Ethics and Excuses: The Crisis in Professional Responsibility

By Banks McDowell | Go to book overview

surance and in order for that to be available, the professional has had to incur legal liability, which is to say the courts have found or would be likely to find that this was a case of malpractice. This is inconsistent with saying that it was a good-faith mistake. The courts, desiring to compensate the victim for professional errors produced by a good-faith mistake, must label it as serious wrongdoing in order to unlock the insurance proceeds. Perhaps a better analog that could be used here to develop protection for good-faith mistakes would be the concept of products liability insurance developed when it was not possible or proper to find the manufacturer or retailer of a defective product at fault. This is a kind of insurance scheme developed to spread the loss across all consumers by charging each a small increase in the price to create an insurance fund that would be used to compensate those who actually were injured. This has not raised serious practical or cost problems in manufacturers' liability because the incidence of serious injury from a defective product is sufficiently low in comparison to the number of products sold that the cost to each consumer is not large. The mistakes professionals make that they would like to have labeled good-faith mistakes are proportionately larger. We can see this in the cost of malpractice insurance among some specialties, such as obstetrics or neurosurgery where unsatisfactory performance is sufficiently frequent and expensive that the "insurance" cost which must be passed on to consumers or to health insurers is very great indeed.


NOTES
1.
Samuel Gorovitz, DOCTORS' DILEMMAS: MORAL CONFLICT AND MEDICAL CARE ( New York: MacMillan, 1982), pp. 29-30.
2.
A penetrating analysis of the demand for and difficulties inherent in a quest for perfection is found in Ernest Becker, THE DENIAL OF DEATH ( New York: Free Press, 1973), particularly pp. 184-186.
3.
There is a good discussion of how the element of luck relates to the well- intentioned, but mistaken actions of decent people in Joel Feinberg, DOING AND DESERVING ( Princeton: University of Princeton Press, 1970), pp. 191-192.
4.
J. L. Austin, "Three Ways of Spilling Ink," PHILOSOPHICAL PAPERS, 3d ed. ( Oxford: Oxford University Press, 1979), p. 273.
5.
G. L. Warnock, J. L. AUSTIN ( London and New York: Routledge, 1991), p. 79.
6.
See Bernd Guggenberger, DAS MENSCHENRECHT AUF IRRTUM ( Munich and Vienna: Carl Hanser Verlag, 1987). Guggenberger, a well-known German social theorist, argues that the modern complex world makes human error much more devastating and yet human error is a necessary and valuable happening, since it is only through trial and error that we make progress. He argues we must develop a mistake-friendly environment in which errors are expected and do not do irreparable damage.
7.
See Deborah Rhode, "Moral Character as a Professional Credential, 94 YALE LAW JOURNAL 491 ( 1985) and Banks McDowell, "The Usefulness of 'Good Moral Character'," WASHBURN LAW JOURNAL 323 ( 1994).

-96-

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Ethics and Excuses: The Crisis in Professional Responsibility
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1 - Introduction: The Ethical Crisis? 1
  • Notes 10
  • 2 - Responsibility and Excuses 13
  • Notes 23
  • 3 - Ethical Excuses 27
  • Notes 44
  • 4 - Law and Ethics: The Different Systems 47
  • Notes 61
  • 5 - Defenses: The Legal Excuses 63
  • Conclusion 79
  • 6 - The Fallibility of Human Beings 85
  • Notes 96
  • 7 - The Informal Moral Codes 97
  • 8 - The Need to Reformulate Ethical Expectations 111
  • Notes 130
  • 9 - The Professional and the Market--Is Efficiency the Predominant Value? 133
  • Notes 144
  • 10 - The Responsibility of Others Toward the Excuse Giver: The Need for Dialogue 147
  • Notes 157
  • 11 - Conclusion 159
  • Bibliography 163
  • Index 167
  • About the Author 171
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