(In)Juries, (In)Justice, and (Il)Legal Blame: Tort Law as Melodrama - Or Is It Farce?


According to the National Academy of Sciences' Institute of Medicine (IOM), preventable medial errors are not so much caused by the carelessness of individual physicians, nurses, or other hospital personnel. Rather they are the result of cumulative opportunities for human error inevitable in today's complex medical system. The ICM report calls for shifting attention away from the faults of individual care providers to the overall system. The current tort system's "blame culture" is itself blamed by the IOM for impeding improvements to patient safety because, among other things, it deters physicians from reporting their errors in the first place. But the manner in which personal injury cases are prepared and litigated is totally at odds with the IOM report's emphasis on systemic causes of avoidable medical failures, according to law -professor Neil Feigenson's book, Legal Blame. Instead of uncovering the systemic origins of accidents, personal injury litigation not only distorts accidents as having a single cause but also paints them melodramatically by finding a histrionically reprehensible flaw on the part of some single individual. Thus, complex institutional factors are not just ignored, they're repressed. Exhaustive examination of scholarly literature and of actual trial transcripts reveals that judges and jurors are more likely to find liability (or to reject it) if they can be made to focus on a bad guy (either plaintiff or defendant) as opposed to intricate, interconnected processes or programs that may, in particular cases, have been amiss.

About the Author

Jeffrey O'Connell is the Samuel H. McCoy II Professor of Law, University of Virginia School of Law. Joseph R. Baldwin is a J.D. at University of Virginia School of Law, 2002; M.A., University of Maryland, 1993.

By uclalaw