In Defense of Suing Before the Ungodly

November 30, 2004 | 38 comments
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I recently had dinner with a good friend, who, according to his former doctor, is going to hell. The reason for my friend’s dim prospects on judgement day is that he is suing his former doctor. The details aren’t particularly important. Suffice it to say that the doctor stuck a needle someplace that a needle had no business being and my friend’s wife now has a permanently damaged spinal nerve and constant pain in one arm. Being a lawyer (and an outraged husband), my friend and his wife sued the doctor. All parties are members of the Church. A short time ago, the doctor called my friend at home and left a message on his voice mail castigating him for his unchristian lack of mercy and suggesting that this lawsuit is going to destroy my friend’s soul.

The doctor is not without some scriptural support for his position. The Apostle Paul in particular had some harsh things to say about lawsuits between members of the Church:

Dare any of you, having a matter against another, go to law before the unjust, and not before the saints? Do ye not know that the saints shall judge the world? and if the world shall be judged by you, are ye unworthy to judge the smallest matters? Know ye not that we shall judge angels? How much more things that pertain to this life? If ye have judgements of things pertain to this life, set them to judge who are least esteemed in the church. I speak to your shame. Is it so, that there is not a wise man among you? No not one that shall be able to judge between his brethren? But brother goeth to law against brother, and that before the unbelievers. Now therefore there is utterly a fault among you, because ye go to law one with another. (1 Cor. 6:1-7)

There was a time when Latter-day Saints took this counsel very seriously. Here is how it worked procedurally. Suppose that Brother Smith sued Brother Young in a secular court. Brother Young would then make a formal, written complaint to his bishop, accusing Brother Smith of “unchristian-like conduct for suing before the ungodly.� The Bishop would then convene a Bishop’s Court to look into the matter. Both brothers would be summoned to appear before the Bishop of pain of disfellowshipment from the Church. Rather than simply looking merely at whether or not Brother Smith had in fact sued Brother Young, the Bishop would resolve the underlying dispute and craft some sort of a remedy, which again would be imposed on pain of formal disfellowshipment from the Church. If Brother Young was at fault, then he would have to pay Brother Smith, even though Brother Smith would generally be liable to Brother Young for his legal fees, since Brother Smith should have gone to the Bishop in the first place. Either party could appeal to the Stake High Council and from there to the First Presidency. About the time of Lorenzo Snow, this practice began to fade. However, as late as the 1920s the Church was still printing complaint forms, which I have copies of, with which one could institute a proceeding against someone in a Bishop’s Court.

Fortunately for my profession, Mormons no longer make such extensive use of their court system. However, with the graceful departure from the stage of a neat institutional solution to the religious issues of litigation, things have gotten more complicated. Paul’s counsel above seems to rest on two principles that are in tension with one another. The first is that disputes between the saints ought to be handled internally because the saints have the competence to judge such things. The second is that we ought to exercise mercy and forbearance with one another’s faults. The first principle implies the legitimacy of seeking justice for wrongs, something that the second principle seems to strongly question.

I believe that it is unchristian to assert one’s full legal rights in every circumstance. If some magazine reprints material from my blog without permission, I am not going to haul them into court, even though I might be within my rights to do so under the copyright laws. I likewise hope to escape through someone’s mercy the full liabilty to which I may be subject under the libel laws, for what I may have written in intemperate moments. Yet at some point, I think that demanding one’s day in court is legitimate, and even virtuous. This formula, however, hardly provides much guidance.

Which returns me to my friend’s story. After listening to the doctor’s message on his answering machine, he forwarded it to his lawyer. Were I in his situation, I would have done exactly the same thing.

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38 Responses to In Defense of Suing Before the Ungodly

  1. Adam Greenwood on November 30, 2004 at 5:57 pm

    I note that it is also unchristian to demand that other people treat you with tolerance and forbearance when you’ve screwed up.

