The Myth of a Litigious Society Hurts Us So Much

Full disclosure, I haven't read this book.  I am using it as a prompt for a rant at the same time as giving publicity to the writer, David Engel, a well-regarded academic who happens to be a cousin of my husband and is a wonderful person.

I gather from perusing the table of contents of this book that it is mostly here to show us that even though we think we live in a society where everyone sues at the drop of a hat for everything, we don't.  That is a myth and I will add, that this is a myth that injures us so much.

The next book can be about all the ways in which this myth injures our society, our entrepreneurship, our health.  Maybe that should be David Engel's next book: the injuries the myth has caused.  I could probably write a post every day for a week and only begin to cover it.

Here's the first one:  Dentists x-ray you a lot more than they should.  This is live for me right now because our daughter has a dentist appointment this afternoon and we can't get them to clean her teeth without subjecting her to needless radiation.  All health professionals in the US have a ludicrously outsized idea of the risk that they will be sued.  This is supported by movies, tv shows, constant references.  And it is false.  Not only won't they be sued for harms they haven't caused due to negligence, they won't be sued for harms they have caused due to negligence.

In California, the risk that a health professional, clinic or hospital will be sued is even lower because all health professionals are protected by a law known as MICRA (the Medical Injury Compensation Reform Act of 1975) which capped compensations for medical injuries, even those demonstrably the fault of the provider at $250,000 for non economic damages--a cap so low that it effectively renders it impossible for lawyers to justify taking cases.  Consumer groups and consumer attorneys have tried several times to raise this cap or at least put a cost of living adjustment on it, but over and over again the myth of a litigious society is lifted up by insurance companies and big health care companies and Californians or their representatives willingly vote to effectively give away their right to a day in court.

So that brings us to dentists--amongst people who study the effects of radiation, it is well known that the amount of radiation that dentists subject us to in x-rays is way too high, despite precautions taken, to have annually.  Yet, "the industry standard" for dentists at least in California, is to x-ray every year. And when you, as I did yesterday, question dentists or their staff vigorously as to why that is the "industry standard," you learn that it is the perceived risk of being sued that is driving that "standard."  The only way you can get them to not x-ray you is to promise not to sue them.

Let me break this down for you:  dentists aren't worried that they'll harm you.  They are harming you. They are harming you annually with unacceptably high doses of radiation.  They are worried that you'll harm them by suing them.  And if they have an x-ray that shows that their own judgment and intuition about what was going on in your mouth is correct, they think their malpractice insurance will be lower (it might not be, different rant) and they think they'll successfully defend themselves. But, the reason Engel's book is important is that all of that is based on a lie: you won't sue them.  And if you live in California, you effectively can't.