Moller, Sid L.

English

Mississippi College School of Law

Mississippi College Law Review Volume 12 Issue 1 Vol. 12 Iss. 1 Article 3 1992 Foreword Sid L. Moller Follow this and additional works at: https://dc.law.mc.edu/lawreview  Part of the Law Commons Custom Citation 12 Miss. C. L. Rev. 1 (1991-1992) This Comment is brought to you for free and open access by MC Law Digital Commons. It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact walter@mc.edu. MISSISSIPPI COLLEGELAW REVIEWFOREWORDSid L. Moller*... virtue must have the quality of aiming at the intermediate. I mean moral virtue;for it is this that is concerned with passions and actions, and in these there is excess,defect, and the intermediate. For instance, both fear and confidence and appetite andanger and pity and in general pleasure and pain may be felt both too much and toolittle, and in both cases not well; but to feel them at the right times, with reference tothe right objects, towards the right people, with the right motive and in the right way, iswhat is both intermediate and best, and this is characteristic of virtue.From Book II of Aristotle's Nicomachean Ethics.My father, a veteran of many labor contract negotiations, tells of a union offi-cial who would often make references to certain abstract and generally obscure"principles" which prevented the union from compromising its bargaining posi-tion. Once, on the occasion of rejecting the company's latest offer for a wage in-crease, he liberally employed his familiar rhetorical device. When pressed to bemore specific regarding the principle precluding union acquiescence, his responsewas, "What principle? I'd say about 15 cents an hour."In many different contexts, not only labor negotiations, the dollar-and-cents-variety of principal overshadows the principles at issue, and the "bottom line" of acontroversy is simply the bookkeeper's definition of that term. Concerns whichare not so obvious, and therefore less compelling because less obtrusive, are dis-counted if not completely ignored. And, not surprisingly, it can then at least ap-pear completely self-evident that the only analysis of real consequence is thatwhich involves money. Needed moderation and a sense of balance are lost in thecommotion.Such is the case with professional malpractice litigation. Professionals exposedto expanding theories of liability battle those who promote generous recoveries topersons supposedly victimized by professionals' wrongdoing. Each marches to asteady and monotonous beat, bent on getting or retaining, as the case may be, alarger piece of the pie. A fixation on divvying up the spoils portends other prob-* Associate Professor of Law, Mississippi College School of Law. B.A., Louisiana State University; M.I.L.R.,Cornell University; J.D., University of Wyoming.VOLUME 12 FALL 1991 ISSUE IMISSISSIPPI COLLEGE LA WREVIEWlems, however, because civil litigation can only divide, not enlarge, the pie. Whatfollows, then, is a contentious and seemingly endless dispute, maybe not for indi-vidual litigants but certainly for the participants in the aggregate. So long as thediscourse is dominated by such considerations, there will be a rather fundamentalpolarization of interests and an improbability of meaningful and lasting peace. In-stead, perhaps the best to be hoped for is an ongoing cold war; more likely, theuneasy truce will not hold at all, and the combatants will continue to devote sub-stantial amounts of time, energy and economic resources to waging and eventuallyescalating the war. In the process, one generation of professionals (especially doc-tors, and, to a lesser extent, virtually all other professionals) will perceive itselfunder siege and teach the next to revile attorneys and distrust the legal system.And, in like manner, self-interested segments of the legal community may neverconsider the option of beating certain of their swords into plowshares, even if thatwould be ultimately beneficial to the citizenry.A fresh and maybe even daring way of looking at professional malpractice dis-putes must be constructed, beginning with a recognition of the warped outlookbrought about by that singular focus on money which invariably reduces debate tothe lowest common denominator of our values. Because of its undeniable signifi-cance, money will of necessity always play a prominent role in this type of litiga-tion. But other vital factors are also involved, and they, too, need to be addressedand integrated into the formula for resolving professional malpractice cases. Tak-ing these additional factors into account should elevate the debate and help to cre-ate a methodology which is sounder, if only because it produces a strongerconsensus that justice is being rendered.Given human nature, one might question whether it is realistic to expect the re-pudiation of a single-minded focus on the pecuniary aspects of these cases. We canat least change the tenor of malpractice litigation by actively exploring the non-monetary issues presented by the controversies. Even modest steps in this direc-tion can avail much, because in addition to redefining the