    I don’t think you’ve quite captured the immorality of suing before the ungodly. It’s not just that secular lawsuits show an unwillingness to forgive and church lawsuits don’t. It’s that when one sues in the secular arena one is saying that the secular account of rights and wrongs has primacy over the religious one. If even relations between the Saints are to be rendered unto Ceasar, than what’s left?

    That said, I’d like to see the expression on the poor Bishop’s face whom somebody has just asked to resolve their medical malpractice dispute.

  2. Kaimi on November 30, 2004 at 5:58 pm

    Nate,

    How is a Bishop’s court different from binding arbitration? Can early church members be seen as having signed on to an ADR clause by virtue of their church membership?

  3. Kaimi on November 30, 2004 at 6:01 pm

    Adam,

    Med-mal is just the tip of the iceberg — can you imagine the poor Bishop who is asked to judge on a claim of securities fraud under the blue-sky laws? Or an antitrust claim? Many of these sorts of cases can’t be answered quickly, and it requires extensive fact discovery to decide them. The paper discovery alone in a big case can be millions of pages, plus depositions, and a whole briefing schedule. I can just see someone placing a call to the bishop to resolve an objection at a deposition . . .

  4. Derek on November 30, 2004 at 6:05 pm

    The suer could probably save his salvation by suing the insurance company instead of the doctor.

  5. Nate Oman on November 30, 2004 at 6:07 pm

    Kaimi: As you probably know, until very recently there was a very strong presumption against binding arbitration in the law courts. A contract to abritrate was generally held to be void as contrary to public policy. It took the passage of the Federal Abritration Act to get the federal courts to finally take such agreements seriously. Also, since the Church was a seperate legal entity, there are privity problems with characterizing membership as a contract to abitrate between members. In the 19th century, the territorial courts tended to be hostile to Church settlements and would undo them if they got their hands on them. In large part I think that this was political. The territorial courts were staffed with Gentile federal appointees who say the Church court system as yet another example of Mormon arrogance and contempt for the law. In a sense, they were right!

  6. David King Landrith on November 30, 2004 at 6:09 pm

    Some laws, I think, are clearly immoral. I think that as a Christian, we are obliged not to seek legal remedies that invoke such laws.

    Kaimi: How is a Bishop’s court different from binding arbitration? Can early church members be seen as having signed on to an ADR clause by virtue of their church membership?

    Bishops are obliged to believe that there is a right answer, while the arbiter is only obliged to believe that there are wrong ones.

  7. Adam Greenwood on November 30, 2004 at 6:10 pm

    Clearly we need a dollar limit on lawsuits, Kaimi. If damages sought are under $50k you have to go to the Bishop. Otherwise, the ungodly will be permitted to judge.

  8. Tuan Samahon on November 30, 2004 at 6:53 pm

    Maybe the plaintiff should forum shop for an LDS federal or state judge!! Provided both stipulate to a bench trial, no worries about Paul’s dictum of going “to law before the unjust, and not before the saints.” Now appeal could be another matter…

  9. Rob Briggs on November 30, 2004 at 6:54 pm

    Nate, another thoughtful post.

    I think you’re right that the “old way” recognized the grievance — & recognized the importance of addressing the grievance — and sought some remedy which, as Kaimi noted, resembled modern arbitration or mediation (ADR – alternative dispute resolution). The new way — which the doctor you cite would like — simply says that we ought to always suck it up, forget our grievances no matter how meritorious and get on with life. Oh, and for hellsakes, don’t increase my malpractice premiums.

    And I’m usually fine with that. I’ve practiced for 25 years and have prosecuted and defended many civil lawsuits, but I’ve never prosecuted a case in my own name. I find making peace with my neighbor at the first opportunity to be good policy.

    Except one thing. Except where it is vitally necessary to DETER UNLAWFUL CONDUCT. Deterring unlawful conduct is a vital role which the civil & criminal law perform and that goal is not furthered if we always suck it up and forgive and forget. Jesus didn’t say never have a grievance with your neighbor. He said settle your grievances quickly and reasonably.

