"ACCOUNTABILITY" AND LEGAL RESPONSES TO MEDICAL ERROR
PROFESSOR EDWARD A. DAUER
[Author's note: The following is a tentative draft of the Introduction to a longer work, presently in process. I appreciate the opportunity to present these ideas at the Conference, and invite any and all suggestions and criticisms.]
It is increasingly clear that in many areas of personal conflict, and perhaps particularly so in the conflicts that follow medical mishap, claims of civil liability and their litigation end-points can be decidedly anti-therapeutic. Patients and their families often do not achieve what they say they are out to get, and physicians are brutalized no less. For a variety of reasons the effects of the traditional legal response are also ethically questionable - access to economic restoration, for example, is skewed against the older and the poorer; and there is often little correlation between the penalty imposed on the physician and the moral quality of their alleged wrongful act.
Nonetheless, in the American experience claims of just that sort abound; and because they do, efforts to develop ethically and therapeutically more satisfying alternatives have been hindered. Why, if its flaws are known, is there too much of this legal claiming?
In the present work I want to suggest that the cultural hegemony of the civil litigation process is a significant cause of excess litigiousness, not its product.
The vehicle for exploring this is the notion of "accountability."
But there is one point that should be cleared away first. Some who have followed the literature of law and medicine may find it surprising, that I should say that lawsuits are too frequent. The now-famous Harvard Medical Practice Study and its progeny demonstrated a decade ago that legal claims-making is actually far less frequent than the actual incidence of iatrogenic error could justify. Of the many people who are injured by medical negligence, only a minority ever bring a legal claim. My departure from those findings is not an empirical difference but a prescriptive one. Litigation and other forms of claims-making is too infrequent, as Brennan and his colleagues say it is, if we accept the purpose of the malpractice system to be that of compensating injured patients or their bereaved families. Then it is true that too few people who "deserve" compensation as measured by the system's own criteria, ever achieve it. While compensation is no doubt the stated central objective of the legal process, it is now also well understood that as a compensation device fault-based civil liability is deeply flawed. It is inefficient, simultaneously over-inclusive and under-inclusive. While the date of the fault-based malpractice system's demise cannot be predicted with any confidence, the fact of its eventual replacement does seem certain. But even if that is not to be, my difference from Brennan and others is only that we cannot in any prescriptive sense say that a process that does not achieve its own goals is too seldom employed, just by counting the occasions when it could have been used but was not.
Others might similarly suggest that the rate of litigation is too low, not too high, if we look seriously at the apparent lack of adequate deterrence. The Institute of Medicine in the United States has verified rates of medical error that would be intolerable in almost any other endeavor, and certainly in any activity whose mistakes can so easily result in excess injury and death. Again, however, the rate of litigation is too low only if we assume that deterrence of future error is a valid and a feasible assignment for the law of civil liability. Again, it seems not to be. The most recent data suggest robustly that the requisites of quality improvement in healthcare are almost all inconsistent with the major features of the civil litigation process. True, we do not know what would happen if all of civil liability were repealed. But we do know, to a fair degree of confidence, that within a range or more or less liability, adding more does not net us better or safer medical outcomes. My point again is a prescriptive one - using to almost any degree a tool that does not achieve its own stated goals means we may be using it too frequently even if the goal has yet to be reached.
Having thus dispensed in a single dash with the traditional wisdom of most of American tort law, I would repeat the claim: Measured by almost any criterion that is both significant and feasible, litigation in the aftermath of medical error is too frequent, too frequently antitherapeutic, and too often ethically questionable. So again the question - why do we have so damned much of such a damnable thing?
Hickson and Wright-Clayton at Vanderbilt University, and a host of others working in both the U.S. and the U.K., have explored the tangle of motivations that bring injured patients or their families to sue. Seldom is the motive money, though that is the only thing an American court can order. There are other well understood devices that could respond to those motivations even better than litigation does. Leonard Marcus and I, and many others, have explored mediation-based techniques that have both the potential - and, where tested, the effect - of responding to patients' needs in more authentic ways. Both bodies of work - the data about what patients want and the anecdotal experience of what these nontraditional alternatives can provide - are well known. That serves, however, only to make the question all the more perplexing.
