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When Fear Is Deadly
Philip K. Howard
The New York Sun, March 14, 2006
Earlier this month, Charles Cullen, the nurse who pleaded guilty
to killing at least 29 patients in hospitals in New Jersey and
Pennsylvania, was sentenced to 11 consecutive life terms. He is no
longer a danger to society, but the underlying problem that allowed
him to kill still is.
During his 16-year nursing career, Cullen was able to move from
one hospital to another - to 10 medical facilities in all - because
fear of litigation prevented those hospitals from giving him a bad
reference. Co-workers observed his strange behavior, and caught him
in rooms of patients with medications that weren't appropriate. But
they didn't know he was murdering people, and couldn't prove that he
was doing something illegal. So the hospitals would eventually let
him go, and, when the next hospital in line asked for a reference,
merely gave the stock response of all employers nowadays: "We
confirm that he worked here from this to that date."
Even the Pennsylvania Department of State, which oversees the
state nursing board and had been warned about Cullen's penchant for
diverting medications, could not comment on his reputation.
"Legally, we can't speak about any information we receive that
doesn't result in disciplinary action," a spokesman said.
"What I'm coming to understand," said Dr. William Cors, the chief
medical officer of Somerset Medical Center in Somerville, N.J.,
where Cullen last worked, "is that, short of an actual conviction or
revocation of license, none of this information gets shared. If
anything good comes from this, it would be to reform the system
where we're prevented from telling one another what we know out of
fear, quite frankly, of being sued."
America's lawsuit culture has bred all kinds of bizarre changes
to our society - warning labels on coffee cups, and doctors
squandering billions in defensive medicine, to name just two. But
the inability to be honest about how you feel about other people is
one of the most destructive. Making judgments about people is the
currency of a social interaction in a free society. Who tries hard?
Who has good judgment? Who is a pleasure to deal with? And who acts
in a way that makes your skin crawl?
We're told we live in a free society - where the First Amendment
supposedly guarantees freedom of speech - but somehow we no longer
can express our opinions about other people. This change is the
outgrowth of our guilt about racism and other forms of
discrimination. But there's a difference between guarding against
patterns and practices of discrimination - which generally affect a
category of people - and making judgments about a particular person.
Lawsuits - more precisely, the unilateral availability of
lawsuits - have an in terrorem effect that freezes free speech.
Legal process is too expensive. Moreover, judgments about people, as
with Nurse Cullen, are rarely susceptible to "proof" - How do you
prove someone has bad judgment, or doesn't try hard, or acts too
strangely? Better to avoid litigation by not giving references at
all.
Employment lawsuits, often driven by injured pride, have flooded
federal courts and are notoriously unreliable. The assumption seems
to be that people will only sue if the claim has merit. But that's
not accurate. The more incompetent a person, studies have shown, the
less likely the person will realize his own incompetence. A federal
judge described to me a case where, after a trial that demonstrated
overwhelmingly that the claimant was not up to the job, the
plaintiff wept with frustration at the injustice.
Clearly this has gone too far. In the wake of these murders, New
Jersey passed a law requiring hospitals to share information about
employees. But next time the psychopath will be in a school or
business.
Employment law must be changed to promote honest opinion on
matters of character and competence in all areas of society. Many
states offer "qualified immunity" for job references, but the
loopholes are easy to find (for example, just allege "bad
faith").The only effective answer is to create a foolproof immunity
for employee references - no claim will be entertained unless the
judge determines at the outset that a high hurdle of intentional
misstatement has been met. More broadly, there should be a
re-examination of employee litigation, and perhaps substitute a
complaint bureau or summary arbitration process for most individual
claims.
Our modern sensibility is to worry about the unfairness of a
mean-spirited supervisor trying to sabotage someone's career. But
our fear of occasional unfairness has now led to a tidal wave of
unfairness, where good people aren't honored and bad people get away
with murder.
Mr. Howard, a lawyer and author, is chairman of Common Good, a
bipartisan coalition to restore reliability to American law
(www.cgood.org). |