    When the doctor crewed out your friend, did BRO Doctor happen to transmit a fair settlement offer? I didn’t think so.

  10. Kaimi on November 30, 2004 at 6:58 pm

    Nate,

    The doctor friend, in fighting the suit, is clearly not obeying scriptural mandate himself. After all:

    Matthew 5:40:

    And if any man will sue thee at the law, and take away thy coat, let him have thy cloke also.

    So the doctor should offer a generous settlement to your friend — or _he_ is acting unchristianly.

  11. Pete on November 30, 2004 at 7:14 pm

    Nate:

    As you may remember, even prior to calling upon the bishop for arbitration “plaintiffs” were instructed to “go first to your brother with another brother” to see if the dispute could be resolved–sort of a face to face demand letter with prayer and the priesthood. (Did your friend take his home teacher to visit his doctor before suing?)

    It seems that the end goal of the church system was the resolution of disputes based on Christian principles (love thy neighbor, forgiveness, etc.) instead of mano a mano combat. Even church arbitration was a last resort administered under priesthood guidance for the primary purpose of reconciling brothers (and sisters?) estranged from each other. I haven’t heard much from the brethren on this topic lately, but I suspect that they would also discourage much of the litigation that is commonplace today. Surely God does not smile on the disputations among us.

  12. Nate Oman on November 30, 2004 at 9:40 pm

    Tuan! I didn’t know that you read T&S. I will have to stop saying stupid things in public! Welcome!

  13. Susan on November 30, 2004 at 10:08 pm

    Nice piece of writing, Nate.

  14. Joel D. on November 30, 2004 at 10:19 pm

    Did the doctor make any type of settlement offer? Did he seem concerned at all about the pain he accidentally caused your friend’s wife? If not, this doctor certainly doesn’t seem like much of a Saint and I have far less sympathy for his situation. If he did attempt to settle this and your friend insisted on taking it to court, maybe the doctor is more justified in his “righteous” indignation (but I doubt it).

  15. John Morley on November 30, 2004 at 10:48 pm

    I’m with Adam, the passage in Corinthians on its face suggests to me not that suing is inherently unchristian, but that suing in unchristian courts is unchristian.

    I doubt, though, whether Paul’s reasoning still applies in our modern “malum prohibitum” regulation-heavy society. Paul’s reasoning centers on the saints’ peculiar competence in judging claims. After all, he says, since the saints are going to judge angels, why aren’t they expert enough to judge each other? I would argue, though, that the saints’ expertise is limited to disputes implicating religious and moral questions, because those are the only issues on which the saints have peculiar expertise. When litigation implicates non-religious issues like prevailing medical practice standards, adequate disclosure of facts relating to securities issues or the amount of acceptable pollution coming out of factory pipes, the saints have no more expertise than the civil courts. Under Paul’s reasoning, saints embroiled in these kinds of disputes have no obligation to turn to religious courts.

    The passage in Corinthians aside, I think there are good secular explanations for the early Utah religious courts. They obviously did a pretty good job of fostering social and economic cohesiveness. Since that’s no longer possible, they’re obviously no longer necessary.

  16. Dave on December 1, 2004 at 1:30 am

    Nate, consider the general question “Where could two disagreeing Mormons get the most just resolution of their dispute?” In the 19th century, that might very well have been before their Bishop, but modernly secular courts seem to do a better job dispensing justice evenhandedly than they once did. So if Paul’s counsel seems disfavored at the present time, that may simply be a reflection of a fairer secular court system (although not everyone would agree with that charitable view of modern courts).

    There’s also an inherent problem with the “keep disputes in-house” rule: it favors dishonest Mormons, who would profit the most from the rule as they are the ones most likely to be hauled into secular court were that an option. Furthermore, while a church court might levy fines or other punishment on rank-and-file Mormon wrongdoers, one might doubt whether a church court would take such action against a senior Mormon leader. Hence, of the (hopefully small) set of dishonest Mormons who would profit from the rule, dishonest Mormon leaders would profit the most. This perhaps suggests another reason the rule was dropped.

