Though print stories I saw about Kucinich were short and matter-of-fact, the television clips included open ridicule. Taking a shot at Kucinich is undoubtedly tempting for the corporate media since he is a huge outlier among high-office elected officials in America – there is pretty much no other major official who is close to him on the populist left (maybe Bernie Sanders). Thus he has pushed hard for some very unpopular positions, like “do not start a land war in Asia” (you might recall that opposing the wars was a very unpopular position before everyone else caught on). [Disclosure: I campaigned for him, a rare fellow libertarian left vegan (I used to be) from Ohio and back in the days I was at the higher end of my widely changing income I was at the “have cocktails with the candidate and hand-signed mementos” level.]
What you would not learn from the giggling talking heads was that biting into the olive pit, hidden in a wrap sandwich where it was easy to bit on without warning, caused so much damage that Kucinich had to endure multiple surgeries and suffered a lot of pain and loss of functionality. I suspect most of us who are not impoverished would pay a year’s salary to avoid what he went through, and the amount of the suit ($150,000) was less than what he earns in a year, though it sounds like a large number when described without the context of the injury’s severity.
Similarly, you have probably heard of the seven figure judgment awarded against McDonalds for someone getting burned by a cup of their coffee. The new movie sets the record straight on that one, in the context of a polemic intended to push back against the conventional wisdom about such lawsuits, which its creators characterize as being a concerted campaign by corporations to create scorn and thus increase support for protecting them from further lawsuits. (For more about the movie from that perspective, there is a series of stories from the anti-corporate media here (scroll down past the video window to find transcripts).) To briefly correct the story about the coffee: It was not a case of a driver taking the cup and spilling it on herself, as widely reported. Rather she was a passenger in a parked vehicle, holding the cup between her legs, and the claim was that the styrofoam cup just collapsed (the last part is hard to verify, of course). The injuries were so bad that they required surgery and were reported to have substantially ruined her life.
Yet the family merely asked McDonalds to cover their out-of-pocket medical expenses (recall that this is in medical-financing-backward America), just like a homeowner’s insurance policy might provide such coverage if this happened at a private home. When McDonalds refused, the family went to court, still seeking a fairly modest sum. At trial it came out that McDonalds intentionally keeps its coffee at an extremely high temperature, far hotter than coffee would normally be served, because it saves them money, and that hundreds of people had suffered medical-treatment-level injuries from it. The judge and jury were so incensed by what they learned that they awarded over $2 million in punitive damages, though the plaintiff probably only collected a small fraction of this in the final (secret) settlement. That final outcome is typical for lawsuits like this; even if the consumers win a big award that makes the news, they usually have to negotiate for a much more modest sum in exchange for the company not tying up the finalization of the award with further legal action that can last longer than the person might live.
Another case I am reminded of, which was a favorite example 20 years ago, was someone who successfully sued the owner of a phone booth when he was struck by a car while using it. (For my younger readers, a phone booth is like a mobile phone, except that it is bolted to a particular piece of tarmac and a lot cheaper to use.) It sounds utterly absurd until the fact – not mentioned by those delighting in the example, of course – that this was the second time such a thing had happened in that particular phone booth, which suffered from both dangerous placement and a door that was difficult to open to get away from oncoming traffic.
Why are the Kucinich and Hot Coffee stories important health news? Because they reflect an important part of the U.S. regulatory system for health risks. I believe almost half of my readers are from the E.U., and many of you grouse about the increasing morass of regulations there. In the U.S. we have fewer command-and-control regulations and depend on the threat of lawsuits to give companies the incentive to police themselves. This is explicitly recognized as an important part of the regulatory regime by those who study law and economics, though probably not by most people. In theory it has big advantages: Companies are theoretically in a better position to keep track of possible hazards and, because they are creating the hazards, to figure out the best way to reduce them. It is flexible, forcing companies to worry about creating new hazards that hurt people even if the regulators have not caught up with the situation. It is also accepted, as part of this theory, that the optimal number of bad outcomes is not zero, and sometimes it is more efficient to compensate the occasional victim rather than to engage in overly-expensive interventions to reduce the risk.
There is an endemic debate about doing something to stop “frivolous” lawsuits in the U.S., including Obama’s promise to reduce medical malpractice lawsuits in his State of the Union speech this week. It is important to realize that such lawsuits are an inherent part of consumer protection, and so this is really a call to reduce consumer protection regulation. There is no obvious way to get rid of genuinely frivolous suits without creating barriers to other suits that are useful contributions to regulation, especially since some of the apparently frivolous examples are really being misrepresented.
This does not mean that there are not frivolous lawsuits, and it certainly does not mean that the current system works as well as it might. The fact that some suits even need to be defended is indefensible (I have worked on several of those – for the defense, I would like to note). It is quite possible, for example, for someone to win a lawsuit even when ample science shows that there is almost no chance that the exposure in question caused the disease that is being attributed to it. There is also an inherent arbitrariness to it (e.g., how should the blame be shared between the company that serves dangerously hot coffee and the consumer who takes the inadvisable step of holding it between her legs?). As for medical malpractice, there is a lot damage done by bad medical practices, but it seems that consumer lawsuits do almost nothing to reduce most of the real errors and frequently punish providers for outcomes that were unfortunate but not caused by error. So the incentivization to do better work and get rid of practitioners who are incompetent is minimal.
A lot of news stories about consumer health lawsuits, like many news stories, focus on extreme cases and look for ways to make the story entertaining. Thus, the causal reader might think that a large fraction of lawsuits are silly. It is true that pretty much no one would have come up with the American liability system if tasked with creating a regulatory system, but that is what evolved and as with most evolved systems, mutation (radical change) is more likely to make things worse than better. But when you read a story about how we need to do something about the claimed excess of costly lawsuits, keep in mind that this is really saying that that we should reduce companies’ expenses at the cost of having less consumer protection. You may or may not agree that we should pursue such a change, but if you just read the news you probably would not even know that is what you were being asked to agree with.
[Update: After writing this, I learned that Kucinich’s lawsuit was settled (and he provided a lot more detail about it at that link) which is what typically happens. An incentive for food providers to take greater care with pits in hidden olives has been created, and instead of this cost of imposing such incentives being paid to the government or being a deadweight loss, it goes to compensate someone who was injured. Again, there is plenty wrong with the current system, but this is an example of what is right about it.]