Letters: Malpractice, Augusta National (June 2003)

On Medical Malpractice Suits

In his article on medical malpractice ("Doctors Shrug," Navigator, March 2003), Ed Hudgins reluctantly endorses a legally mandated cap on payments for pain and suffering. Hudgins acknowledges that under such a cap, genuine victims of gross medical negligence will not receive the compensation due them. Here is an alternative: Losing plaintiffs pay defendants 5 percent of the amount they sued for. Thus, if I want to sue my doctor for $1 million, I must post a $50,000 bond with the court at the time the suit is filed. If I lose the case, the money goes to the doctor. If I win, the money I posted is returned to me. Plaintiffs with legitimate grievances (wrong leg amputated) would have no trouble raising the money for the bond. Unjustified claims, on the other hand, would be much less likely to be filed. Such a rule would have the additional benefit of constraining amounts sought even in legitimate cases of malpractice, which would bring down malpractice insurance premiums.

Larry van Heerden
The author runs the Web site Free-Market Medicine: www.MarketMed.org.

The author responds:

Many proposed cures for the plague of predatory lawyers and failing tort law system have political or practical drawbacks. A cap on pain-and-suffering damages would still allow a malpractice victim with a wrongly amputated leg to collect for actual economic damages, including medical bills and past and future lost wages. But a woman with a wrongly removed breast might think that justice is not served by a pain-and-suffering award capped at $200,000.

A loser-pays system, like those operating in Britain and other countries, also could reduce nuisance lawsuits. Van Heerden offers an interesting variation of this approach. Critics could object that some victims might not have enough money to post a bond. But if a victim has a strong case, his lawyers might post the bond for the chance of recovering the bond money plus their fees if they win the case. Perhaps a market for tort claims cases would emerge, as suggested by Peter Choharis in Regulation magazine, volume 18, number 4, 1995. This arrangement could hold down the number of costly nuisance suits without penalizing real victims.

Edward Hudgins

On Augusta National's Men-Only Membership

I enjoyed the article by Russell La Valle regarding the rights of members of the Augusta National Golf Club. I agree that the ANGC (or any other private club) should be able to establish its rules for membership or use, regardless of whether those rules are seen as "fair" by outsiders or the government. I also agree that Martha Burk is one of the least sympathetic characters in the organized feminist movement today. If she thinks women don't "disparage" men when they get together for girls' night out, well, she and I obviously don't attend the same dinners!

For all that, it is important to look at the underlying concern, which has some merit. Memberships in golf and similar clubs can be important to business success. It is in these social and semi-social settings that relationships are built, and from those relationships flow contracts, deals, jobs, investments, etc. Excluding women (or members of racial minorities) from these clubs makes it harder for them to move into and succeed at the highest levels of business.

Furthermore, it is important to acknowledge Burk's right to demonstrate and to try to influence the behavior of the ANGC's leadership. Thirty years ago, I was the only professional woman in a large office; I can attest to the changes that have happened in the workplace, and I know they would not have occurred without pressure from people more radically feminist than I. I personally deplore the ANGC's position, and if I were in a position to influence it, I would do so. Persuasion takes many forms, from debate to demonstration. Martha Burk is, unfortunately, really bad at both.

Lou Villadsen

The author responds:

Lou Villadsen's thoughtful letter raises a number of issues worthy of discussion. First, everyone agrees that Martha Burk has the right to demonstrate and to try to persuade the members of ANGC to change their minds regarding male-only membership. However, as I pointed out, Burk's right of protest does not extend to the right of direct confrontation. Secondly, Villadsen says she agree with ANGC's right "to be able to establish its rules for membership or use, regardless of whether those rules are seen as 'fair' by outsiders or the government," Yet she does not say whether she accepts my argument that ANGC's policy is moral, rational, and psychologically healthy. If she does, does she think it proper to harass people into renouncing their moral, rational, and psychologically healthy behavior? That position seems contrary to the "live and let live" spirit of Objectivism, which maintains there are no fundamental conflicts between rational people's interests.

Thirdly, Villadsen states that because private club membership can be important to business success, excluding women makes it harder for them to succeed at the highest level of business. Harder—by what standard? Does ANGC make life harder for women every time it fails to present them with opportunities they desire? Desiring opportunity doesn't give anyone the right to make moral claims on individuals or private groups like ANGC. Augusta National doesn't owe people opportunities simply because it inadvertently creates them. Lastly, it may well be true that the changed status of women in the workplace over the last thirty years was brought about by "people more radically feminist" than Villadsen. Certainly, it was brought about by radical means: equal-opportunity laws, affirmative action regulations, anti-discrimination suits, and government controls over speech and behavior. Given these two facts, the results cannot be reckoned good—even if some Objectivists enjoy them. The pity is that we cannot know what social relationships we might now enjoy if more women had joined Ayn Rand in rejecting feminists as their representatives.

Russell La Valle