  17. Mephibosheth on December 1, 2004 at 2:26 am

    Doctors train longer and harder than any other profession, and dedicate their entire lives to helping people. Their salaries are paltry with respect to the amount of time and work they have to put in. But they are also human, and they make mistakes.

    Did the doctor deliberately damage his patient’s spine with a needle? Will a settlement lessen the amount of pain she feels? Will it make her feel better to know that his professional life will be damaged because he made a mistake? Then what is the point of going to court?

    Lawyers are ruining medicine.

  18. Clark on December 1, 2004 at 2:53 am

    Everyone makes mistakes, but then it is our duty when we make a mistake to make amends. If I accidentally break a window I fix the window. If I refuse to fix the window then doesn’t the window owner have a right to seek redress? Obviously the details in this case aren’t clear, but exactly what has the doctor done to make amends? What if the doctor and the victim don’t agree on what fair amends ought to be? It seems that it is those cases that are appropriate for the courts.

  19. Mephibosheth on December 1, 2004 at 4:33 am

    That window analogy is a horrible oversimplification. Unlike a broken window, a spine cannot be mended. You cannot put a price on someone’s pain and suffering (although tort lawyers often place it in the tens or hundreds of millions). There are some calculable economic costs –for example, pain management medication or treatment for the rest of the patient’s life, but that’s what insurance is for.

    When amends cannot be made, what is wrong with forgiving, forgetting, and leaving adjudication to a Higher Authority?

    I see nothing beneficial coming from a lawsuit. The patient’s life has taken an unfortunate turn for the worse, so the hapless doctor who happened to make a human error also needs to suffer for the rest of his professional life. Making one miserable like unto themselves, I suppose.

    Doesn’t sound like the Christian way to me.

  20. Jared on December 1, 2004 at 5:14 am

    Meph,

    Doctor’s salaries are paltry? Talk about a gross oversimplification. Which doctors are you referring to exactly? The last time I went to the hospital the doctor’s parking spaces were filled with BMWs, Mercedes, etc. They seem to be doing O.K.

    Also, the issue is not whether the doctor intended to inflict harm; it is rather whether he exercised the correct degree of care that would be typical of medical professionals in his community.

    Sure everyone makes mistakes, but if doctors could make mistakes with impunity because its somehow immoral to sue someone paid to take care of people then what incentive would the doctor have to take care?

    If you want to seriously talk about tort reform, such as pain and suffering caps, then we may find some common ground, but unlike you I do not trust doctors to exercise proper care without some incentives.

  21. Mephibosheth on December 1, 2004 at 6:14 am

    Notice I said “paltry with respect to time and effort.” Greedy people do not go into medicine, they go into business or law –it takes a lot less time and effort to reap comparable fiscal rewards. Because of the rigorous training regimen, the vast majority of those in it for the wrong reasons are weeded out.

    If the concern is really about maintaining a level of care, and the patient really believes that the doctor is doing more harm than good, then a better system would involve some kind of review board that periodically evaluated physicians’ performance (by the way, these boards already exist).

    But no, the lawyer is going to play the angry answering machine recording to a jury composed of welfare recipients who do not have the background to understand the medicinal aspects of the case. The plaintiff will get a ton of money, the doctor’s malpractice insurance will go up even more, he may lose his livelihood, and the patient is already injured. What does this accomplish over a review system? Nothing, and that’s why I feel the lawsuit is more out of spite than for quality control of the healthcare system.

    But in a way you’re right, it IS about maintaining a certain level of care. That’s why doctors are such an easy target –they’re supposed to care. A lawyer can choose whether or not to take on a particular case, and if they’re going to have to spend $900,000 for expert witnesses and other preparations just to take the case to court, if the projected payoff is much lower they’re not going to go through with it! It doesn’t matter if plaintiff has a legitimate claim, a lawyer does not have to care. The lawyer can walk away, and continue to practice law.

