Wednesday, October 7, 2009

A THERAPEUTIC POST, AND A WORD ABOUT "REASONABLENESS"

A REFLECTION

I'm really in no emotional condition to write. This is not a confession; I just want to say how I feel now so I can remember it later. It helps me when I express what's going on inside my head. During easier times, I can write almost endlessly because I can focus. These days, however, I can barely concentrate. I mentioned last week that I have been going through hard times because my life partner began suffering from a mental illness. It got so bad that he had to go to the hospital to "rest." I have no idea how long he will stay there.

I have never endured a situation like this. We have lived together for nearly ten years; it is jarring to know he is no longer in the house. Worse, I am tormented by the thought that he is not the person I knew. When I speak to him on the phone, it is clear that his illness has overtaken his mind. It breaks my heart and drains my own energy. In addition, I have no idea what the future holds. It is mentally taxing to deal with uncertainty about important things. I am tired all day long. My mind cannot follow anything for more than a few minutes. I am not doing well.

All this trouble started more than two years ago. My partner's mental illness represents the culmination of pressures that began when he suffered a freak burn accident in 2007. I typically do not talk about personal things like this, but now I see no reason to hold back. It helps me sort out my own difficulties when I put them in a chronology. I still cling to logic when it comes to understanding historical events that have an effect on me. I have a good memory and I put it to use.

Let's start with the injury. My partner suffered a devastating burn on his right arm in a health club steam room. No one really knows how it happened; he went into shock almost immediately after it happened. He always tells the same story: He was walking into the steam room when a burst of steam came from his right side, scalding him. He immediately left the steam room, where an employee saw him and remarked: "Oh my God, your arm!" Soon thereafter, he fainted. An ambulance took him to the emergency room. A few hours later, Chicago's best burn trauma unit admitted him for treatment. To make a long story short, he stayed in the hospital for 35 days, endured several skin graft surgeries, suffered two heart attacks and an induced coma.

Upon his release, he was essentially a broken man. His right arm was permanently disfigured. He could still use it for most things, but he did not dare show it in public. To save his arm, doctors had to shear skin off his legs to patch onto the wound. He bears those scars, too. Within a few months, he began slipping into deep depression. He did not get out of bed all day. And he continued to suffer pain in his arm. He took addictive opiate pain-killers to manage it.

All the while, I cared for him. I did the shopping. I did the errands. I took him to appointments and made phone calls. I managed the medications and dealt with the doctors. I provided comfort and sat by the bed when I had to. I tried to work for the first few months after he left the hospital. But he got so lonely and depressed while I was away that I genuinely feared for his life. So I decided to suspend my career to care for him. During that I time, I started writing this blog. Yet during the same time, I have had the much greater responsibility to care for him. In consequence, I, too, have scarcely known rest since 2007.

We tried to sue the health club that caused the injury. But whenever my partner talked about what happened, he fell deeper into depression. Lawyers think it's easy for injured people to relive the worst day in their lives over and over again; it isn't. Worse, we discovered that the health club did not maintain liability insurance on its land, so it would be extremely difficult to recover any money on his behalf without a knock-down, drag-out fight that likely would have driven him over the emotional edge. Our lawyers refused to continue representing us when they found the club had no insurance. Legally and morally, our lawyers held the high ground: No one deserves to enter a business establishment and walk out with a life-threatening burn injury. Numerous legal theories supported our position, from negligence to strict products liability. From a theoretical perspective, we should have won some compensation for him.

But we didn't. No matter how many legal advantages we had, the lawyers got cold feet as soon as they learned there was no insurance involved. Five other lawyers had the same reaction: "Oooh, no insurance! Sorry, I can't help you."

In personal injury cases, liability insurance companies ensure that defendants do not go bankrupt when accidents happen on their land. The insurance company pays for the defense and pays any judgments against the defendants. This protects the defendants' own assets from seizure. Insurance companies also speed things along relatively fast; and that makes everyone happy, including the injured person's lawyers. An insurance company will settle a case against its client quite readily if there are strong facts from which to imply negligence. The defendant just goes along with the program: After all, it is not his money at stake. By contrast, when a defendant does not have insurance, he will fight to the end because it is his money.