In earlier work I suggested a number of possible answers, ranging from the philosophical to the banal, with a number of organizational explanations in between. At one end, for example, is the fact that the traditional legal process has encrusted itself with layers of professionals whose attentions are needed in order for it to work, and whose own livelihoods are served by the system's continuing to need their attentions. No-one, I hasten to add, needs to be self-consciously self-serving at the expense of the republic in order for this symbiotic arrangement to persist. To the contrary, most of those involved see themselves, correctly in the smaller view of things, as essential to the proper functioning of the systems' stated goals.
At the other end of the explanation continuum is my own speculation that fault-based litigation is the moral easy life. Plaintiffs cannot win unless defendants lose: For the patient to be right, the doctor must be wrong; and, even worse, vice-versa. In this process, which requires if it does not adore extreme polarization between the adversaries, right and wrong have square corners and clean lines. Neither side is asked to confront in an open way the moral ambiguity of its claim vis-a-vis the moral claims of the opponent. The whole is much simpler than that - we don't win unless you, the opponent, can be painted as deserving to lose. The moral inferiority of the opponent's position is taken as a given. We're good; you're bad. Rah! for our team; Boo! for your team; and neither side has to agonize over whether, in an ethical sense, it really ought to be the winner. Many of the alternative techniques, such as mediation, however, do threaten to inflict just that sort of discomfiting introspection. But to those enmeshed in it, the ethics of adversarial torts is comfortable. It's not hard to treat someone badly in a system that requires (and rewards) labeling others as unalloyed bad people.
To follow our curiosity about why the world does not conform to our expectations of it, my colleague Leonard Marcus and I conducted a series of focus group studies among typical participants in medical error events - lawyers on both sides, doctors, representatives of patients, and insurance company administrators. Within the bulk of the data we mined from that work, one statement struck me then, as it strikes me now, as being worthy of the deepest inspection. It was most clearly made as the plaint of a plaintiffs' lawyer:
"When someone is injured by a medical error, the legal system is the only place you can go to get accountability. That's what this is all about. Accountability."
Accountability
Suppose for a moment that that is right - that accountability is what lawsuits and liability and torts law are about. Suppose further that accountability is at least in substantial part an ethical value. If that is so and if lawsuits are as ineffective (or unnecessary) in achieving accountability as they are in achieving compensation and as they are in fostering quality improvement, then we could conclude from yet another standpoint - the ethical - that the incidence of resort to law may not be worth its costs.
That is the burden of the present paper. In it I wish to explore what accountability means; and how it can be gained; and whether the traditional, adversarial litigation system with what has been called its psychological brutality is a decent or even a useful way to achieve it. It will be no surprise, from the tenor of my phrases thus far, that I suspect it is not. And if that is so, we may have seen through one more lens why the incidence of litigation persists perversely in being too high.
The inquiry begins by asking what accountability means; and what people who claim they want it want. Even the most casual philology suggests it is a word of many meanings, having in common the elements that the one who seeks it likely feels themself wronged by the one from whom it is sought. A quick romp through the literatures of psychology and philosophy and (to a lesser extent) political science showed this to be true. Accountability means lots of different things.
Lawyers are nothing, however, if they are not trained taxonomists, classifying the richness of human behavior into a few easily manageable categories of things. Thus I see the meanings of accountability in only four categories: Sanction, Correction, Restoration, and Communication.
Sanction
People who do bad things should be punished. The reasons for sanction as accountability are in turn various. Punishment serves as vengeance, as expression of outrage personal or social, as moral desert, as restoration of the equilibrium of good and evil that was upset by the doing of the bad act. The effect of all of these is the same: Punishment means inflicting harm on a wrongdoer even when its infliction does not in any direct and objective way benefit the victim. Victims of medical negligence articulate the value of sanction with some frequency: "I want that doctor's license revoked. His stupidity blinded my baby while he gets to drive home in his Mercedes. That is just unfair."
