For most of my adult life I thought that a tort was a sort of sophisticated lemon curd pudding. Rather recently I discovered that it is a medieval French term for a wrong, and is the basis for the medical negligence system that we all dread.
The principle itself is simple and attractive. If you injure someone else by acting badly you must compensate them. A child in the playground would applaud its inherent justice. But the child may go on to wonder why the injured person is given help only if the other person is at fault. Two children with cerebral palsy may have similar needs in life, but the one whose lawyer proves that the midwife didn't notice the dips on the cardiotograph will have millions of pounds in help while the other will have none. Fault must be proved and the amount paid bears no relation to the degree of fault or the means or needs of the injured person.
That's odd. And if you make a mistake are you necessarily morally culpable? We all make mistakes. This system is described as “distributive justice.” It is certainly distributive since nearly half the total costs go in fees.
If we were designing the thing from scratch, sitting in one of those dreadful health service planning meetings (God forbid), then a reasonable question would be: What is the purpose of the system? Is it to punish and deter wrongdoers? Or is its purpose to redistribute wealth to those who need it because of accidental harm? I think we would decide (probably after interminable posturing about “ownership” and “inclusivity,” and other such obscure terms) that punishment and redistribution of wealth do not make easy bedfellows.
The odd thing, to someone looking at it for the first time, is why such an expensive and clearly flawed system still exists. I do recall as a child having similar blinding revelations, such as the insight that if no one bothered with money then we could all have as many sweets as we wanted. I have realised subsequently that this analysis was possibly simplistic and am wary about repeating the mistake. But the conclusion that the medical negligence system is almost unbelievably bad does seem inescapable. It is hugely expensive, interminably protracted, desperately painful for all those involved, and fundamentally unfair. So all those in favour...?