That was the situation we faced. And our lawyers bailed out the moment they discovered that they would have to fight for years for potentially no reward. Neither justice nor legal principle spurred them to action. Unless a case could quickly pay out, it was not worth taking. For these lawyers, cases were little more than investments. It did not matter that my partner suffered outrageous injustice due to the health club's negligence: There was not a quick, ready profit to be made on his case, so no lawyer pursued it. Ironically, the health club saved itself by acting irresponsibly: It did not have liability insurance.

Naturally, this result only deepened my resentment toward lawyers and their profession. It reaffirmed that justice does not motivate lawyers. Only potential profits interest them. If a case involves justice and profits, that will get them off their seats. But if it involves justice and no profit, forget it.

But I wonder what would have happened even if the case went forward. How could anyone put a dollar value on my partner's injury? How could money compensate him for the agony he suffered? How could any check restore his scorched arm, or make him whole from the misery and pain he endured in the hospital? I saw his pain up close and personal. I saw him scream at night. I saw him unconscious and hooked up to a ventilator. I saw him cry out in fear as they wheeled him off for yet another surgery. I saw him with a trach tube down his throat and unable to speak. I saw him sweat through his clothes and lie helpless in the bed with his bloody arm in a splint. I had to cut off his shirts with a knife and sponge him dry. I saw him fall into depression and now into mania. What money could make all this "disappear?" What does money have to do with all this?

All these experiences made me question the law. From the law's perspective, money "recompenses" negligently-caused injury. Yet I know from experience that money would have done nothing to recompense my partner's plight, nor would have made his life "all better." Worse, I saw that the law condescends when it comes to monetary awards for injury. Suppose, for instance, that a jury evaluated my partner's pain, suffering and emotional turmoil and concluded that the health club's negligence caused it. Let's say it awarded him $5,000,000. That's all well and good. But under a doctrine called "remittitur," the judge could say: "That's unreasonable. He's only getting $500,000."

Think about how insulting that is. It's one thing to put a dollar amount on physical suffering, disfigurement, permanent injury and even death. It's quite another to claim that one amount is "reasonable" over another. My experience with life-altering injuries convinced me that the law is stupid. After all, what does a judge know about what injured people really suffer? And how can he say with any authority what someone's pain is "worth," let alone whether the amount is "reasonable?"

This example illustrates my deep resentment toward all "objective standards" in the law. Judges always speak in "reasonable" terms: "Reasonable time," "reasonable care," "reasonable regard," "reasonable amount," "reasonable certainty." They think they refer to some magical standard when they use the word "reasonable." In fact, they refer only to their own, value-laden judgments concerning particular conduct in particular circumstances. Judges, after all, come from a distinct social class with distinct ideas about money, punctuality, relationships and "responsibility." They probably never suffered life-altering injuries. If they object to a monetary amount as "excessive" from their perspective, they call it "unreasonable." Yet who are they to quantify another human being's suffering?

Let a judge's wife suffer the same agony that my partner suffered. Then he can tell me what amount would "reasonably" compensate her for it.

4 comments:

Teresa Silverthorn said...

Oh, my goodness. Such suffering you are both going through. I am so sorry to read what you have written here, it makes me feel helpless that I can not help you.

The only thing I can offer is that if your partner is on anti-depressive medication, it can often begin to create the problem it was created to cure.

Meaning, these medications can actually cause increased medication.

And, even in their best light, although they do aid to numb the mind from sorrow, they also numb it from joy.

I hope this is helpful. I wish there was more I could offer..

Teresa said...

Correction:

"Meaning these medications can actually cause increased depression"

My apologies...

Balthazar Oesterhoudt said...

Thank you for your concern. Anti-depressive medications likely kicked off my partner's present problems, but they have complex roots. I am not sure whether they are going to put him on a new one or what; I just want him to be on as few drugs as possible. I am seeing more and more how pernicious medications really are.

Normally I don't write extremely personal material in my posts, but this situation has fundamentally encroached on my life and I couldn't help but discuss it. That said, I have been a wreck for about a month now. I have started to feel a little better over the past week, but I have quite a ways to go.

Thanks again for your concern and good thoughts.

SteveW said...

I'm here, Ben. I don't have anything to say, but I'm here.