Restoration
In contrast to Sanction, which imposes a loss on the wrongdoer without necessarily achieving a gain for the victim, Restoration as accountability focuses on compensation for the victim with only a secondary concern for its impact on the wrongdoer. "He messed up and now I have to pay all these extra costs, and I've lost income to boot. It was his fault, and my loss, so he has to pay me."
Correction
Wrongful behavior results in social (or moral or personal) loss. To avoid those losses in the future requires preventing the wrongful behavior. Someone who did the bad deed once might just do it again, unless they can be trained otherwise. Meeting bad acts with swift punishment should do the trick. Indeed, it would even be good for the infliction to be public. Behead one knave in the public square for disrespect toward the Crown, and the whole town might be more respectful in the future. Accountability of this sort changes (if it doesn't kill) the wrongdoer; the threat of it guides the behavior of everyone else; and holding accountable today's wrongdoer (even if it does kill him) seems like a just way to make real the threat of the same to others.
Communication
This fourth aspect of accountability is at once the most difficult to define and the most interesting. It includes such familiar phrases as "You owe me an explanation." and "Come clean." and "You let me down; come forward and 'fess up." and "take responsibility." Common to all is the idea of disclosure and communication, and the most frequent contexts in which the concern arises are those in which one person has trusted or depended upon another. Politicians are often "held accountable" in this way, as are employees, and, notably, professionals who have held themselves out as caring as much for us as for themselves. The desire for accountability in the classic hit-and-run, or in a fraud committed by a total stranger, is seldom of this fourth type. But it is frequently this type of accountability that attends a breach of faith or an injury caused by the lack of care of one in whom we have placed our trust. That person is not allowed simply to provide restoration or to suffer a flogging stoically. Punishment doesn't quite do it. In these cases we demand something more - the perpetrator has to face those who have been let down and explain themself.
A number of recent events in the United States illustrate these concepts nicely: The UCLA "body parts" event, the scandal involving the charity United Way, and the convening of America's "911" commission.
The Sale of Body Parts
A few months ago the medical center at UCLA was discoeverd to have been selling body parts. Not that doing so was illegal, but it was at the very least contrary to the expectations of the families, who donated their loved ones' bodies for medical research and education, to learn that UCLA was making money peddling the excess bequests on the body-parts market. This seemed like just the sort of thing for which "Someone has to be held accountable!" Newspaper accounts - which for purposes of this preliminary foray are a close enough approximation of general public sentiment - carried numerous interviews with affected families.
One, from the Washington Post, illustrates "sanction":
Selma Liroff, 81, made a pact with her husband, Walter, who died in 2001, to donate both their bodies to the medical program. "It makes such horrible pictures in my mind. We thought we were doing a good thing. I donated him, and they're making money off of him," said Liroff. "Now I'm angry, and I want someone to pay for this. Somebody's got to go to jail for this."
Another, from Time magazine, told the story of restoration:
[Lori Tilden]was in the room when her sister Kim died of breast cancer in 1998. The loss was devastating, but Lori took some consolation from the fact that her sister, a mother of two, had lived long enough to bequeath her remains to the UCLA willed-body program, hoping that what researchers learned from her cadaver would help spare other children the pain of growing up without a mother. A whole new kind of pain came last week, when Tilden learned [that someone at UCLA] may have illegally sold body parts for profit from some 500 cadavers in the UCLA cooler--Kim's possibly among them. . . . If someone profited from her sister's body, Tilden wants the money back [and said she would donate it to cancer research].
Still others reflect "correction:"
Michael Shapiro, a bioethicist and professor of law at USC argued that UCLA must correct the wrongdoing without closing down the willed body program. To do so, he recommends that UCLA tell the public that it will remain vigilant and that it has repaired the flaws in the program that allowed this event to happen. Another expert in health law from Boston University, George J. Annas, argued that the UCLA regents must be held accountable for both determining exactly what happened and designing a program to prevent similar events from happening in the future. The corrective view is also reflected in the statements of one of the UCLA regents, Joanne Kozberg, who said that the regents themselves must bear the responsibility to take action to prevent a reoccurrence.