    But a doctor couldn’t very easily walk away from a difficult or unprofitable case. And he can’t make any mistakes, either. Damned if he does, damned if he doesn’t.

  22. David King Landrith on December 1, 2004 at 8:45 am

    Jared: Sure everyone makes mistakes, but if doctors could make mistakes with impunity because its somehow immoral to sue someone paid to take care of people then what incentive would the doctor have to take care?

    Recasting malpractice litigation as the marketplace at work is plain silly. The potential threat of malpractice suits (as we know them today) does not make better doctors. And nobody really thought that they were terribly important until lawyers figured out that they could make a bundle on them.

    Bad things happen, and the universe is a rough place. Trying to assign liability for it all is infantile—not to mention anachronistic.

  23. Kaimi on December 1, 2004 at 8:53 am

    Meph,

    So because we can’t accurately compensate for the harm, the victim receives nothing? That seems wrong-headed to me. If you harm a piece of physical property, you’ll have to pay for it. But if you do the much greater wrong of harming someone’s body, peace, and perhaps livelihood, you pay nothing.

    Harm my book: Pay $20.
    Harm my car: Pay $5000.
    Harm my spinal cord: Pay nothing.

  24. David King Landrith on December 1, 2004 at 9:15 am

    Kaimi: So because we can’t accurately compensate for the harm, the victim receives nothing?

    I think it’s more like this: Since the harm is incalculable, the question of compensation never meaningfully arises.

  25. Nate Oman on December 1, 2004 at 10:15 am

    Oh good! An argument about tort law! This is what T&S is really supposed to be about!!

    It seems that we have three objections to suing the doctor:

    1. He is a virtuous guy and ought not to be punished.
    2. The legal system cannot compensate the victim.
    3. Suing doctors screws up medicine by increasing malpractice premiums, etc. etc.

    As to (1) it offers an interesting theory of adjudication, but it is one that our law has basically rejected for nigh on ten centuries. Being a bad person does not subject you to legal liability and being a good person is not a defense. The law looks not to the heart but to one’s actions. (If Val Ricks or some other legal historian is reading this he is going to start waving his arms at this point and start talking about equity courts. Do not listen to him!)

    (2) is not precisely true. The victim will have lots of concrete and easily measured expenses, e.g. doctors’ bills, lost wages, etc. Pain and suffering is admittedly a problem, but I see no reason to say that we should provide no compensation simply because we cannot provide perfect compensation.

    (3) is more difficult. At the end of the day, I am probably as sympathetic to ATLA bashing as the next guy. However, there are ways around these issues short of the end of liability. Adopting the English system of court-appointed expert witnesses would be a good first step.

    Finally, it is worth pointing out that doctors actually enjoy greater legal limitations on liability than do other people. If I wreck my car and break your arm, your claim against me will win or lose based on whether I exercised the care expected of a reasonable person in my situation. If I am a doctor and I break your arm as part of some treatment, your claim against me will win or lose based on whether I conformed with the professional standards of my particular region. In other words, ordinary people get their behavior measured against an abstract and universal standard of care. In contrast, doctors simply have to be doing as good as the other doctors in their building. No more nor less. If a doctor in Hicksville is incompetent according to the standards of the Mayo clinic he is home free so long as the other doctors in Hickville are equally incompent.

    Finally, I love this statement:

    “Bad things happen, and the universe is a rough place. Trying to assign liability for it all is infantile—not to mention anachronistic. ”

    Here in two simple sentences is Oliver Wendell Holmes’s entire theory of civil liability!!

  26. XON on December 1, 2004 at 10:30 am

    I hesitate to point out that at least part of what is going on in this thread is a spirited defense of abandoning the revelatory for the rational. I think Dave’s comment pointed out the most relevant issue as to the reasons for the evolution, but even that doesn’t alleviate the sad feeling I get when I think about the two potential histories presented by Nate’s question: The one we have, and the one we might have had where the Saints continued to live by revelation in all things, and dealt with the consequences by seeking and receiving more revelation.

