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JACK SMITH ON SUNDAY

Courting Disaster : The Land of the Free Is Evolving Into the Home of the Lawsuit

August 20, 1989|JACK SMITH

THERE USED TO be a common retort when one was accused of some infringement or wrong: "Sue me!"

It is not heard so often today. The chances are too good that the person challenged will do just that.

Richard Bridges of San Marcos complains that the American Dream has been replaced by the lawsuit. It's no longer "what can I do?" but "how much can I get?"

He cites the case of an Oceanside man who sued the city on the grounds that he contracted a staph infection while swimming in ocean waters contaminated by the city's sewage system. Not knowing more about it, I can't offhand call that a frivolous suit.

Certainly, however, we are the most litigious society in the world. It sometimes seems as though there is nobody who doesn't have a lawsuit going.

Some indeed are frivolous, or seem so. I am reminded of the burglar who fell through a skylight while trying to enter a building at night and sued the owners of the building for his injuries. That may be apocryphal, but it is hardly less curious than many we read about in the newspaper.

The acceptance of contemporary relationships has broken new ground in law. A longtime mistress sues her ex-lover for palimony. A homosexual sues his late lover's estate because that lover did not admit to having AIDS, even though the plaintiff did not contract the disease.

In a recent episode of "L.A. Law," a young Olympic gold-medal winner sues a breakfast cereal manufacturer for breach of contract. The plaintiff alleges that after signing a $3-million contract to endorse the cereal, he came out of the closet as a homosexual, and the manufacturer reneged. The judge, himself a homosexual, ruled for the defendant, holding that a homosexual would not present the type of image the cereal company had a right to expect. Strange.

Most of what we know about the law comes from the movies, distorted as they are. In "The Verdict," a drunken lawyer (played by Paul Newman) violates ethics by declining to tell his clients of a settlement offered in a malpractice suit, only to have the jury, after deliberating, ask the judge if they can vote more money than the plaintiffs asked.

Several years ago, in lifting a concrete block, I ruptured a disk. My orthopedist, however, insisted that I did not have a ruptured disk. In two months, I suffered foot drop in my right leg. A myelogram at that time showed what my doctor called the biggest rupture he had ever seen. He put me in surgery the next day. In time, I recovered most of the use of my foot, but my leg remains damaged and subject to shooting pains. However, it never occurred to me to sue. I figured that the doctor was doing the best he could and made a mistake. I make mistakes every day and haven't been sued yet.

On the other hand, my older brother sued his doctor and a pharmaceutical firm over kidney damage caused by the continued use of a specific drug for migraine. Except for his migraine, my brother was as healthy a man as I had ever seen. He had never smoked a cigarette in his life; he drank sparingly; he didn't even have a cavity. The drug killed him, and his widow received a $60,000 settlement.

When I told that story to a doctor one night at a party, he got furious. He insisted that my brother's doctor had acted in good faith and that the pharmaceutical company would have issued warnings of possible side effects.

I'm not taking sides here, but tort lawyers hold that somebody is responsible for every accident, and it isn't the victim. God, fate or luck has nothing to do with it.

Several weeks ago, as I have already reported, I lost my balance while trying to get out of a low swivel chair in my den and hurt my back. For days, I was in agony. Every time I moved in bed, I screamed. I lost a week's work, suffered considerable pain and was a burden to my loved ones.

What I want to know is whom do I sue?

Maybe I should hire a lawyer. I ought to have at least as good a case as that burglar who fell through the skylight.

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