Monday Morning Crisis Quarterback

Two seemingly unrelated stories made headlines today.  The first was that the Georgia Supreme Court struck down laws limiting jury awards for pain and suffering in malpractice lawsuits.  The second was that New York City settled a lawsuit involving roughly 100,000 strip searches of people who were charged with nonviolent misdemeanors.  The total settlement is $33 million.

The reasons for these headlines are different.  They happened in different states with different plaintiffs and different legal arguments.  Both, however, bring home a key point that sometimes gets missed amidst political rhetoric, and that is simply this:  pain and suffering is a real thing.

When we think about pain and suffering awards in lawsuits, we often think about what seem like frivolous or outlandish cases.  The term "pain and suffering" conjures up visions of people faking whiplash from car accidents or suing over burns from drive-through coffee.  It's easy to lose sight of what this type of award is supposed to be for, that is, to compensate people with money for the non-monetary damage that someone's wrong actions have done to them.

The New York case, although it does not specifically reference "pain and suffering" as far as I can see, illustrates these damages in a way most of us can probably understand.  The settlement is punitive -- that is, the city is paying as a punishment for doing strip searches when they shouldn't have (and in most of the cases in violation of a 2002 agreement not to).  Those who were searched will receive between $1800 and $2900 each, with two exceptions. 

Two women will receive $20,000 as part of the settlement.  These women, who were also arrested for nonviolent misdemeanors, were forced to undergo gynecological exams as part of their strip search.  The difference in the amounts given to most of the plaintiffs vs. these two women are not small, and they are not accidental.

Everyone who undergoes a mass strip search is humiliated.  Most of us are nervous getting naked in front of our physicians, let alone strangers.  The added indignity of having to lift or separate various body parts only makes it worse.  For some people, the humiliation is milder than for others.  Some may feel traumatized by the experience.

Undergoing a forced gynecological exam adds a whole other layer of trauma to the experience, however.  This goes beyond "they shouldn't have done that" and beyond humiliation, and into the territory of assault.  Many women find going to the gynecologist distasteful under the best of circumstances.  We swallow our pride and our nervousness and go because we know it's what's best for our health.  Being forced to do it as part of a search, however, is a particular kind of awful that I think men might guess at but only women truly know.  It's hard enough to give up enough control of your body to have an exam at the doctor's office.  Having someone take that control is traumatizing.

Which brings us back around to my earlier point:  pain and suffering is a real thing.  The city is not just being punished for what they did to these two women, they are being made to compensate them for the real, non-monetary effects of the trauma.  I don't know what post-traumatic stress symptoms these women had, but I can't imagine they didn't have any.  While you may not be able to put a price tag on that in terms of lost wages or doctor's bills, it was real.  That's why the law allows for awards for pain and suffering in the first place.  It's not possible to make people whole after something like this.  We can't untraumatize them.  But we, as a society, have decided that they deserve to get something nice to compensate for the awful.  Twenty thousand dollars, under the circumstances, seems reasonable to me.

The United States Supreme Court agreed today to hear an appeal of a $5 million verdict against a number of members and clergy from Westboro Baptist Church of Topeka, KS.  The case stems from the church's sponsorship of demonstrations at the funerals of servicemen and -women who have been killed in Iraq or Afghanistan.  Their church teaches that God is punishing the United States for tolerating homosexuality, and that these casualties, the deaths on 9/11, and a number of other things are the result of this tolerance.  This particular case was brought after the group picketed the funeral of Lance Cpl. Matthew Snyder with such signs as "Thank God for Dead Soldiers."  The family sued for for emotional distress and invasion of privacy and won.

I should say at the outset that I find the teachings of Westboro Baptist Church completely repugnant, and I in no way wish to appear to defend what they did.  Whether or not their actions were protected by the Bill of Rights, they were incredibly offensive.  I also don't want to in any way appear to say that having these people show up at your loved one's funeral is a good thing, or even a neutral thing.

What I wonder, though, is how much emotional distress this protest actually caused.  I think we can probably agree it is not zero.  People processing a traumatic loss find comfort in some things and difficulty in others, and this definitely caused difficulty.  There is no question that the funeral would have been a better, more private, more tasteful event had the protesters not been there.

At the same time, however, this family was in a tremendous amount of emotional distress to begin with.  They were angry, they were in shock, they were undoubtedly a mess.  I have no doubt that the protesters completely enraged them, and I don't blame them one bit.  The question is, how much did the protesters make their emotional states worse, versus how much did they simply provide a really obvious and convenient target for those emotions?

I am sorry Lance Cpl. Snyder died.  I am sorry that these horrible people decided to picket his funeral -- they shouldn't have.  In the end, however, Snyder would be dead whether they showed up or not.  That would be awful, whether they showed up or not.  And that part isn't their fault.