    So many of the other posts are defenses of either the legal or medical professions, which are, if we are all honest with ourselves (myself documentably included) mistresses (with all the connotations of that term) to our professions of Christianity, and Sainthood.

    When I think of all the things the Saints *haven’t* accomplished over the past century or so, I can’t help wondering if that’s because we are happily meandering along without the real, life-or-death, or at least livelihood and status challenges that the church court system would have required of us. I think we might all be different people toward the latter parts of our lives if we had to sit on the High Councils and Bishoprics that had to decide these issues, or have and Enos-like wrestle with our mortal to understand and accept the truly revealed (sop, again, to Dave’s very valid point) judgements. And the Church would certainly be different.

  27. Jon Croasmun on December 1, 2004 at 11:23 am

    This is an interesting point you bring up Nate. It brings a couple of questions to my mind –

    In this practice of having Bishops be the judges what did the church do if the church we to be the plaintiff in a lawsuit. In present day if this practice of going before the church court were to be followed, how would the church resolve disputes against contractors, bad land deals, or any myriad of other suits that they bring? How did they resolve conflicts of interest in the past? If I were a bishop and presented with Dallan Oaks sitting in my office representing the church in a land deal gone bad, and Brother Jones who owns the land and disputes his contract to the church, I would feel biased towards ruling in favor of the apostle sitting on the other side of my desk. I would probably start the meeting by offering my chair to Elder Oaks. Is there any history you are aware of in which the church acted as a party to the case? If so did they ever lose?

    Along these same lines how does this change in church “policy” reflect on the paralleled change in our moral standards. In a recent priesthood meeting in my stake, our stake president talked about how the church as a whole is about 30 years behind the rest of the world in moral decay. Is this a bad sign that the saints have moved away from “internal” dispute resolution, or is it just a change in the social culture of the world?

    And my last point, one obvious reason for the change is that many church members may not care if the church does discipline them, and in fact would prefer disfellowship over paying $500 to his neighbor for borrowing his lawn-mower and running it over with his truck.

  28. Mark B on December 1, 2004 at 11:37 am

    The argument about recovery in tort reminds me of a piece in the NY Times a few days back about a settlement in the ConEd electrically charged manhole cover case.

    The parents of the victim, who was unmarried and childless, sued ConEd, which was running 440 volts into the manhole cover, making it one of the hotter properties on the Lower East Side. The settlement, if I remember correctly, was $7.5 million, with some of that pledged by the parents to some sort of do-gooder efforts by ConEd. I suppose the other $6.5 million will go to a nice apartment on Central Park West, or a condo in Vail, or that around-the-world cruise on the Queen Mary 2, or some other worthy purpose.

    But, why? Where is the parents’ economic loss? Their daughter wasn’t supporting them, or anybody besides herself. The article mentioned the parents’ occupations, and one could infer that it was unlikely that the parents would ever need to rely on her for support.

    The victim did presumably suffer pain at the time of the accident, but that came to a merciful and speedy end. Why should our legal system result in the payment of such a huge sum when there was no economic loss? Will it make ConEd more careful? Wasn’t the publicity in the local media enough to cause them to take the steps necessary to fix any other malfunctioning manholes? Wouldn’t the company and the public be better served if the whole amount went to a fund that ConEd was required to spend in inspection of and remediation of manhole cover problems?

    Instead, the parents, who admittedly suffered the tragic loss of their daughter, have just won litigation lotto.

    As the slimy NY lottery ads used to say, “Hey. You never know!”

  29. Ian R on December 1, 2004 at 2:25 pm

    If this kind of fodder is what Nate means when he talks about “Mormon Legal Studies”, then I am very much in favor of it. Good stuff. Let me know when the journal is incorporated so I can get a deal on a lifetime subscription.

