Jewish World Review April 11, 2004/ 21 Nissan, 5764

Marianne M. Jennings

Marianne M. Jennings
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Consumer Reports

Malpractice society | I cannot abide another minute of it. The "9-11 Commission" has sent me over the edge. 'Tis a tragic way to snap after having survived the O.J. Simpson murder trials, Princess Diana's death (the media still haunt us with this one on anniversaries of birth, death, and eating disorders, and release of each new hangers-on's book), and that Mambo Number 5 song.

I unraveled when some whiner commented that Condi Rice testified under oath whereas Mr. Clinton only met with the Commission. What difference could it possibly make whether that guy was under oath?

Blame the 9-11 Commission on trial lawyers. They have us believing that all mishaps that befall us are attributable to malpractice. These snake-oil louts have engrained in us a sense of entitlement to a perfect and linear life, insulated from all harm, accident, and even the consequences of our own choices. One forced detour along a linear path to nirvana, and our contingent friends pounce, prepared to find fault, and, ergo liability.

These are the gents who ginned up some junk science and bankrupt Dow Corning by convincing Dateline, 20/20, and other arms and subsidiaries of Malpractice-R-Us that evil corporate magnates had implanted poison into unsuspecting women. Blame, blame, blame. Fault, fault, fault. $3 billion please.

Eventually the FDA concluded that the implants, which would be back on the market if another commission hadn't held hearings, carried no higher risk rate than any prescription drug (about 5% ). Truth emerged far too late to save the company or even the use of silicone in other medical devices that were life-giving and lifesaving, such as shunts and feeding tubes. Risk forced silicone manufacturers to stop selling to medical device manufacturers.

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Women made the decision to have their chests cut open so that doctors could plop in some fluid-laden ZipLoc bags, thus giving them a look as natural as the male pattern baldness comb-over. They made these choices after being handed warnings only slightly less wordy than the World Book. Vanity overtook reason, and when reason came back to haunt them, they turned to the lawyers. Fault, even when it's not there. Blame, even if untrue.

Some years ago, a child, whilst riding one of those Big Wheels, rolled down his steep driveway into the street. Big Wheels are those plastic, low-riding pedal toys now banished from childhood. A driver who was not speeding or otherwise engaged (these being pre-cell phone days) struck and injured the child. A tragic accident, but a lawyer recovered from both the tire manufacturer for the driver's tires and the manufacturers of the Big Wheel product.

Perhaps the parents should have been watching more closely. Perhaps the parents should have put a stop to childhood activity that ended up in the street. Perhaps the toy manufacturer should have anticipated that these low-riding toys are not visible from the driver's seat of a vehicle with all-terrain tires. Perhaps the builder should have constructed a driveway without a slope. Perhaps the Big Wheel manufacturer should have warned about steep driveway use. Perhaps the parents should have directed traffic at the bottom of the driveway. Perhaps the city should have put up barricades during Big Wheel riding hours. Perhaps the city should have developed a new universal sign, "CAUTION: LOW-RIDING CHILDREN."

Perhaps what we experienced, though sad and difficult, was, quite simply, an accident. We mourn the loss. We regret what happened. Assignment of blame can help those with losses cope or even rationalize some culpability. But, human life is priceless (at least to social conservatives), and even punitive damages don't heal. Finger-pointing and large verdicts detract from introspection, "What do we learn and how do we go forward?" We honor lives lost by proclaiming unequivocally, "Never again."

The 9-11 Commission is not about the business of going forward and "Never again." Lawyerly blame and punishment are its goals - hindsight is 20/20. But, the stakes in this blame game are higher than punitive damages; The stakes are effective leadership. The 9-11 Commission is a lynch mob for Mr. Bush.

From my vantage point of limited observation, having tired of the hearings circus when Richard Clarke yucked it up on the Al Franken radio program, Mr. Bush et al. probably missed a few things because of structural and procedural defects in our law enforcement, national security, and immigration systems. The good news is that we can fix them. The bad news is that in the process we may lose the leader who, when given the 9-11 wake-up call, responded with the correct action: We are at war. We continue to be at war. We understand the enemy now. We fight based on lessons learned.

Why is this all so hard to grasp? Because we are consumed with malpractice and punishment. Perhaps there is some consolation in that. But, as we battle within, the enemy grows stronger without.

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JWR contributor Marianne M. Jennings is a professor of legal and ethical studies at Arizona State University. Send your comments by clicking here.

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© 2004, Marianne M. Jennings