issues, shifting the focusmore to non-pecuniary concerns will also necessarily contribute to a more hu-mane perspective of the participants. When the primary considerations are finan-cial, deep-pocketed professionals are obviously seen as attractive defendants. Butlucre aside, they are also human beings who have much to lose from being sued.On the other hand, if pecuniary considerations do not dominate the controversy,professionals may more readily accept the fact that some injured patients, clients,parishioners, etc., have had their lives profoundly altered by the mistakes of theirprofessional colleagues. Such insights should lead to the recognition that, for bet-ter or worse, our legal system is the only mechanism by which these injured par-ties can obtain redress.Having said all this, and especially after having proclaimed the benefit of even"modest" efforts at redefining the issues, a thought or two on a possible reorienta-tion of perspective and modification of the system's handling of professional mal-practice cases is in order. In my mind, the discontent among participants inmalpractice cases, especially the professionals, has a great deal to do with the fact[Vol. 12:1FOREWORDthat non-lawyers tend to interpret determinations of civil liability as moral pro-nouncements. For many lay persons, the victor in a malpractice action has beenadjudicated as good, deserving, virtuous, blameless, or upright; the loser as bad,undeserving, corrupt, defective, or iniquitous. The rhetoric of closing argumentsnotwithstanding, for most judges, lawyers and others sophisticated in the legalprocess, dispensing justice in civil actions no longer resonates with such moralovertones. Thus, litigants and lawyers view the proceedings from fundamentallydifferent perspectives. Perhaps more significant is the fact that the decisions oftendo not correlate with the professional's own sense of right and wrong. We need tomore closely analyze the ramifications of these disparate views.Consider what is at stake for the defendant in a professional malpractice caseaside from money. We all know of the tendency of people to model their behavioragainst the backdrop of a personal sense of what is honorable. While a professionalmay be a member of the general populace, to a greater or lesser extent, his or herprimary frame of reference is the sub-culture of the profession. In this regard, nu-merous and varied influences -including one's education, formal and informalmentoring processes, hero worship, daily work activities, institutional norms,and associations with others engaged in a like calling -combine to shape an imageof "the right stuff' for that particular profession. Only the staunchest of renegades,and perhaps not even them if they truly remain "in" the profession, are able to re-frain from embracing certain fundamental aspects of the group's norms. Themodel citizen of a professional sub-culture, a conjectural embodiment of the ideal,provides a symbolic but nonetheless real standard by which members of the pro-fession measure themselves and evaluate their actions.Theoretically, the legal standards for imposing civil liability are not signifi-cantly divergent from the profession's own standards. In actuality, however, thestandards are quite different. Perhaps the divergence has always existed; but cer-tainly as the law of malpractice in past years has slipped from fault-based stand-ards to stricter forms of liability, the gap between the professional sub-culture'sstandards and the standards by which liability is imposed has widened. When aprofessional who is of the opinion that he or she is performing in accordance withthe norms of a relevant sub-culture is informed by the courts that such perform-ance is unacceptable, an incongruity is created. Thus a dissonant chord is struckwhich, as with music, sounds harsh and incomplete until resolved to a harmoniouschord.In attempting to resolve such dissonance, the professional has rather limited op-tions. He or she may become somewhat self-critical, even to the point of rejectingpreviously-held views regarding the acceptable norms of the profession. Alterna-tively, he or she may become disillusioned with the legal system and assume therole of either aggressive guerrilla or retiring exile. Whether active or passive intheir resistance, such disenfranchised professionals would probably agree that thesystem has been taken over by an evil, competing sub-culture (the lawyers). To theextent that my personal acquaintances are valid indicators, most professionals are1991lMISSISSIPPI COLLEGE LAW REVIEWindeed rather disillusioned by the perils of professional malpractice; few respondwith self-criticism and rejection of the profession's norms.One can empathize with professionals who perceive that activities acceptablewithin their own sub-culture are condemned by a legal system that plays by a dif-ferent and somewhat bewildering set of rules. But such empathy on this point mustnot prevent an honest appraisal of the contributions professionals themselvesmake to the shortcomings of our method of compensating victims of malpractice.We have