  30. greenfrog on December 1, 2004 at 5:53 pm

    David King Landreth disparaged market theory as follows: [i]Recasting malpractice litigation as the marketplace at work is plain silly. The potential threat of malpractice suits (as we know them today) does not make better doctors. [/i]

    Um. Sure it does, but you might not be looking in the right direction to see why. What effects do malpractice suits have? Several, but one important one is that they make medical practitioners financially invested in not losing a med mal case. What effects does that interest have? Again, several, but an important one for these purposes is that it makes potential future medical practitioners seek better training than they might otherwise have sought without the personal financial threat for being stupider or less skilled than their area’s average doctor. Why? Because it’s in the doc’s personal, financial best interest to do so. And, like it or not, people often pay attention to such things. So when a suitably inspired future doc picks a med school to attend, s/he might prefer to spend a little more to go to Columbia than to save a little more (in the short term) by attending med school on a Carribean island.

    (For laughs, a medical examiner probably has the lowest malpractice premiums around, right? I did a quick google on “cheapest tuition medical school” and found this gem in a FAQ on being a medical examiner: Medical school is an easy choice: go to the cheapest one you can get into. )

    So I do think that those damned market effects happen even in response to unsavory med mal suits. After all, how could they not? Economics, after all, is simply a story about the way people seek their (usually pecuniary) own best interests. Are there other incentives for conduct? Of course. Do those other incentives more than offset personal pecuniary interest? In my experience, not typically, no.

    And for State Boards of Medical Review? In my limited practice before them, they tend to take action only when unsuspecting patients have died. Is that the only relevant standard of care we should be looking at?

    Bad things happen, and the universe is a rough place. Trying to assign liability for it all is infantile—not to mention anachronistic.

    Good line for self-defense at the final judgment bar. “Hey, life’s a b***h and then you die! Why’re you looking at me?”

  31. clark on December 1, 2004 at 6:17 pm

    I think the issue isn’t whether malpractice has an effect, but rather what kind of effect it has. Further the effect it has will depend upon the culture one finds it in. I suspect that malpractice in the US and malpractice in say Canada function quite differently – partially because of the safety net in Canada rending lawsuits less necessary but partially because of the way the medical system in Canada is structured.

    Of course many doctors now won’t serve you unless you sign an arbitrary agreement. I signed it, simply because the doctors in question were highly recommended. But I remain worried because of the limitations on discovery when under arbitration as opposed to a real lawsuit.

  32. clark on December 1, 2004 at 6:22 pm

    Just an other quick comment since my window analogy got attacked. I think the issue isn’t whether making amends can be done by making things as if events never transpired. But, like Kaimi pointed out, the idea that one therefore ought not make any amends is quite hard to stomach.

    The appeal to forgiveness is an interesting one. It really ends up being tied to the mercy vs. justice opposition that the Book of Mormon focuses in on so ofthen. We ought to forgive and provide mercy, but at the same time we can’t let mercy rob justice.

  33. clark on December 1, 2004 at 6:28 pm

    One last question. Back in the old church courts system of the 19th century, my impression from various histories was that there were many problems. One was an old boys network due to people being in the leadership class and protecting their own. Further there wasn’t a diversity of judges. You typically had a Bishop with tremendous power who might remain judge for decades. The last problem was that of discovery, which I’m not sure was ever worked out well. (Of course in the 19th century that was also less of an issue)

    Not that these are inherent problems of the system and may have been more due to the rough and tumble world of the west along with the political conflict between Gentiles and Mormons.

    I wonder if Nate has any thoughts on this though.

  34. MDS on December 1, 2004 at 7:07 pm

    This reminds me somewhat of reading court decisions upholding “arbitration” proceedings by a Jewish Bet Din back in Clark Freshman’s arbitration class. See, e.g., Blitz v. Beth Isaac Adas Israel Congregation, 720 A.2d 912 (Md. 1998).

    One thought for an area of inquiry: Today’s court decisions blessing the use of arbitration and other means of alternative dispute resolution still require that the rules of the forum provide the participants with some general form of due process, and many arbitration providers have drafted “due process protocols” that must be signed onto by the participants before the provider will render services or bless the proceeding. I don’t know enough about the Bishop’s Courts to know whether they would meet the due process requirements that are developing today, but it might be interesting to analyze.

