He Got Hurt, and No One's Going to Pay

February 16, 1994|By GORDON LIVINGSTON

COLUMBIA — Columbia.--While on a ski vacation with my family over Christmas, I was the victim of a bizarre accident that left me with injuries of undetermined seriousness and duration.

While most skiing mishaps involve falling down or colliding with a tree, and therefore allow the ski resort to invoke the legal protection of ''contributory negligence,'' my experience was different. I was hit from behind by a runaway snowmobile while standing in a lift line.

One minute I was getting my ticket checked, the next I was flying through the air as the riderless snowmobile mowed me down. As I was trying to collect myself and determine whether any bones had been broken, the snowmobile operator approached and said to no one in particular, ''Damn, the throttle must of froze. Threw me clean off.''

At the first-aid station, the injuries to my back and knee were examined before I was released to the care of my family. As the accident report was being taken by a ski patrol member, my 13-year-old daughter, who had witnessed the collision, said angrily, ''You ought to sue the pants off these guys!''

The person filling out the form asked, ''Is this your daughter?'' ''No,'' I replied, ''she's my attorney.''

During the rest of our vacation, while my family skied I lay on a couch in our condo, a heating pad on my back, watching more daytime TV than I ever hope to see again -- including an astonishing number of ads placed by personal-injury attorneys.

On our return home, I have hobbled to work, grateful for a sedentary job, and I am slowly healing. While I definitely will not compete in the Olympic giant slalom, I hope to ski again before the season ends.

Which brings me to the question asked by nearly everyone to whom I have told this story: ''Are you going to sue?'' It is a commentary on our times that this should be such a universal response.

In my initial anger at being hurt, I confess that the thought crossed my mind that someone owed me something for the pain, inconvenience and ruined vacation resulting from an incident for which I felt blameless. As I thought about it some more, however, I began to see things differently.

Life in general and skiing in particular are inherently risky activities. If every mistake one of us makes ends up in the legal system, what does that say about the way we view each other? Are we all potential adversaries waiting for some misstep that will serve as a lottery ticket in which the prize is an insurance company payoff?

Many years ago, I was a young lieutenant serving with an airborne division. On a live-fire exercise, I misread some map coordinates, which resulted in mortar rounds being fired into our own troops, wounding three. I remember thinking that this error would probably result in a court-martial, discharge from the service, and would likely ruin the rest of my life.

The resultant investigation never disclosed my culpability, nor did I confess it as I should have. Nothing happened to anyone; the soldiers, fortunately, were not seriously injured. What I learned from this incident about my own fallibility has stayed with me and made me more reluctant to judge harshly the mistakes of others.

I now practice medicine, a profession that, as we all know, has been hit particularly hard by the litigious outlook of our society. I have seen the doctor-patient relationship affected adversely and the cost of medical care inflated by the knowledge that no error will be forgiven and that each new patient is a potential legal antagonist.

Unnecessary tests are ordered to protect physicians from lawsuits, but the worst damage is done to the trust implicit in a well-intentioned effort to be helpful to another person.

I have heard the arguments about the need for negligence and incompetence to be punished and the legitimate costs of injured parties to be reimbursed. But we have gone far beyond this to the point where all bad outcomes must be someone's fault, where every accident must result in compensation. After all, the lawyers suggest to their clients, it's the insurance companies who pay. (I have heard a similar argument used to justify shoplifting.)

Under these circumstances, increasing numbers of obstetricians are refusing to deliver babies. The domestic production of small airplanes has nearly ceased because manufacturers cannot afford to defend the inevitable lawsuits when one crashes. We have come to fear some error in our driving that will provoke litigation in the face of bumper stickers that announce: ''Go Ahead, Hit Me. I Need the Money.''

Such attitudes have a corrosive effect on the ways in which we relate to each other and to the social compact that binds us. Surely we can be compensated for the legitimate costs of negligent injury without the inflated awards for ''pain and suffering'' that are so expensive, financially and emotionally, to us all.

So I won't be suing the ski resort. I trust my body to heal and the snowmobile operator to learn something from this mishap. I believe that if we are to live together, peacefully and unafraid, we must accept the hazards of everyday life and the human proclivity to make mistakes.

A little forgiveness might also help.

Gordon Livingston, a psychiatrist, wrote this article for the San Francisco Examiner.

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