Of all the newspaper items and interviews, by far the most frequent call for accountability was the demand for disclosure:
Shirley Williams wants to know about what happened to her husband's body, fearing that it was cut up and sold. Williams was also surprised that nobody at the university apologized to her. Selma Liroff wanted to know what happened to her husband. Kay Vanden Bosch wants to know what happened to her father's body. Susan Brenner reported that her fears that her mother's body was sold have undone her sense of closure after her mother's death. Brenner regrets her decision to agree to donation because she believes that she will never know what happened.
Self-Dealing at the United Way
A similar distribution of accountability demands can be seen in the press reports surrounding the United Way scandal that began in 1992 and continued until the charity's ousted President, William Aramony, was convicted in 1995.
In February of 1992 a report on the national United Way disclosed that William Aramony, who made $463,000 a year in salary and benefits, had been spending the charity's money for limousine travel, first class airfare and Concorde flights, and condominiums in Florida and New York; and that he had been creating private for-profit spin-off corporations, headed by his son, by which he profited from the steering of the United Way's patronage.
Following the initial story, newspapers reported on a variety of public and private responses, of which the majority could easily be classified as demands for accountability.
Some called for sanction:
After hearing of the lavish spending, Walter Annenberg, a philanthropist who had donated $450,000 to the charity demanded that Aramony be fired. The President of the Washington United Way insisted that he "step aside." The President of the Richmond United Way said that sanctioning Aramony (by insisting on his resignation) would demonstrate United Way's accountability to the public. Many local United Way chapters and United Way volunteers as well as executives shared this view and joined the call for his ouster.
Because the culprit had been individually identified, to some extent the United Way itself was seen as a victim. But at the same time, because people had entrusted their money and time and commitment to the organization rather than its president, whom very few knew by name, the United Way itself was the target of demands for accountability, largely calling for correction:
A number of local United Way chapters demanded seats on the United Way's national board, wresting exclusive control away from the national directors, because they believed the board had supervised Aramony inadequately Many United Way donors for their own part sought to cancel their pledges, or totally cease their involvement with the United Way
Restoration was best reflected by a demand from the Fresno United Way, that Aramony should be personally sued because, by damaging the reputation of the national organization, he caused $200,000 of losses in donations to the Fresno chapter itself.
Disclosure, however, was the overwhelming dimension of the reported demands for accountability. Local chapters and affiliates threatened and in many cases refused to send their dues to the national organization, until it provided them with a full explanation of what had happened and why. The Des Moine chapter of the United Way demanded full disclosure for a practical reason - only by such a coming-forth could the public's confidence be restored (viz. a recognition of the public's sentiment about what accountability requires.) Other local chapters recognized the same need, that only full disclosure would restore the trust on which both the local and the national operations were based. One United Way volunteer, Jay Smith, who was also a publisher of the Atlanta Journal and Constitution, stated that "[w]hat I have not heard, quite honestly, is an apology..."
The call for apology is not coincidental. Apology, it seems, can be used as a way of responding to the "disclosure" branch of accountability. Apology is not sanction; it does not effect restoration; it may be simultaneous with (and even conducive to), but does not necessarily achieve, correction. Apology does, however, effect communication. Indeed, apology is communication. Saying "I am sorry for what I have done" is necessarily to disclose what has happened, to recognize a duty to be forthcoming with those who feel themselves injured or betrayed, and to communicate.
In response to the story of Aramony's misuse of funds, after initial denials the United Way finally achieved Aramony's resignation. Aramony apologized for damage caused to the charity by his "lack of sensitivity to perceptions," while maintaining his innocence of any improper use of the charity's funds. No-one thought that apology meant much.
