that. Second, I don’t buy in the least — and I don’t think the legal ethics authorities buy — that a lawyer may ethically bring a frivolous suit. So either the suits aren’t frivolous after all (not familiar with the golf one, so won’t say, but I think the artichoke one is clearly frivolous), or if they are then the lawyers are unethical to bring them.
Ken: I wouldn’t take the lawsuit….either one. But neither is frivolous, as you undoubtedly know—at least the way the Rules and court has defined frivolous. If there is a chance that a jury will find the restaurant negligent…and there is, if the judge lets it go forward, then it’s not frivolous.
I think they are lousy suits to bring, for the reasons stated. I think the lawyer has to so inform the clients. I think if the plan (in the artichoke suit) is to file in the hopes of getting a settlement, that is clearly a 1.2 and 3.1 violation. But a lawyer’s job is to give citizens access to the law, and allow them to try what they would try if they were lawyers. IF the lawsuits are per se frivolous, then everything you say is correct. They aren’t though…there are good faith theories behind each…just dumb ones.
Practically speaking, about the only time I see sanctions for frivolity is when a lawyer brings an appeal on the same issue that was shot down by the same court.
Ken—I’d also ask: don’t you think that Rule 1.2’s provision that says that a lawyer does not endorse a client’s belief or motives by taking a case does exactly what you deny? It says that a client can have unethical reasons for bringing a case, but the lawyer can still bring it ethically.
Lawyers bring frivolous lawsuits all the time: they want their third, and unless a judge or ethics committee calls them on it, they get away with it.
What slays me is the fact that these are doctors bringing these suits. These poor, beleaguered doctors who are thinking about leaving the medical profession because their malpractice insurance is so high. So what’s a mere sponge or forceps left in a surgical incision, or a misdiagnosis found just in time to save a life?
But artichoke innards? Heavens, we absolutely must sue the restaurant owner, because we went ahead and ate material that would have been clearly inedible to any one, much less someone trained in the workings of the human body. Every Chinese restaurant owner who serves Sezchuan food better be on notice that some moronic and litigious doctor may actually eat those long red peppers! Mexican restaurant owners can no longer sell tamales because some other poorly educated medico will actually eat the corn husks in which the filling is cooked! The lobster example is my favorite, but start looking for warnings on all shellfish soon, all the way down to “don’t eat the tails” on grilled shrimp.
Re the golf ball business. I believe it was Mark Twain that said golf was a good walk ruined. If doctors, as is apparently their wont, want to chase little white balls around a phony bucolic setting, then let them. But people get hurt playing golf all the time. To sue a friend for an injury, albeit a serious one, only shows that doctors are as small, mean and greedy as everyone else.
“First do no harm” indeed.
Elizabeth, it may be that you’re to young to have memories of this, but attempting to eat a tamale, corn husk and all, has famously (infamously?) been attempted by no less than the President of the United States (at the time), Gerald Ford. He was on a campaign swing in Texas, was offered a tamale to try and, you can guess the rest. Ford didn’t know anything about tamales, but all the same, he figured out that something was wrong pretty quickly, so your example still holds, Anybody who’d try to eat a corn husk—past the first bite, anyway—is an idiot.
Well, you obviously don’t understand. In medical school, people are transformed into doctors. They are no longer merely human beings, they are Doctors! How dare such a restaurant to cause harm to one so close to divine! How dare they serve something that has harmful components to one so kind, benevolent, and wise as to write unnecessary prescriptions for antibiotics for a mere $100/signature.
Sorry, I will try to tone down the sarcasm next time.
Nothing unethical about sarcasm!
But our system protects idiots. This is my disagreement with Ken, above (and Ken’s a lawyer, presumably a fine one, definitely an ethical one.) Those little plastic things in pill bottles say “Do Not Eat.” A product called “The Off-Road Commode,” a toilet seat that is designed to attach to the trailer hitch of a truck, has the warning “Not for use on moving vehicles,” The underside of a cereal bowl has the warning, “Always use this product with adult supervision.” A warning provided with a 1″ by 4″ LCD panel, reads, “Do not eat the LCD panel.” Anyone who needs these warnings is capable of eating an artichoke, leaves and all. It’s just not a frivolous lawsuit. It could win.
This is why I don’t try new things when I’m out by myself. My brother-in-law is an executive chef and nearly all the time, everything on the plate is edible, down to the flowers that make the plate pretty. This restaurant lawsuit is indicative of something, and it has nothing to do with what was said above:
I would make an argument that the restaurant lawsuit has more to do with the polarization and self imposed seclusion of individuals in society.
People (the doctor) don’t want to be told what to think or what to do. They’ve turned off their listening devices (ears) and think they know it all. They don’t consider other points of view and believe others don’t have anything substantial or important to add.
Other People (the restaurant, people who know how to eat an artichoke) assume that because People have tuned out and don’t listen, that there’s no use in saying anything. They begin applying the default setting of silence because they don’t want to be perceived as thinking someone is an idiot or had never eaten an artichoke before.
So, this is the society we live in. Everyone’s preaching their “point of view” so loud that people tune out; and people with some pretty important information see that no one is listening and keep their mouths shut. Meanwhile, those who need information, having conveyed that they “know it all” are too proud to ask for information and see if a new point of view might be in order.
Don’t get me wrong, the Doctor is still at fault. He lives in this society, he should know the risks of being uninformed. I’m simply stating that I can see how this happened.
Great insight, Tim.
I once inadvertently ordered “duck feet” at a Chinese restaurant. I had no idea what I was supposed to eat…the webs? The meat around the bones in the legs? The waiters all watched me puzzle it out. They were laughing like crazy.
I should have sued them.
“The tort system evolved to ensure that those injured by the recklessness, maliciousness or negligence of others can enlist the courts made juries to be made whole. ”
I’m assuming the second “made” was supposed to be “and” ?
-Neil
No, I’m just having a stroke.
Yes…thanks for the proof. Don’t know what that was all about.
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