One thing that comes to mind when issues regarding increased influence by the government in healthcare. Today there are no public hayrides. Why? Because somewhere someone decided they could sue if some rambunctious teenage got hurt during the ride … which mean insurance was required … which meant no more hayrides. How much public interest in health care of this sort not give increased impetus to control risk or other behavior deemed not necessary if that activity has but the smallest negative impact on public health and subsequently public insurance rates. Hayrides are harmless romantic fun that were once common in the New England autumn. Now they are only a private affair hidden from any organized groups that might be subject to suit.

There is a notion among so many today, and my impression is that this idea is found more on the left than the right, that if someone is injured especially badly then there is necessarily another at fault. Actual accidents do not exist in their world. And that it is right to use legal proceedings after any substantial injury to redress the wrong and to locate (or invent) a guilty party and get them to pay. This is, I think, quite a childish impulse. I don’t understand how an adult can act on such an idea in the absence of evidence or any suggestion of malfeasance or malice.

Negligence is often cited as a cause for accidents and used as a proxy for fault. Tiger Woods occasionally misses a nominally routine putt. Jose Calderon has an 2008/9 NBA free shooting percentage of 98.052%. Why not 100%? After all free throws are routine. The point is that humans performing any routine activities will occasionally fail or introduce a mistake. Accidents can occur which are not intentional and are not actionable. All too often an error is cause for suit even when it is an “honest” mistake. An obvious rejoinder is that this is what courts are for, to distinguish between honest mistakes and ones which arise from malice, greed, or other intentional errors. And yes, that is the case. But the courts should not be the place where this issue is explored, but the place where evidence of error is tried.

Filed under: ConservativeEthics & MoralityJudiciaryLiberalMark O.

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