Jewish World Review Jan. 24, 2003/ 21 Shevat, 5763

Marianne M. Jennings

Marianne M. Jennings
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Consumer Reports


There are only two types of people in the U.S.: Trial lawyers and their clients and those who have had to pay trial lawyers and their clients


http://www.NewsAndOpinion.com | The media seize upon a "shocking" study that shows evil, careless, money-grubbing doctors leave "stuff" in surgery patients. Dr. Atul Gawanda, chief surgical resident of Boston's Brigham and Women's Hospital and co-author of the study, found 54 stuff-left-in-patients cases in 800,000 surgeries. There is malpractice liability in these cases because of res ipsa loquitur. The thing speaks for itself.

However, Dr. Gawanda did not find negligence, i.e., no one failed to comply with surgical procedures for counting instruments and "stuff" in the 54 surgeries. Rather, "stuff" was left behind in either emergency surgeries or, as the good doc phrased it, when there were "very large patients." "Stuff" gets lost in the portly body.

McDonald's should be held liable. Patients who ate one too many Big Macs deserve a break today. Recent lawsuits blame McDonald's for obesity, which means a higher risk of "stuff" being left behind in McDonald's fans' surgeries. Res ipsa loquitur.

Litigation is out of control. Fault is irrelevant. Even the dense recover. Last year, one Ms. Bullock won a $28 billion judgment against Philip Morris because she died from smoking cigarettes carrying all but a skull and crossbones warning about tobacco's risks.

Trial lawyers call these large verdicts rare. Perhaps so, but they have their cultural impact. The reports of lottery-like verdicts, the billboards on every corner with "Been in an accident?" and those TV lawyer ads with a junior-high thespian look incite society.

Compensation to all for all mishaps. Stuff happens, but res ipsa loquitur.

There are only two types of people in the U.S.: trial lawyers and their clients and those who have had to pay trial lawyers and their clients. Those in the first group feign justice seeking. Those in the second group see injustice and seek reform. Having been through the bowels of a personal injury case, I claim the reform group.

Just over 2 years ago, a 19-year-old bicyclist going the wrong way collided with my car. He fell from his bike; neither had a scratch. He groaned, moaned and used fowl language my ears have not heard before or since. I called 9-1-1 and stayed by him, asking if I could call someone for him. He had me call his mother. Her employer could not find her, but her son chimed in, "She's in the smoke room." Actually, she was in the "*#!@ing smoke room," but they are the same.

Being on a university campus for 25 years, I am skilled in spotting young people who are three sheets to the wind. This young man was high. When he complained of tingling, the paramedics, familiar with res ipsa loquitur, were forced to assume neurological damage and whisked him away to the trauma center despite tingling being the general goal of those who take psychotropic drugs of the street variety.

An officer gave the young man a ticket for riding in the wrong direction on the wrong side of the street. We waited for the young man's mother to arrive from the smoke room. She never came, but his girlfriend did. She was clothed in black, possessed of alabaster skin. Think Morticia Addams. She had come to see where her amour had experienced his medieval catapulting.

His paramour pushed a self-constructed wooden cart filled with compartments containing rats, gerbils, hamsters and other members of the rodent world only a zoologist could identify. The tiny beasts and one serpent were hidden behind curtains and carpets on the colorful cart. It was as if Winona Ryder had employed her skills at a pet store. She and her cart o' animals soon rolled away.

I called to warn my insurer that a PI scam was a'comin'. I told the claims rep that I would call the hospital to check on the young man. "No! " she blurted out, "They'll use that against you for establishing fault."

Being first and foremost a human being and res ipsa loquitur aside, I called the hospital. A nurse there, in utter violation of hospital policy and 92 federal statutes, gave me a full report. Bicycle boy felt "tingling and numbness" and was spending the night in intensive care. A battery of tests found nothing.

