Doctors. Teachers. Coaches. Ministers. They all share a common fear: being sued on the job. Our litigation nation—and a plan to fix it
Ethan Hill For Newsweek
Fearing sexual misconduct suits, Rev. Ron Singleton has given up hugging parishioners
By Stuart Taylor Jr. and Evan Thomas
Newsweek
Dec. 15 issue - The Rev. Ron Singleton’s door is always open. That way, when the Methodist minister of a small congregation in Inman, S.C., is counseling a parishioner, his secretary across the hall is a witness in case Singleton is accused of inappropriate behavior. (When his secretary is not around, the reverend does his counseling at the local Burger King.)
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Singleton has a policy of no hugging from the front; just a chaste arm around the shoulders from the side. And he’s developed a lame little hand pat to console the lost and the grieving. The dearth of hugging is “really sad,” he says, but what is he going to do? He could ill afford a lawsuit.
Dr. Sandra R. Scott of Brooklyn, N.Y., has never been sued for malpractice, but that doesn’t keep her from worrying. As an emergency-room doctor, she often hears her patients threaten lawsuits—even while she’s treating them. “They’ll come in, having bumped their heads on the kitchen cabinet, and meanwhile I’ll be dealing with two car crashes,” she says. “And if they don’t have the test they think they should have in a timely fashion, they’ll get very angry. All of a sudden, it’s ‘You’re not treating me, this hospital is horrible, I’m going to sue you’.”
Ryan Warner is a volunteer who runs an annual softball tournament in Page, Ariz., that usually raises about $5,000 to support local school sports programs. But not this year. A man who broke his leg at a recent tournament sliding into third base filed a $100,000 lawsuit against the city, and Warner fears he may be named as a defendant. “It’s very upsetting when you’re doing something for the community, not making any money for yourself, to be sued over something over which you had no control,” he says. So Warner canceled the tournament.
Playgrounds all over the country have been stripped of monkey bars, jungle gyms, high slides and swings, seesaws and other old-fashioned equipment once popularized by President John F. Kennedy’s physical-fitness campaign. The reason: thousands of lawsuits by people who hurt themselves at playgrounds. But some experts say that new, supposedly safer equipment is actually more dangerous because risk-loving kids will test themselves by, for instance, climbing across the top of a swing set. Other kids sit at home and get fat—and their parents sue McDonald’s.
Americans will sue each other at the slightest provocation. These are the sorts of stories that fill schoolteachers and doctors and Little League coaches with dread that the slightest mistake—or offense to an angry or addled parent or patient—will drag them into litigation hell, months or years of mounting legal fees and acrimony and uncertainty, with the remote but scary risk of losing everything. And while lawsuits can be a force for good, they are also changing and complicating the lives of millions of American professionals in ways that confound common sense and cast a shadow over a system that can, at its best, offer people relief and redress from legitimate grievances (Click here to read John Edwards’s essay).
Patients routinely threaten to sue Dr. Sandy Scott, even while she is treating them
The onslaught of litigation is nothing new—nor all bad. Starting in the 1960s, crusading judges and well-meaning social reformers began opening the way for the powerless and the dispossessed to assert their rights by going to court. Large corporations and authority figures were held responsible for their carelessness or callousness. Manufacturers were forced to pay more attention to the safety of their workers and consumers, and public officials were held more accountable to the people they served.
But Americans don’t just sue big corporations or bad people. They sue doctors over misfortunes that no doctor could prevent. They sue their school officials for disciplining their children for cheating. They sue their local governments when they slip and fall on the sidewalk, get hit by drunken drivers, get struck by lightning on city golf courses—and even when they get attacked by a goose in a park (that one brought the injured plaintiff $10,000). They sue their ministers for failing to prevent suicides. They sue their Little League coaches for not putting their children on the all-star team. They sue their wardens when they get hurt playing basketball in prison. They sue when their injuries are severe but self-inflicted, when their hurts are trivial and when they have not suffered at all.
Many of these cases do not belong in court. But clients and lawyers sue anyway, because they hope they will get lucky and win a jackpot from a system that allows sympathetic juries to award plaintiffs not just real damages—say, the cost of doctor’s fees or wages lost—but millions more for impossible-to-measure “pain and suffering” and highly arbitrary “punitive damages.” (Under standard “contingency fee” arrangements, plaintiffs’ lawyers get a third to a half of the take.) This year the U.S. Supreme Court tried to limit punitive damages, and judges often reduce the most outrageous jury verdicts. And the “litigation explosion” of the past 30 years may be leveling off (though one study shows a sharp recent uptick). Even so, the mere threat of a lawsuit is intimidating. Many Americans sue because they have come to believe that they have the “right” to impose the costs and burdens of defending a lawsuit on anyone who angers them, regardless of fault or blame.
The cost to society cannot be measured just in money, though the bill is enormous, an estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers. Our society has been changed in a subtler, sadder way. We have been hardened and made more fearful. Friends and neighbors are more wary now. Almost anyone has to ask: if I say or do something that might be taken wrong, will I wind up in court? Mentors and teachers are restrained from offering either comfort or discipline—might that touch be misconstrued, those stern words somehow made “actionable”?
Perversely, our insistence on enforcing our “rights” has made us less free—less free to use our own judgment to make common sense or humane choices about the way we live and treat others. We are paralyzed by “legal fear,” says Philip K. Howard, a legal reformer who published a 1994 best seller on the subject, “The Death of Common Sense,” and more recently, “The Collapse of the Common Good” (2001). But are we truly stuck? In two of the most contentious arenas—education and health care—Howard has devised proposals to save Americans from a legal system gone mad. He says the key is to separate trivial or frivolous cases that don’t belong in court from those that are legitimate, a responsibility that he says judges have abdicated.
