We’ve been watching a depressing British TV show called Bodies – set in a hospital with an incompetent senior obstetrician. The storyline of the first series follows the various ways different doctors deal with the incompetence – from ignoring it, to trying to stop it happening subtly, to reporting it and then being suspended and punished by all the other doctors for breaking the code. “Doctors look after doctors” is a constant refrain.
At one point, one of the other senior doctors, explains why this works – (paraphrasing from memory) –
“If doctors were held to account for every single mistake they make, even if it cost a life, then there would be no doctors left. We all would have been struck off. So the code is that we don’t report mistakes – doctors look after doctors. The cost of that code is the occasional completely incompetent doctor, like Mr Hurley here. That’s how it works, and if you go outside that, you’re on your own.”
It recalled to me a problem that I’ve been pondering for a while. The legal system is, mostly, great at picking up egregious cases of negligence, and punishing them with money. If your household appliance explodes, and injures you, you’ll generally get compensation, and that’s one of the reasons that most household appliances don’t explode – manufacturers know that it’s sensible to try and avoid that in products they make.
But the legal system doesn’t work well in sorting out issues that are more balanced. If a particular decision has both benefits and costs – particularly if they are to different people – then the legal system will only see the costs.
This Bodies example one such case – the senior doctor doesn’t trust the legal system, as he doesn’t think it will value society’s need to have enough doctors in the system, even if they aren’t all perfect. So instead, he takes it upon himself to play god, and let the incompetent doctors through, for the greater good. The legal system, on the other hand, in his view, would have punished so many doctors that there wouldn’t be enough to look after the rest of society.
My favourite example of this is the blood donation one – the Australian Red Cross stopped taking any blood donor who had lived in the UK, because of the remote risk of mad cow disease. This had real costs – lack of blood is a perennial problem in our hospital system, and there were almost certainly lives lost because of it – but no legal case brought by someone who caught mad cow disease from blood donation would have recognised those costs. And it’s hard to imagine a case being won by someone who has died or been left permanently damaged through lack of donated blood.
At some level, vaccination is also this kind of problem – all vaccinations have some form of side effects (generally only a sore arm, maybe a fever for a day or so). You get vaccinated because it will save some lives from people not dying from horrible diseases. But the lives saved aren’t necessarily those who get the worst side effects. If you can look at vaccination with a very cold-hearted logical eye, even a vaccine that causes a few deaths is likely to be a good thing for society as a whole, if it prevents a disease (say small pox) that would have killed a whole lot more.
If the legal system did somehow change to allow some form of “greater good” argument, it would be incredibly unpopular. If you’re the person who has suffered a grievous injury, you’re unlikely to be especially comforted by the fact that the act that caused your injury has also, coincidentally, helped others.
Managing to take into account some kind of “greater good” defence would probably require wholesale, unimaginable changes to our legal system. So it’s unlikely to happen. But as our society becomes more and more risk averse, we run the risk of making bad decisions that don’t look at the benefits to society as a whole of taking some risks.