(In)Juries, (In)Justice & (Il)Legal Blame: Tort Law as Melodrama - or is it Farce?

Abstract

A 1999 Institute of Medicine (IOM) report, To Err is Human: Building a Safer Health Care System, 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 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, who describes the dichotomy in his book, Legal Blame, published by the American Psychological Association in 2000. Instead of uncovering the systemic origins of accidents, personal injury litigation distorts accidents as not only 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.

The IOM report and, especially Legal Blame are analyzed in the article by O'Connell.