The United Way made apologies of its own. John F. Akers, the chairman of the national board, apologized to United Way employees and volunteers. Thomas Frist Jr., in charge of the committee to replace Aramony, offered an apology for having allowed the improprieties to occur.
The United Way made some corrective changes as well, reflecting if only implicitly the wrongfulness of its earlier actions. First class air travel was prohibited to its executives and employees. Economical ground transportation replaced the use of limousines. The board of the United Way took control of two of the private companies Aramony had set up and severed the charity's ties with a third. The board added members from local United Way chapters, created new oversight committees, installed a new auditing system, and created new rules of ethics to prevent conflicts of interest and the paying of excessive salaries to employees. The explicit purpose of these measures was to make the organization more accountable - to restore confidence by publicly increasing control and oversight over its spending. While not everyone was satisfied with the measures, eventually most were. The Chairman of the Seattle United Way felt reassured because the national organization was now listening to the local chapters. The leader of the Neenah Wisconsin chapter said that the statements from the United Way leadership communicated its commitment to change, and to healing.
An unrepentant William Aramony, however, was criminally indicted and convicted for fraud and conspiracy. His conviction (sanction) was seen as a vindication for the United Way organization, and provided a degree of closure for the scandal.
Interestingly, apology was a significant part of the strategy used by UCLA as well. The Dean of the Medical School and the Vice Chancellor of Medical Sciences personally and publicly apologized, and committed to making any and all pertinent information available to the donor families. In addition to apology, the University suspended the willed body program. to prevent any more bodies from being sold during the investigation and audit of all five of the California medical schools. The school also announced that it was considering pressing criminal charges against the responsible individuals, a number of whom were placed on leave during the investigation.
The "911 Commission A third event supports this connection among accountability, communication, and apology: the terrorist attack against the United States of September 11, 2001. In the spring of 2004, and within only days of each other, two government officials became the focus of press reports for what they said, and for what they didn't. The first was Richard Clark, former head of counter-terrorism for the United States. The following is a transcript of a story that ran that day on National Public Radio:
MICHELE NORRIS, NPR host: "Steve Push lost his wife, Lisa Raines, on September 11th. She was on American Airlines Flight 77, the plane that crashed into the Pentagon. He was in the hearing room this week to hear the testimony during the 9/11 hearings, and he joins us now to talk about what he heard and what he saw.
Mr. Push, when Richard Clarke testified, the former counterterrorism adviser, he began his testimony with an apology:"
RICHARD CLARKE (Former Counter-terrorism Adviser): "We tried hard, but that doesn't matter because we failed. And for that failure, I would ask, once all the facts are out, for your understanding and for your forgiveness."
MICHELE NORRIS (addressing Stephen Push): "You were sitting in the audience then. What was the reaction of the 9/11 families when he said that?"
STEPHEN PUSH (Husband of 9/11 Victim): "It was overwhelmingly positive, and I myself was personally gratified that he made that apology. It's an apology I've been waiting for from the government for the last two and a half years. And it's unfortunate it had to be someone who has left the government. But you know, I feel that there was a serious lapse leading up to September 11th, and it was very disheartening for the families to be told for a long time that nothing had gone wrong, that the government had done everything perfectly. And, of course, now two and a half years later, with a series of revelations with the joint inquiry and commission and various press leaks, we know now that that was not the case."
MICHELE NORRIS: "The commission is pursuing this information because of its value to the nation, to look back and learn from history so the nation can better protect itself, God forbid, that something like this happens again. But for someone who has such a strong personal connection to this, someone who's lost a loved one - in this case, your wife - what's the value of this information to you?"
STEPHEN. PUSH: Well, the primary value is, as you said, gaining knowledge that will help us prevent a future attack. But also, on a personal level for the families, I think just knowing what happened to our loved ones. For example, I don't know what happened on the plane that my wife was on before it crashed. Now I'll probably never know everything that needs to be known, but there have been so many conflicting reports. Was pepper spray used on a certain plane? Was there a gun on another plane? It's important to, you know, separate the wheat from the chaff in all these various stories and try to get an understanding of what really happened to our loved ones, what really happened that day.