recognized the need to protect the professional's sense of honor, but itmust also be said that honor or pride can be taken to excess, and that hubris, as theancient Greeks called it, also produces rather unpalatable fruit. Hubris among pro-fessionals does indeed tend to manifest itself in a somewhat revolting manner,when there is a refusal to acknowledge the responsibility of the relevant professionfor the mistakes of its practitioners.Simply stated, a particular profession must accept the frailties of humanity, itsown members included, and concede that reparations are warranted in some cir-cumstances for those victimized by the profession's failings. Perhaps few profes-sionals disagree with this statement in the abstract, but when it translates to thegoring of one's own ox in the form of a lawsuit or increased malpractice insurancepremiums, consensus soon fades. Because reparations cost money, where a mem-ber of the relevant profession is truly at fault, who should pay? Should the lossesbe absorbed by the victims themselves? Or, alternatively, should the victims besteered directly or indirectly to the public trough, and forced to become dependantupon government largesse for their maintenance and restoration? The obvious an-swer is that neither the victims nor the state should be responsible, but rather thosewho caused the harm, especially when one considers the fact that professionals areamong the most highly compensated members of our society.Where do these trails lead? Not only to the conclusion that change is needed,but also to the recognition that such change should include compromises and re-flect a spirit of moderation. Ideally, reform should effectuate a change from thepresent emphasis on pecuniary concerns, which is nothing short of extraordinary.It should also be predicated on a recognition of a professional's pride and sense ofhonor in his or her professional status, but not allow such pride to operate un-checked, thereby insulating the professional from civil liability when justice de-mands otherwise. In other words, what is needed is more of a sense of balance,calling to mind certain of Aristotle's thoughts defining moral virtue.To the extent that these reflections are indicative of beliefs held by many others,and not simply the idiosyncratic if not sentimental musings of the author, onemight anticipate attempts at reform which address the concerns raised herein. Pre-dicting the particulars of such reform is a precarious business, but I believe thatsome of the more general contours of future developments in this area of the lawhave already begun to emerge.First, in years to come, professional malpractice disputes will move out of thecourt system, as resolution of these cases is handed over to administrative deci-sionmakers. Such adjudicatory agencies will almost certainly include representa-[Vol. 12:1FOREWORDtive members of the profession over which they sit in judgment, so as to promoteconvergence of the profession's norms with the standards by which liability ismeasured. Secondly, I would anticipate that where it is feasible, no-fault schemeswill be implemented. For obvious reasons, such systems remove much of thestigma of liability for professionals. On the other hand, the profession remains re-sponsible with such systems for shouldering the burden of making reparations forits mistakes. Finally, as a consequence of the first two developments, claimant re-coveries will be increasingly uniform. This is the nature of an administrativebody, to standardize its product, as does any mass producer. It is also the quidproquo for no-fault, as typified by the worker's compensation model. In any event,the standardization of awards, which will also involve a minimization of the likeli-hood of outlandishly high recoveries and a probable reduction of the overall aver-age of awards, will result in a de-emphasis of pecuniary concerns.The somewhat quaint ring of the terms honor and hubris are enough to confirmthat they are not in vogue. And, perhaps other thoughts herein, such as those relat-ing to the need for virtue and balance, also appear a bit old-fashioned, or at leastout of place in a modern analysis of legal decisionmaking. But consider the revo-lutionary changes in the law relating to professional malpractice that have oc-curred over the past 50 or even 25 years. Most have been brought on bytumultuous changes in numerous areas, including technology, consumerism, thedelivery of legal services, and attitudes toward victim compensation. We can mostcertainly anticipate that none of these will stand still in the future. Consequently,as we contemplate repairs and alterations of the edifice, it is first necessary to ex-cavate down to a stable substratum and ground ourselves on those things that doremain constant. Some of the more consequential attributes of human character,like honor and hubris, seem to qualify in this regard, as does the need for a legalsystem which dispenses a brand of justice more compatible with the views of jus-tice embraced by those who come before it.1991]

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