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
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.
Name: Azad Anand, of New York
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.
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.
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.