Then, from a day not much later, the following press story ran, about the current National Security Advisor, Condelezza Rice:
Some 9/11 Families Angered by no Apology from Rice
Washington (Reuters) Some relatives of Sept. 11 victims responded in anger on Thursday to what they described as the White House's failure to accept responsibility for the 2001 attacks that killed nearly 3,000 people. Family members were among those in the crowded hearing room to listen to national security adviser Condoleezza Rice tell the 9-11 commission that bureaucratic structure was to blame for the administration's inability to counter the attacks.
"No one wants to take any responsibility. Three thousand people died, and all they want to talk about is structural problems," Bob McIlvaine of Oreland, Pennsylvania, whose son died in New York's World Trade Center. "They should be ashamed of themselves," he said.
Many 9/11 relatives said the general public should have been warned about the potential for attack during the summer of 2001, when intelligence officials were said to have detected a surge in communications between suspicious operatives.
But during three hours of testimony before the bipartisan commission, Rice denied the Bush administration was negligent, countering testimony of former White House anti-terror czar Richard Clarke. Clarke told the commission on March 24 that the Bush White House ignored the urgent threat from al Qaeda.
"I am angry at the lack of accepting accountability - that's what the president should have done, accepted responsibility," said Beverly Eckert of Stamford, Connecticut, whose husband Sean died at the World Trade Center.
"Instead, it's been outwardly directed, not just at the terrorists but at previous administrations."
Carie Lemack, whose mother also died in the attack on New York's World Trade Center towers, told CNN that Rice should have admitted errors were made.
"We did not hear that today. I'm hoping we are going to hear that because it is clear that 3,000 people don't just get murdered. There were mistakes made and we need to fix them to make sure Americans are safer."
"... We're glad that she came forward and spoke. We're glad that it was in public, under oath, and we were able to get that information. But there is a lot more truth to be told," she added.
What does it mean to say, "the President must accept accountability . . . "? Surely he would not be punished; compensation was not demanded, at least not in this setting; neither was correction. The 911 families were voicing a demand for disclosure and communication, and facing those who trusted; and apology was the format they expected. Similarly, though in the opposite way, when Richard Clark addressed the public, his apology was a "very positive" disclosure to those who simply wanted to know.
These four guises of accountability - sanction, correction, restoration and communication - might seem to be distinct. They are so easily distinguished, in fact, that they might well be independent concepts all labeled under the one word "accountability" purely as a result of linguistic convenience.
On the other hand, their association might be psychological as well as philological. They are all, of course, responses to the recognition of a wrongful or hurtful action done by another. Moreover, referring now to a psychological theory known as "attribution," they frequently coexist within a single injured individual, in the aftermath of a perceived injury, as inchoate possibilities.
An injured person, that is to say, experiences a disquiet that can be slaked by "holding someone accountable" even without saying (or knowing) exactly what that means. Attribution theory postulates that events occurring in the aftermath of the wrongful act shape the evolution of the response, often by reinforcing or selecting against one of its guises or another. To suggest what may be a useful metaphor from the world of quantum physics, the several dimensions of accountability may coexist as simultaneously possible solutions expressed by a "wave function" created by distress at a wrongful act. Not until a precipitating act occurs (the act of measurement, in quantum mechanics) does the wave "collapse" from a distribution of probabilities into a single coherent reality.
What I find most fascinating about this possibility, whether expressed in the metaphor of quantum physics or the language of social psychology, is the question, at once philosophical and psychological, whether the four seemingly distinct guises of accountability are commensurable. Are there moments in the aftermath of a wrong when the inchoate thirst for accountability could be slaked by achieving any of the four, perhaps prior to the time the wave function collapses? And what is it that determines the selection?
My own supposition is that the hegemony of the civil justice process itself guides the selection along a certain path, and as a result makes almost inevitable a surplus of anti-therapeutic and ethically questionable legal claims. What I mean to suggest is that the primacy of the civil justice system within American culture is not the result of the population's litigiousness. It is, rather, the cause of it.
