Science, Risk, Decision Making and Happiness
A person with externally caused disease by definition has lost some or all happiness because of the disease. Tort law offers money as a partial offset to loss of happiness. Much tort law is based on judgments and guesses about human behavior, suffering and happiness, with many tort law rules being decades old, and some centuries old.
Updated thinking may be starting to arrive, and may even involve science and tort law. That possibility seems more real when one considers the interesting dialogs, research and books ongoing in the areas of risk, decision making and happiness. One such discussion is Peter Huang’s lengthy and substantive post at the Conglomerate, the several books cited in it the post, and posts he put up past week at the Conglomerate.
Imagine what tort law rules might become if we actually look carefully at rules and assumptions which are often taken for granted but seem dubious. For example, why do/should courts assume that warnings are read and understood? The assumption seems especially dubious today when we have warnings printed in tiny fonts in one language on generic package inserts that are so absurdly broad they lose all meaning. And, can we really say that a manufacturer is really fulfilling its personal responsibility when it uses generic, cheap inserts instead of tailored, useful means for communication ?
Consider also that society is seeing increasing disintermediation as highly skilled professionals (e.g. really smart doctors; really good engineers) become less and less accessible due to adoption of cookie cutter processes that focus on eliminating or reducing the use of high value/high cost professionals. Does the learned intermediary doctrine make sense when learned intermediaries are largely pushed out of their traditional roles as advisers ?
And, what about the problem of professional competence. Today, knowledge is growing so fast that doctors and other professionals are hard pressed to keep up. Should tort law continue to apply "local standards of care" or should there by a new rule requiring a local doctor and/or hospital to at least offer a recommendation to real experts. The standard of cancer care, for example, is far lower in a rural hospital than it is at MD Anderson, Memorial Sloan Kettering or Mayo. Would you – presumably a smart professional – accept treatment at a low standard of care or do you demand the benefit of and access to the best possible care?