TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, August 28, 2006

Bailey: More Balance

This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.

Robert W. Bailey, MD, FACS, is a Professor of Surgery (former) & third-year law student at Florida International University College of Law.

My first year law school (Fall 2004) is still somewhat of a blur in my mind.  I am sure that as time passes, the fog will slowly disappear and more ‘fond’ memories will appear.  If it had not been for my excellent mentor in Torts, Professor Andrew McClurg (aka “Tortman”), I am not sure just how many fond memories I would have at this point.

During first-year Torts, I remember being struck by how the law seems to have continually modified itself to create specially crafted rules to allow recovery from healthcare professionals.  It seems as though every time a situation was identified where proving an essential element of negligence would be difficult or impossible under existing rules, the law was rewritten so that the plaintiff could recover.  Two examples that come to mind are Ybarra v. Spanguard, allowing the plaintiff/patient to circumvent the traditional control element of res ipsa loquitur, and Herskovits v. Group Health Cooperative of Puget Sound, allowing recovery under a “loss of a chance” theory where the plaintiff/patient could not prove traditional but for causation.  I was amazed at the creation of such rules, as well as the doctrine of joint and several liability, and the higher standards for professionals, especially for physicians.  This phenomenon appeared nothing less than outright discrimination geared toward allowing recovery from a special class of persons.  But what did I know at the time?  I was just a lowly 1L with only a layperson’s perspective, at best, to constitutional issues and tort law.  Despite my early perceptions, I was able to work through Palsgraf (I think) and successfully complete my introduction to the field of tort law. 

By the end of my second year, I was deeply entrenched in my class on Products Liability, also taught by our esteemed colleague, Professor McClurg.  The most striking recollection I have of that class was just how quickly the law students had learned, almost instinctively, to find fault, even where none was readily or even legally apparent.  Pardon the metaphor, but it was like watching a school of baby sharks getting their first scent of ‘blood in the water.’ Even in factual descriptions where the defendants seemed free of any liability under existing law, the students became very adept at finding some basis for a claim in almost every case or problem we studied. 

In response to this emerging feeding frenzy, I suggested to my classmates that we must always keep in mind that physicians and pharmaceutical companies are working very hard to benefit humankind by saving lives and stemming the course of severe, life-threatening illnesses.  I went on to mention that there did not appear to be very much discussion about the defendant’s ‘point of view’ in either my first-year Torts class or in our current Products Liability course.  Professor McClurg did always welcome and encourage my attempts to speak up for the defense side.  But, as one might expect, my remarks to my fellow students were met with mixed reviews and even outright verbal attacks by one student during class. 

How could I, a fellow lawyer-in-training, ever suggest that a personal injury lawyer even consider the defendant’s point of view?  Torts and Products Liability are courses about personal injury and plaintiff suffering.  Our single, most important goal as lawyers should be geared toward finding fault and getting a recovery for the poor, helpless plaintiff going up against the large, onerous and profit-seeking insurance and pharmaceutical companies.   

So what else should be taught in the area of Tort law?  Lawyers and law schools need to insure that a more balanced approach to Torts is presented in law school.  A well-rounded depiction of the adversarial roles involved in civil liability cases would go a long way toward a more equitable result.  However, the educational approach to the teaching of tort law is not the only issue.  As some of the other commentators to this posting have already lamented, the area of tort reform has resulted in substantial but often unwelcome changes to existing laws.  These changes have come about, in part, as a result of public perception of the ‘greedy’ trial lawyer and the multitude of frivolous law suits.  While the topic of tort reform will continue to fuel discussion for years to come, I would suggest that unless lawyers and law schools ‘step up to the plate’ and take the initiative to correct some of the existing injustices, the legislators will continue to do it for them.  If so, the lamenting lawyers will have no one to blame but themselves.    

Having spent the majority of my professional career involved with the development of new surgical technology, the dilemma facing the innovators of our society today are enormous.  As a starting point, it is clear that new innovations and technology benefit our society as a whole, however, with new technology comes an increased frequency of law suits.  The following excerpts from a law review article help to demonstrate the conflict and paradox that many health care providers and pharmaceutical companies now face:

Under the economic Learned Hand formula, courts impose liability only when the defendant has stopped at a point where further doses of precaution would still cost less than the value of the reduced risk they yield. Therefore, doctors and everyone else should find it cheaper to use the precaution necessary to avoid liability.  How do we reconcile this theoretical result with the observation that courts are indeed finding people negligent and that the number of claims against many medical specialists is increasing at an alarming rate? Indeed, the liability explosion among doctors is especially puzzling because market forces and insurance reimbursement systems usually produce excessive medical precaution. The economic theory of negligence has never explained how defensive medicine and a malpractice explosion can exist simultaneously.


Technology can conquer risk from nature, but technology cannot wholly eliminate risk.  Death seems to have its own grim economy in which risk is conserved.  When new technology creates risk, a substantial fraction usually comes from somewhere else. If the risk added by a new technology does not correspond to some other subtraction -- from nature's toll or from a substitute technology -- we are frequently thinking of sinister examples (e.g., Nazi Germany), not the normal ones.  The purpose of most technology is to delay death or at least improve the quality of life. Therefore, although most technological risk comes from somewhere else, new technology usually reduces the sum of all risks, including natural risk. (Emphasis added)


"Risk-loading technologies" are much more significant to the present problem. They actually increase the amount of risk regulated by the negligence system, either by appropriating it from nature or from some currently unregulated activity. Truly revolutionary machines often transform risk from nature into potential liability. For instance, the invention of the dialysis machine converted natural risk into new potential liability. Before its invention, people were dying from kidney failure, but they were not suing their physicians. Now, if people die after using a dialysis machine, they potentially have a negligence case. The dialysis machine thus reduced the total amount of risk in society (which includes natural risk), but increased the amount of regulated risk.

Perhaps …Judge Learned Hand's 1932 opinion in The T. J. Hooper [may help to explain].  The ships would have been saved if they could have heard the weather report on the radio -- a relatively new invention. Although it was not customary for ships of that type to have radios, Judge Hand though that courts should take a stand in favor of progressivism. In his famous phrase, "a whole calling may have unduly lagged in the adoption of new and available devices.

Many explain the medical malpractice crisis with the same theory. Before the new technology, distressed fetuses could not be saved. Now there are new tests and procedures to identify problems early. Unfortunately, laggard doctors do not use the new tests as soon as they are available.  In the interest of progressivism, courts should impose negligence liability for this failure.

Mark F. Grady, Why Are People Negligent?  Technology, Nondurable Precautions, and the Medical Malpractice Explosion, 82 Nw. U.L. Rev. 293 (1988).

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