Not too many years ago Margaret Peper and I gathered up all of the empirical literature of which we were then aware that could fit under the rubric of "Why People Sue." To make the findings of those very disparate investigations more accessible for the project we were then working on, we tried to re-assemble it all into a model that had a more manageable number of variables. It appeared to us then that the common variables were of two kinds: One sort included factors that describe the situation the subject finds themselves in. The other includes the several values that cause people to voice or not to voice a claim after an injurious event has occurred.
The descriptive factors that have been shown to have some predictive power -- that is, the facts that suggest whether a claim will probably be brought -- were in turn of three types.
* One is the facts about the event, or the injury itself, such as, Was it severe? Was the person disabled for a short time, or permanently? Did it occur publicly?
* A second included facts about the setting in which the event occurred. Was the claimant in a condition of dependency Were there other alternatives for dealing with the event, or was suffering it inescapable, as it might be in the case of sexual harassment in the work place?
* The third category included facts about the people involved, often referred to as demographic factors. What gender or age were they? Were they relatively wealthy, or relatively poorer?
The second group of factors included the values that may have been implicated or threatened or illuminated by the event. They too can be grouped into three: economic values, personal comfort values, and perceptions of justice and fairness.
* Economic values include what has been lost or gained or is otherwise at stake. Financial needs fall into this category.
* Personal comfort includes the nonfinancial cost of bringing a claim, or of suffering an unrecompensed wrong. How much community or family support for a particular course of action is available? What are the pressures in an event of this type that engender social respect, or social disapproval? People generally try to avoid uncomfortable situations, and therefore seek a balance between their personal comfort and the attainment of other important goals.
Perceptions of justice and fairness are also important. Does the individual blame him- or herself, or the other party? What is the evidence of fault, or of responsibility, and how is that perceived? These perceptions support strong motivations to act or not to act.
Our model assumed that people who perceive themselves to have been injured or wronged will behave with respect to that event in a way that maximizes their perceived self-interest. That self-interest is in turn a blend of the three values: financial, personal comfort, and perceptions of justice. While it is unlikely that each of those factors can be maximized simultaneously, the injured person should over time develop a strategy for optimizing their mix. The descriptive factors regarding the injury, the event, and the person help to explain and therefore to predict how each of those values may be weighted in any given case. The model, in other words, is two dimensional, suggesting that the two groups of factors interact both within themselves and with each other.
Without iterating here the nine permutations (three values times three descriptors), some of what we developed at the time seems helpful in assessing the meanings of accountability and the clear relationship between it and apology.
* Consider, for example, Personal Comfort. Filing a claim requires a commitment of time and energy (emotional as well as physical), in addition to money. Moreover, the act of suing -- still an extraordinary event in most people's lives -- may cause the claimant to confront deeply held beliefs about personal responsibility, while at the same time and juxtaposed to those beliefs are the equally compelling preferences to hold others responsible for their actions, to avoid being victimized by another's wrongdoing, and to get what one deserves. In a similar way, where claiming is socially "expected" or acceptable it will occur more often. Certain kinds of events are surrounded by cultural predispositions to claim (e.g. injuries occurring in the workplace.) Other kinds of injuries evoke negative cultural responses (e.g. accusations that one is just trying to "hit the lottery" in less severe personal injury cases.) Moreover, a higher claiming rate occurs when the claimant has a strong support group with which to discuss the event and by which to be supported as to the appropriateness of filing a grievance. The identity of the opponent also plays a role. Claiming frequency decreases where the claimant has to confront the opposite party directly and personally, while claiming frequency increases, ceteris paribus, when the opponent is an organization.