The next morning, as I checked on this chap, he was busily calling my insurer. I took to the Internet and found his name among criminal court defendants: felony drug charge pending. Tingle boy ran up $15,000 in medical bills for no injury. For over 9 months, he made demands for compensation even as he refused to provide access to his medical records, asking my agent once, "Would those records show anything in your blood?" Once he had negotiated a plea in his drug case, he released hospital records that showed drugs were in his system that day.

His lawyer still demanded the usual 3-5 times his medical costs for pain and suffering. He didn't get quite that, but my insurer did settle. I now pay an "accident premium" on my insurance policy.

Fault was irrelevant. My compassion for the young man was used against me. Has litigation gotten out of hand? Are we a litigious society, driven by greed, regardless of fault? My experience tells the tale. In fact, res ipsa loquitur.

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JWR contributor Marianne M. Jennings is a professor of legal and ethical studies at Arizona State University. Send your comments by clicking here.

Up

01/16/03: "My ex is a minority, so I deserve special treatment"
01/07/03: Why libs will never have a Rush Limbaugh
01/02/03: The year that was
12/26/02: Capital offenses, power and Harry Potter
12/20/02: Mundane superlatives cause trouble
12/09/02: Let the sacking begin
12/05/02: Amazing Grace that saved me from my CO2 emissions
11/27/02: Free speech, Harvard, and First Amendment looneys
11/25/02: Eminem culture
11/14/02: Hollywood trash
11/04/02: Patron Kennedy Saints
10/28/02: What the snipers and Moose taught
10/22/02: Nobel Prizes and other ventriloquist acts
10/17/02: The window on the liberal mind and war
10/14/02: Leaders don't change; followers do
10/07/02: Do it yourself
09/27/02: Hosers rise again
09/20/02: Girly gridiron
09/13/02: Erudite buffoons
09/11/02: One year later, crass demands, greed, and litigation are back --- but rights are diminished
09/06/02: Public schools: An unqualified success
08/30/02: The Shakespearean tragedy of affirmative action
08/23/02: Hollywood Joe's admission
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08/08/02: Ode to a coal miner
08/02/02: Sarah Brady's gun gift
07/26/02: Don't do it, Tiger
07/18/02: Reality Muppets
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06/20/02: Behind the music
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04/29/02: The irritation of the modern wedding
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04/15/02: Harvard takes off its pants one leg at a time
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03/31/02: Oscars' subtle bigotry was embarrassing
03/22/02: Blame Oprah, Rosie, Sally, Ted, David
03/14/02: The costs of women's feeble choices
03/08/02: Botoxic faces
02/28/02: The dangers of organized philanthropy
02/25/02: Don't take the gold
02/14/02: Ease up on the brothers and sisters
02/11/02: Because I was courted
02/05/02: Fat fault
01/24/02: Tolerance does not mean stupidity
01/17/02: Too old too soon
01/10/02: Ethically challenged firms
01/03/02: The year that was
12/27/01: The Twelve Days of inconsistency
12/20/01: Free Speech and the political spectrum
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12/06/01: Power to influence
11/29/01: The disappearing art of grading
11/21/01: The Big Two-Five
11/13/01: You can never find a lib when you need one
11/01/01: Unlucky in sports
10/26/01: An epidemic of counselitis
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10/12/01: Of human nature and monsters
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10/01/01: Post-September 11 security
09/20/01: No tinhorn terrorists can frighten us
09/06/01: If there is no honor in youth sports, it is because of the adults
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05/30/01: The lesson of the Mr. Green Jeans senator: 'Moderate' is a classy term for wishy-washy
05/25/01: Baseball has not been so good to me
05/18/01: Clothes make the woman
05/11/01: Selective precaution
05/04/01: Grades: Equality of students, by students, for the students
