Imagine that you have an eighteen-month old son who is suffering from severe pain in his back and legs, and after a consultation, the doctor insists that you are simply a neurotic, over-worded parent and sends you and your family to a psychiatrist. Upon getting a second opinion, you discover that your son has a tumour on his spine. Or, imagine that a family member receives a gall stone operation and ends up losing their pancreas, most of their stomach, small bowel and spleen. In addition, the doctor stitched through the mesenteric artery and failed to give a proper diagnosis before the operation. Your loved one dies shortly thereafter. As responses to these incidents, the doctors and hospital staff do not offer any apologies or explanations other than "it was just one of those things." The experience leaves you feeling angry, bitter, betrayed, and humiliated. The sad thing here is that these scenarios and post-incident reactions are based upon actual accounts reported from either the patients who were involved or their relatives.
If you found yourself in one of these or an analogous situation, what would be your reaction? Would your only ambition be to get compensated and nothing else, or would you want to get some answers, accountability and perhaps the added assurance that the same thing does not happen to someone else? Some would say that in order to get these latter things, medical malpractice law needs to remain based in the tort system. However, the benefit of having the tort system play a role in medical malpractice law is not a universally held proposition as is evidenced by the following remark:
A totally irresponsible legal system, driven by a small cadre of
lawyers who have hit the mother lode, has produced perhaps the most
dysfunctional medical-liability system in the world. Juries hand out
millions of dollars not just for lost earnings but also in
capricious punitive damages in which the number of zeros attached to
the penalty seems to be chosen at random ... This is not a hard
problem to fix. Tort reform is not rocket science ... The current
system is crazy, ruinous and unfair. And it is easily changed. By
This quotation presents a stark and pessimistic view of the current medical malpractice system, as well as malpractice lawyers, and should set off alarm bells in the ears of any medical malpractice lawyer in Canada, as talk of tort reform with respect to medical malpractice litigation inevitably leads to a dialogue about no-fault based compensation schemes for avoidable medical injuries. (3) Such a scheme would result in a great reduction of possible files (and therefore income) for some of these lawyers. Indeed, this is not a pleasant prospect for lawyers who practice in this area. The situations described above, however, suggest that there may be other non-economic and unselfish reasons for maintaining the current tort-based medical malpractice system. Thus the question arises: are there non-economic and non-efficiency based concerns that ought to be addressed when discussing the reformation of the current medical malpractice system?
The focus of this paper will be an attempt to answer this question in the context of whether the medical malpractice system adequately addresses and achieves its torts-based goals. (4) I will first briefly discuss the basic premises of tort, negligence and medical malpractice law to establish that medical malpractice law, in its current manifestation, fits into the category of tort law. Second, I will discuss some possible goals of tort law that are relevant to medical malpractice law and attempt to assess the level of success medical malpractice law has in achieving these goals. Third, I will develop the "moralist" view of tort law that there is an undeniable link between tort law and morality. This discussion will explore the intangible or human element that seems to be addressed in the tort law system and will involve the idea that a patient's concern after having been subjected to negligent medical treatment go beyond the mere desire to be compensated. …