Published in June, 2006
(Note: I-330 was a recent initiative in Washington State called for medical tort reform, which was rejected by public vote).
Paul Johnson, in his seminal history of the twentieth century titled Modern Times, observes that successful governments succeed only by exercise of the rule of law. By rule of law, it is meant that the law is transcendent and non-arbitrary, containing the rules that govern society and dictate public morality, applying to the whole of society without prejudice or exception, and is neither affected by the will of the majority nor the coercion or whim of those that govern. The rule of law ensured citizens that misbehavior and its penalties would be clearly identified, that those penalties would be fairly applied, and that individuals would be able to engage in commerce and recreation reasonably free from government interference. Those countries that have exercised the rule of law have been shown throughout history to prosper, with the greatest contentment among its citizens.
History shows that when the rule of law is absent in society the rule of an elitist few becomes the norm, resulting in the oppression of the majority. One need only look at the serfdom of the middle ages, the slavery of the American South, or the unfortunate masses of the twentieth-century social experiments of the Soviets and the Chinese for evidence. In American, the rule of law is subtly being replaced by an imitation that masquerades as freedom, but is actually another form of oppression, the rule of individual rights.
We were told repeatedly by lawyers during the I-330 campaign that tort law should not be changed, since it would lessen individual rights. Individual rights have become the defining aspect of what it means to be American. Yet, as more individual rights are defined, paradoxically we progressively lose more of our rights. Ultimately, the rule of rights, without the standard of an absolute reference point for law, degenerates into either the rule of the mob or the rule of the elite.
The rule of the majority is essentially mob rule rather than the rule of law. Mob rule was appealed to in the I-330 campaign, with physicians hoping that the majority could be persuaded by emotional argument that physicians were being unfairly treated in the courts. At the waning of the Roman Republic, political rivals who garnered the largest mob before the senate controlled the senate. The Roman senate in return catered to public appeal (the mob) through free bread and circuses–food stamps, public entertainment, and free health care. It was no surprise when I-330 went down, as the doctors were neither providing to the public free bread and circuses, nor creating mass hysteria on the steps of the legislative building in Olympia. Our history is Roman history.
The rule of the courts is a form of elitist rule: few rule over the many. Rule by the courts obviates the rule of law by allowing these “enlightened” few, whether it be the Supreme Court or a local court, to adjudicate in an arbitrary fashion dictated by the judge or jury’s emotive perception of the case. Outside of actual rule of law, cases that come to the court degenerate into the absurd, and the ruling are governed by the the rhetorical skills of the plaintiff and defense counsels, the personal gain of the judge or jury, and the whims of the moment. The courts find it to their advantage to promote such elitism, which offers them power that is not possessed by other political entities. An example of how the rule of the courts replacing the rule of law affects medical malpractice is the strong tendency to settle out of court, since it is evident that the emotional persuasion of the judge or jury can easily trump the legal merits of the defense case.
The U.S. constitution was intended to assure citizens that disputes and wrong-doings would be adequately addressed by the authorities, and that there would be proper redress of injustice. Instead, we have down-graded the role of personal and public morality and focused on rights. The results is a dread of the law, a fear of the courts even when one has not done wrong, and the sense that the law system has become so complex that everybody is guilty regardless. We experience neither domestic tranquility, nor the blessings of liberty, as is promised in the preamble of the constitution. Indeed, the virtues of the rule of law for which Paul Johnson so heavily argues are negated by our progressively rights-oriented interpretation of law. There is no business interchange, personal interaction, or public discourse that escapes the risk of a capricious lawsuit since the law no longer protects individuals.
The result of the migration from a rule of law to a focus on rights has led to our frustration in the realm of tort law. Even California, with its strict MICRA provisions, has a serious tor problem. MICRA (and I-330) touch upon economic aspects of the tort crisis, but do nothing to address their root causes. An epidemic of frivolous lawsuits, all based on skewed concepts of law and personal rights will not be fixed by the initiative neither in medical law nor civil law. Examples abound (see for example www.overlawyered.com or www.stellaawards.com).
Looser-pay-all provisions may put some restraint on a lawsuit-bent culture. Medical courts are a solution that has worked well in many other countries, has allowed physicians and not lawyers to judge physicians, and has kept politics and emotional argument from clouding the judgment of a case. Medical courts have the potential for corruption, with judgments made for political or personal expedience rather than by rule of law. Without strict return to rule of law in the courts, we have no hope of ever seeing justice for either physician or patient.