* What the claimant perceives as the cause of the event appears to be an important variable. Claimants who report that someone else was responsible for their injury sue for that loss more readily. This is the dynamic that has been labelled "attribution theory." It holds that individuals either internalize or externalize blame, interpreting their perceptions into some model of cause-and-effect. Sometimes individuals interpret events in such a way that they blame themselves for the outcome, even when objective factors would suggest otherwise. These patterns of either blaming oneself or blaming others affect the individual's willingness to file a claim -- an act which in most cases requires an attribution of responsibility to another party. In one study of automobile and work-related injuries, of those who believed that "someone else caused the accident," 36% to 45% made a formal claim. Of those who believed that "No one else caused the accident," the rates were 4% to 5%. Interestingly, among those who believed that "someone else may have caused the accident," the rates were from 9% to 20%.
Perceptions of Fairness and Justice When deciding whether or not to file a claim, people consider the overall fairness to themselves and others. For example, claimants may reason that they deserve compensation for their injuries -- that if another caused the injury, they should pay for the consequences. Those who tend not to sue come to the conclusion that it was just an accident, that no harm was intended, and that therefore a lawsuit would not be appropriate. The pre- and post-event relationship that the claimant has with the other person can be critical. And as to assessing what is a "fair" outcome in a given claim, one of the most significant factors is the knowledge of what others similarly situated may have gotten.
More generally, however, it is in the area of perceptions of fairness and the attributes of the setting -- principally, the actions of the other parties -- that the empirical findings have their most striking impact. Those who sue report very clearly being influenced by a sense of inequity; they look to the judicial system not just for restoration, but for rectitude, and to deter such injuries in the future, Many claimants, especially among those who filed medical malpractice suits, reported doing so because it was the only way they could find out what really happened.
The relationship between the claimant and the opponent is a crucial factor in determining claiming rates. It is perceived as "fair" to file a claim against someone who failed effectively to communicate information about a medical treatment, either before or after it occurred; likewise for someone who demonstrated a lack of concern about the personal effects of the care or of the adverse event. Fewer claims, for example, are made against female physicians, all other things being equal, an effect attributed to women's more personalized communication and relational skills.
Claimants who characterize their physician adversely in personal terms also report a diminished assessment of the doctor's overall professional competency, further justifying a legal action. Claim rates increase where the provider seems to be incompetent, "or is perceived as not being completely honest." While the overall relationship between a doctor and a patient does not have strong predictive power, the quality of specific interactions does influence claiming behavior: how the provider responds to the initial complaint about the professional services relates readily to increased lawyer use. Where the provider simply rejects the complaint, the claimant is more likely to seek legal counsel. In libel actions as well, claimants are more likely to contact an attorney only when the media defendant rejects a request for retraction, correction or apology.
An individual's propensity to attribute blame to themselves or others is closely linked with their perceptions of fairness. People who perceive themselves as having unjustly been made victims are more likely than others to find reasons to make a claim. The more attuned a claimant is to perceiving problems generally, the more likely they are to perceive the event that occurred as injurious. Thus, for example, claiming rates increase with rising income and education. The poor are less likely than the general population to perceive that a wrong has occurred or to assert their rights.
What all this tells us is, again, that the reaction to an injurious action is anything but fully determined by the nature of the action itself. There is a swirl of variables in an environment of disquiet and ambiguity, ready to precipitate into one "motive" or another, depending on how the justice of the situation is perceived - a gradient itself the consequence of how the perpetrator acts not only before and during the event, but afterward as well.
It seems reasonable, then, to suggest that a choice for the "punishment" aspect of accountability, for example, can be as good or as satisfying as any of the other three can be. The nature of the event and the nature of the injury do not of themselves make any one of the parts of accountability more appropriate than any other.
The injured person optimizes their self-interest. Where making a legal claim is supported by social expectations and by an apparatus ready to facilitate that choice, legal claims are more likely to be made, and especially so where the financial need for restoration is strong and no other avenue is available. That does not mean that the selection of claiming (entailing sanction and restoration) is any more an authentic choice than disclosure would have been. It means only that from among the several possible ways of holding someone accountable, the choice for litigation is an artifact of the environment. The legal system itself is a major component of that environment.
Now, the fun begins . . .
Copyright 2004. Greek Legal and Medical Conference