The always interesting Ted Frank has some interesting thoughts about differing standards for lawyers and doctors who make mistakes or, at least, are behind a less than optimal result. Ted’s point is that lawyers get the benefit of the doubt in their actions, even if they lose, while doctors get sued. Ted studies this stuff for a living, and I don’t, but here a couple of my thoughts.
The differing standards may be because, due to vastly improved health care over the last 100 years, we have come to expect good health in a way we don’t necessarily expect to win in civil litigation. Win? Heck, a lot of people don’t even expect justice will be done in litigation. Anyone who doesn’t know that litigation is a brutal beast that is just waiting to eat you alive hasn’t been paying attention, and has certainly never read Dickens’ Bleak House or watched Boston Legal. (After all these years, who would have thought we’d find out William Shatner is a really good actor?) Also, if a lawyer messes up a case or is insufficiently diligent, one of the most effective sanctions is to fire the lawyer and withdraw all your business from him. It doesn’t really work out the same way with a doctor. A mistake that impinges on the integrity of your body also has a qualitatively worse effect than losing a case, especially if the losing litigant is an institution. Anyone have any other ideas?