  35. Mephibosheth on December 2, 2004 at 2:48 am

    Clark:

    Going back to the window analogy…

    If someone doesn’t like what I say during the town meeting and they break my window by throwing a brick through it, it is fully within my rights to haul their butt to court and make them pay out the nose.

    But when the same window is broken by a person helping me put in an air conditioner, I’m less inclined to sue. I know they didn’t do it on purpose and they were only trying to help, so I don’t file suit. If I just let it slide, is this a case of mercy robbing justice?

    The window-breaker’s motive makes a big difference. But we are under a charge to ‘resist not evil’ (Matt 5:39), and in BOTH situations, turning the other cheek would be a very noble thing to do. So I just deal with the broken window. Or car. Or spine.

    I know that there are people who go around breaking windows/cars/spines regularly and recklessly. I also hope that they live far from me and don’t have access to sharp objects, but I’m also pretty sure that in most cases they didn’t make it through 4 years of college, 4 years of medical school, and 3-7 years of residency.

  36. Clark on December 2, 2004 at 1:48 pm

    There is a difference though between someone helping me while I direct them and my being in a more passive position. For instance if I hire a person to mow my lawn and he destroys my sprinkler system, I’d expect him to fix the problem. There is a huge difference based upon who is in charge.

    Now if I were in charge of my medical care I think you’d have a point. Since I am typically at the will of experts I simply have to put faith in, I don’t think you do.

    Regarding schooling, I’m not quite sure of the relevancy. The problem is that they were hired to do a job and screwed things up. Part of being professional is repairing ones mistakes. That’s justice. What you seem to be trying to do is say it isn’t really just to expect professionals to do their job.

  37. Curtis Nordstrom on December 2, 2004 at 4:48 pm

    Fascinating post. I can’t help but wonder whether or not the doc in Nate’s vignette ever apologized for his error, before taking the liberty of damning them, I mean. It may seem like a small thing, but maybe it isn’t? This article

    http://www.nylawyer.com/news/04/11/111204j.html

    points out that patients may be less likely to pursue a lawsuit if the physician… brace yourself… apologizes and explains his/her mistake. What a novel concept! (And, I might add, a basic Christian one, to boot…)

    As a student physician, myself, I see colleagues all the time who I know will be perceived as uncaring doctors, even if they aren’t. Others, frankly, really _don’t_ seem to care that much about patients, as odd as that may seem. They will do their part to perpetuate the current mess that is med-mal, I fear.

    The medical profession has a glut of egos to begin with, and medicine hasn’t exactly always had a bang-up history of providing compassionate care, either. I have plenty of classmates who are whiz kids at biochem, but I don’t want them treating _my_ kid when they graduate.

    To err is human… to admit it and apologize might keep your butt out of court and your malpractice premiums down a mite.

  38. Curtis Nordstrom on December 2, 2004 at 4:51 pm

    Fascinating post. I can’t help but wonder whether or not the doc in Nate’s vignette ever apologized for his error, before taking the liberty of damning them, I mean. It may seem like a small thing, but maybe it isn’t? This article

    http://www.nylawyer.com/news/04/11/111204j.html

    points out that patients may be less likely to pursue a lawsuit if the physician… brace yourself… apologizes and explains his/her mistake. What a novel concept! (And, I might add, a basic Christian one, to boot…)

    As a student physician, myself, I see colleagues all the time who I know will be perceived as uncaring doctors, even if they aren’t. Others, frankly, really _don’t_ seem to care that much about patients, as odd as that may seem. They will do their part to perpetuate the current mess that is med-mal, I fear.

    The medical profession has a glut of egos to begin with, and medicine hasn’t exactly always had a bang-up history of providing compassionate care, either. I have plenty of classmates who are whiz kids at biochem, but I don’t want them treating _my_ kid when they graduate.

    To err is human… to admit it and apologize might keep your butt out of court and your malpractice premiums down a mite.