Rationalizing Wrongful Birth and Other Lawsuits

We are told by proponents of capitalism that people are inherently self-serving, even selfish, and this is true to some extent, it is only a half-truth at best. While humans are driven at least in part by selfish desires, they also have an inherent communal impulse with a deep-seated desire that all members of society be taken care of, especially those who are unable to care for themselves. In these days of late capitalism, where greed and selfishness occupy the highest places of notoriety, our communal impulse has found an unlikely outlet: the proliferation of lawsuits.

The Common Thread

What is commonly descried about lawyers and "other left-wing" advocates of the people is that they promote a culture of victimization. That is, they represent people who are in less-privileged portions of society, especially those unable to care for themselves, as victims of someone else's actions.

While the status of victimhood may or may not be legitimate, it is unfortunately a prerequisite for receiving aid in a capitalist society.

TANSTAAFL

"There Ain't No Such Thing As A Free Lunch" is one of the central edicts of capitalist philosophy. Since the rise of capitalism coincided with the closing of the commons, the destruction of shared, ownerless resources, the cost of every lunch must be accurately and minutely accounted for and paid by individual private parties.

So who pays for all the lunches (and breakfasts and dinners) when someone is disabled and cannot provide for him or herself? Families and communities used to step in to care for less fortunate members, but with fragmented families pulling in fewer resources and costs for care rising, this is no longer a sufficient solution. What new solution can be found to find the necessary resources to give vital and lasting care to those in need?

The Litigation Explosion

One of the interesting traits of most disability-causing events is that they can be (accurately or not) represented as the side effect of some highly profitable industry. Combine a penniless victim on the one side with a wealthy (and possibly guilty) agent on the other, and you have the elements of a very successful lawsuit. Lawyers have struck on this combination and found how often it can be successful. Once a few lawsuits succeed, more follow, constantly seeking new victims and those who can be represented as being responsible to file new types of lawsuits.

Dubious Attributions

Lawsuits vary widely in the degree to which their attribution of responsibility is credible. This is distinct from the accusation that a lawsuit is "frivolous" or that we have a "jackpot justice" system. The lawsuit is in response to a real, demonstrable harm, and the awards being given to the victim are not random. Although there is some element of variation among verdicts and settlements, statistics show that objectively-determined merit correlates strongly with increasing awards. But the amount people pay is more in proportion to the injury caused than in proportion to the degree of responsibility.

Some cases are more directly attributable than others. In drug liability cases and instances where a medical error led directly to injury, it is clear that the responsible party is the one who pays. In other cases, it is less clear, such as in so-called wrongful birth cases.

The Case of Wrongful Birth

Wrongful birth is the name given by detractors to lawsuits involving the birth of children with detectable genetic disorders, like Fragile X syndrome and Thalassemia, whose parents sue doctors who did not inform them that they should have tests done to detect whether they were carriers for these genetic disorders. The name comes from the line of argumentation used by medical malpractice lawyers, who claim that parents might have abstained from the conception of (or even aborted) children with these disorders if they had been properly informed. The people made responsible are obstetricians and genetic counselors who are responsible for informing parents of potential risks.

When juries hand down verdicts in favor of plaintiffs in these kinds of cases, they are saying not that the doctor is fully responsible, but that somebody has to pay for the care of this child. In addition, in medical malpractice, defective product, and bad faith insurance cases, juries are partly responding to the exploitive nature of the capitalist system. We all know we pay too much for health care, drugs, and insurance, and that someone is getting rich as a result, and our deep-seated, sometimes unconscious, outrage at the fact makes us more likely to say You (who are making such outlandish profits) have to pay for His or Her (the victim's) suffering.

An Inefficient System

Unfortunately, this litigation system is, like all other capitalist systems, inefficient. A common myth of capitalism is that it is an efficient method for accomplishing tasks, but the truth is that it is really efficient at only one thing: generating wealth for a relatively small number of people. Many other things it does are done very inefficiently. Critics of the litigation system point to the fact that 54 % of the costs associated with lawsuits go to administrative costs, including paying for lawyers on both sides of the case. The majority of administrative costs (78 %) go to the defense of cases in which doctors actually did make a mistake that caused demonstrable harm to the victim. Although the majority of costs could be reduced if guilty doctors were simply made to pay, these percentages are comparable to privately provided services, like insurance, where 42-53 cents out of every dollar go into the company's administrative costs and profits.

Although lawyers redistribute wealth, they are not Robin Hoods, they are just another capitalist institution providing a capitalist service and seeking their own profit as a cost.