Malwhacktice

This began as a comment in response to my colleague's superb polemic of March the 6th, but then it sort of got too long and I realized that no one would read it; gentle readers, saddened as I am to say it, I am no Franz Kafka. When I write something, it is meant be read. My response is below--it was written in haste, originally as a comment, so please excuse the absence of my usual verbal mastery.

I'm no expert, but in that he was pretty young and had many years of steady, high-quality work ahead of him (as we all came to expect), a claim for compensatory damages this high shouldn't be too surprising. Estimated future earnings of the deceased (for a period of years extending until the end of the deceased person's average life expectancy or retirement age, depending on the job, etc.) are indeed a significant factor in the calculation of damages for malpractice, and as I understand it jury instructions in malpractice cases almost invariably include some formula for this calculation. On one hand this seems wise: we can't actually compensate people for lost loved ones, because we'll never be able to calculate exactly how much, say, a spouse's love (or something) may cost (even if we could, it would probably be too depressing).

Human affection being so intangible (in economic terms), but nonetheless significant and shit (even judges have families...except for my boy Ben Cardozo), we have to compensate people somehow, thus the focus on what courts call "lost earning capacity." --Of course, courts do grant monetary damages for intangibles (pain and suffering, for instance). You may take issue with a legal regime that values the few remaining years of an aging billionaire's life over six or seven decades of a working class (for the hell of it) black teenager's life. Most would. Despite, or perhaps because of this, it actually seems like a perfectly American way to compensate for malpractice and wrongful death claims in general.

That said, I think Ritter's widow will probably settle for much less than $67M (and it will still be exorbitant).

While the high damages awarded in malpractice suits are one source of the skyrocketing costs of healthcare, they are not the only one (just try finding quotes for average med. malpractice insurance rates, I just spent about 20 minutes and failed and I don't even care. That's a lie). litigation costs can also get pretty high because some doctors try to cover up their mistakes, and sometimes because insurance companies compel their clients to use every available nuance of procedure to get cases dismissed.

Prohibiting the widow ritter (and those of her ilk) from bringing such a claim (which is all kinds of unconstitutional but I won't go there) isn't going to necessarily reduce healthcare costs unless it takes a wider view of the whole HC food chain. If the claim is truly absurd (say, based on some more reasonable formula for the calculation of damages than the one most states use now), it is likely to be dismissed or (almost certainly) reduced to a slightly less egregious sum.

Forcing us to pick between citizens' rights to due process of law and lower healthcare costs is sort of terrifying (& instructive). We shouldn't have to choose one over the other. Both interests are integral to what we (or, at least, i, the actual rod) envision as a modern society: one is essential to democratic life and the other to life itself.