Litigious America
By Shashi Tharoor
Newsweek International
July 30, 2001

The other day, a friend of mine who had been planning to buy a town house in New York City announced he had given up his quest. “Too expensive?” I asked. “No,” he replied. “I discovered that if someone slips on an icy sidewalk outside my front door, he could sue me for damages. I don’t need the grief.”

CHALK UP ONE MORE CASUALTY to contemporary America’s most crippling disease—fear of litigation. Slides and seesaws are disappearing from children’s parks around the country because city authorities are afraid of going bankrupt if the parents of an injured kid sue them for negligence. Doctors order slews of unnecessary tests for patients with the mildest of symptoms because if one in a thousand has a serious illness the doctor could be sued for malpractice. Teachers have stopped hugging schoolchildren for fear of being sued for sexual misconduct. Colleagues have cut down on office banter in case they are carpeted for sexual harassment. The list goes on and on.

In some countries, people resort less readily to litigation because the courts could take decades to rule on a suit. In America, the profusion of lawyers (the country’s most popular profession) and the existence of a well-honed judicial structure means no one has that disincentive. In fact, the propensity of juries to award staggering damages encourages lawsuits. Everyone knows the case of the elderly coffee drinker who collected a fortune ($2.9 million, later reduced to $640,000) from McDonald’s after spilling coffee on herself that she said was too hot. The company paid, and McDonald’s coffee cups now bear the legend caution: this cup contains an extremely hot beverage.

Whatever happened to common sense? In a new book, “The Lost Art of Drawing the Line,” the lawyer and author Philip K. Howard tells the story of a 15-year-old boy who bled to death 30 feet outside the hospital door because the emergency-room staff were afraid of their legal liability if they went outside to pick him up. In another situation a recent medical graduate, a week away from getting her doctor’s license, did not come to the rescue of a badly injured victim of a road accident—for fear of being sued for practicing without a license. “We accept this perpetual legal anxiety as we would an incurable disease,” Howard writes. “We barely even question the system because, well, that’s how law works.”

All this is the illogical outcome of decades of Americans’ asserting their rights as individuals and consumers: the right to be sold reliable and safe products, the right not to be abused by people in positions of authority, the right to be compensated for any harm done to them by the actions (or inaction) of others. As a result Congress and the states have passed laws and rules that make people more accountable for sins of omission and commission. In Michigan, for instance, it’s illegal for teachers to touch their students for any reason whatsoever. In many countries around the world, no teacher would be deemed a success if he maintained such a hands-off policy. But in America, where a music teacher was sued for pedophilic sexual assault when he positioned an elementary-school girl’s fingers on her flute, it’s probably just as well. In New York this month, a Pace University law student is suing her professor for pulling a chair out from under her to demonstrate how personal-injury lawsuits occur. The professor, as it happens, was teaching a torts class. He is also the author of a book titled “How to Succeed in Law School.” His student clearly had learned her lessons too well.

“Is there a doctor in the house?” was the famous cry in London’s West End if a theatergoer suddenly collapsed. If that happened on Broadway today, an off-duty physician would probably burrow deeper into his seat. Where doctors of old saw patients in distress, today they see potential plaintiffs. No wonder the slightest bruise might prompt your doctor to order an MRI rather than an ice pack. The Quarterly Journal of Economics estimated recently that the practice of “defensive medicine”—doctors prescribing treatments, X-rays and life-support principally to pre-empt legal action—costs some $50 billion a year.

Of course, fear of litigation has its funny side: warning labels. You cannot unwrap any package in America without coming across one of these extraordinary reflections of the culture. Children’s toys carry warnings that they must not be put into the mouth. Battery packs declare they should not be exposed to flames. Detergents carry labels warning they are harmful if swallowed. But the prize goes to the federal injunction against eating the toner of the photocopier. Now there’s a hazard only someone really imaginative could have thought of suing over. But hey, why take the chance?

Tharoor, a senior U.N. official, is author of the forthcoming novel “Riot.”