04/27/01: The Horowitz revelations as seen by a college professor
04/20/01: First, let's kill all the tests
04/13/01: The continuing mistake of underpricing electricity
04/06/01: That pill, Julia Roberts
03/29/01: If it weren't for the parents, we might accomplish something
03/23/01: The melt down of the academy
03/15/01: Columbine redux: Moral infants
03/09/01: The lessons of Tom and Nicole
03/01/01: Pardon the temporary outrage
02/23/01: In defense of homework
02/20/01: A Message for faith-based organizations: Don't take the money, just run
02/06/01: Enough already with the Clintoons
01/26/01: The challenge to be better than we have been
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12/01/00: Liberals' art of trashing of women
11/20/00: Put me out of my misery
11/17/00: On being a statesman
11/13/00: When it's broke, fixing it wouldn't offend the Framers
11/08/00: ELECTION 2000: I SURRENDER
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10/20/00: Ten things the gay community should understand
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09/29/00: The capacity for truth
09/22/00: Charity with strings and an agenda
09/15/00: The taming of the shrew: Gloria Steinem takes a husband
09/09/00: Why rich folk don't bother me none
08/28/00: Survival of the not-so-fit but conniving
08/25/00: Conventions: A study in contrasts
08/18/00: Resenting the accusations of racial prejudice
08/04/00: Women: Their own worst enemy
07/21/00: Hillary: Our longshoreman First Lady
07/21/00: SUVs: The root of all evil
07/14/00: The basketball gene and white men not jumping so well
07/07/00: I wanna be around
06/23/00: The liberal conversion
06/14/00: Sex and the City: The shallow but vulgar female
06/08/00: No excuses schools
06/02/00: Oh, Canada: Our Nutty Neighbors to the North
05/23/00: The new mollycoddling coach
05/16/00: On adultery and leadership
05/12/00: Taking your lumps
05/02/00: Elian: There's never a liberal around when you need one
04/25/00: Life's circle and tenderness
04/18/00: Womyn who want it both ways
04/11/00: The monsters we're raising with the ergo proposition
04/05/00: Endowing the Hooters Chair for Literature Appreciation
03/28/00: Dr. Laura: The passive/aggressive kid's mom
03/21/00: Dough and campaigns
03/14/00: The volunteerism of conscription and pomp
03/07/00: Hope and pray that religion remains a force in politics
02/29/00: Ditzes in TV Land
02/22/00: Cranky nitpickers make writing a [sic] experience
02/15/00: Those chameleon 60s activists
02/08/00: McCandidate McCain: Flirting with principles
02/01/00: The demise of marriage
01/25/00: Stroke of the pen, law of the land: Clinton's Camelot
01/18/00: Off the Rocker Rorschach Test
01/11/00: Oprah's lemmings
01/04/00: Struggling mightily amidst the comfort
12/23/99: Confused fathers
12/14/99: Drop-kicking the homeless
12/07/99: Turtles and teamsters, side-by-side in Seattle
11/29/99: When conservatives behave badly
11/22/99: Compassionate conservative: Timing and targets
11/18/99: The elusive human spirit and accountability
11/11/99: Succumbing to the intellectual child within with the help of crackpots and screwballs
10/28/99: Live by litigation, die by litigation
10/22/99: Jesse, Warren, Cybill, Donald and Oprah
10/14/99: Inequality and injustice: It's the big one
10/05/99: Dan Quayle, morals and schoolyard bullies
09/30/99: The monsters of epidermal parenting
09/21/99: The Diversity Hoax
09/15/99: Waco Wackos
09/09/99: Selective censorship
09/01/99: The village, the children, judicial imperialism and abortion
08/24/99: Naughty Newt?
08/17/99: In defense of Boy Scouts and judgment
08/10/99: Ruining the finest health care system in the world
08/03/99: Nihilism and politics: ethics on the lam
07/26/99: Of women, soccer and removed jerseys
07/23/99: Not in despair, a mere mortal doing just fine
07/20/99: "Why me?" How about "Why us?"
07/13/99: Bunk, junk & juries
07/06/99: An Amish woman in a Victoria's Secret store
06/30/99: That intellectually embarrassing Second Amendment
06/24/99: Patricia Ireland eat your heart out --- but check out the recipe in 'women's mags' first
06/22/99: Dems and the Creator coup
06/17/99: True courage is more than just admitting troubles

© 2002, Marianne M. Jennings