Death caused partly by malpractice and partly religious refu -Reply

[Alan Gunn]

  As for assumption of the risk:  Assumption of the risk tends to mean one
of two things. It was, in the past, often used to describe a particular kind
of contributory negligence: unreasonably ignoring a known danger. In the
many states that have adopted comparative negligence it makes little or no
sense to treat this kind of assumption of the risk differently from other
kinds of comparative negligence.  Another form of assumption of the risk is,
however, alive and well.  It is a sort of freedom of contract notion, so
that if I want to skydive badly enough that I am willing to give up my right
to sue the skydiving school for negligence, an agreement to that effect
should be given effect.  Sometimes the "contract" can be implied, rather
than express.  For instance, if I desperately need to get to the hospital
and the only way I can do this is to talk my neighbor into driving me, even
though the roads are icy and he has no snow tires, I probably ought not to
be able to sue him if his car hits a tree on the way to the hospital.
Allowing my suit would (theoretically) mean that I wouldn't be able to get
the much-needed ride.  As Tom Berg suggests, neither of these cases
comes close to describing the case of someone who refuses treatment for
religious reasons; the appropriate defense there is failure to mitigate.
  Like Dan Conkle, I find the failure to mitigate argument to be a tough
case.  Doctrinally, at least, it seems that the plaintiff should win: If the
plaintiff had been unable to undergo an operation for some non-religious
reason, such as having a constitution too weak to stand the strain of an
operation, the "eggshell skull" doctrine would kick in.  Tortfeasors are
liable for the harm they do to particular victims, not to the harm they
would have done to an "average" or "reasonable" victim.  On the other hand,
though, they are liable only for the harm that they actually do: if a minor
injury leads to death because the victim, for whatever reason, refuses
treatment, it seems plausible (and fair) to say that the death was caused by
the victim's conduct, rather than (just) by the tort.  Freedom of religion
is a right against the government, not a right against one's fellow citizens
individually.  Saying that the plaintiff should have a right to choose not
to undergo the operation does not lead inevitably to the conclusion that the
tortfeasor should bear the financial consequences of that decision.  Is this
any different, in principle, from saying that all restaurants must serve
kosher food?  Or that kreplach can't cost more than a Big Mac?
  It does seem plain that a very common way of dealing with the
problem--asking the jury to decide whether the plaintiff's refusal to have
the operation was "reasonable" and allowing it to "consider" the plaintiff's
religious beliefs in determining "reasonableness"--is wrong.  But why not
just ask whether the plaintiff's decision was "voluntary," and, if it was,
treat decisions made for religious reasons the same as any other kind of
"voluntary" decision?
   Query whether the answer to this question should vary depending on
whether the defendant attacked the plaintiff with an axe or just bumped the
plaintiff in the aisle of a supermarket.  "Tortfeasor" covers a lot of
ground, and not all of those found "negligent" by a jury really did anything
wrong.  Under some comparative-negligence regimes, a defendant must
pay even though the plaintiff was more at fault than the plaintiff.
Consider this: defendant is 10 percent negligent; plaintiff is 90 percent
negligent; most plaintiffs would have suffered only a minor injury, but the
particular plaintiff dies after refusing treatment.  If wrongful-death
damages are $1,000,000, defendant has to pay $100,000 if the mitigation
defense is not allowed.  It is one thing to say that the law should not
force the plaintiff to get treatment; quite another matter to say that the
defendant must foot the bill.  Indeed, making the defendant pay seems to
give some legitimacy to the argument that the plaintiff should have to
undergo the treatment; this resembles the now-common argument that things
like motorcycle-helmet laws do not infringe the rights of motorcyclists
because the rest of us end up paying their bills if they don't wear helmets.
A sure way to undermine all sorts of freedoms is to make persons other than
those who exercise them foot the bills.

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Alan Gunn
Notre Dame Law School