A Case of Wrongful Life? (Notes on Facts and Values)

Old joke: A doctor tells his patient, "I'm sorry but you only have six months to live." The patient takes the news stoically and asks the doctor how much he owes him. "Five thousand dollars," the doctor says. "But I'll never be able to come up with that much money in six months, Doc!" "Okay, then," says the doctor, "you've got a year."

I said it was an old joke, not a good one. Meanwhile, while I look for better material, John Brandrick, 62, was told two years ago that he had terminal pancreatic cancer and only months to live. Brandrick quit his job, sold his possessions and spent what he thought was his brief, remaining life taking vacations, eating in swank restaurants and such. A year later, his doctors revised their diagnosis. Brandrick was suffering from non-fatal pancreatitis.

Oops!

The AP reports:

"My life has been turned upside down by this," Brandrick said. "I was told I had limited time to live. I got rid of everything — my car, my clothes, everything."

Brandrick said he did not want to take the hospital to court, "but if they have made the wrong decision they should pay me something back."

The hospital said there was "no clear evidence of negligence" on its part.

"Whilst we do sympathize with Mr. Brandrick's position, clinical review of his case has not revealed that any different diagnosis would have been made at the time based on the same evidence," the hospital said in a statement.

Personally, I think the mere fact that the hospital used "whilst" in its denial is pretty clear evidence of negligence. No, not really. It's an interesting case, though. Here's this poor guy in his sixties, naked and carless, expecting to shuffle off this mortal coil any moment now, probably stuffing himself with fatty foods, gadding about in cabs instead of taking the Underground and tipping big all the while when suddenly his imminent demise is snatched from his grasp no doubt just as the money was running short.

Does he have any legal recourse against the hospital? I haven't a clue. Aside from not knowing how the British courts deal with the various potential tort or contract remedies that any first year law student could think of scribbling down on an exam together with all the likely defenses to those causes of action, the more interesting question is whether he should have some sort of legal remedy here.

I don't know whether there is settled case law on this particular situation, but something like it must have happened somewhere before and it would be mildly interesting to know how a court or jury trial resolved similar such situations. Aside from being interesting at that level, however, it is also interesting as a good example (regardless of what, if any, law there is on point) of how knowing all the facts of a situation do not necessarily resolve a dispute arising from that situation.

Moreover, it isn't just a straightforward case of the difference between facts and value judgments, either. It is a case of that, to be sure, but of more as well. There are also applicable legal rules or at least legal rules that we want to say are not "mere" value judgments and that should apply even though we may not know how to apply them. Learning the formal elements of negligence, for example, is easy: the defendant must have owed a duty to the plaintiff, must have breached that duty and that breach of duty must have proximately cause the plaintiff harm. Of course, it can get much more complicated than that, "proximate" is a special bit of legal jargon and so forth, but that's the nutshell version.

Even so, learning the mere rules tells you next to nothing about how to apply them in a particular situation, how they should be applied in this situation. And if we face a new and somehow different set of facts from the facts to which the rules have previously been applied, then we must decide which facts are relevantly similar and which are relevantly different from those prior cases and how much weight to give to those similarities and differences. Herewith, the late philosopher John Wisdom approaching the matter a bit differently:

In courts of law it sometimes happens that opposing counsel are agreed as to the facts and are not trying to settle a question of further fact, are not trying to settle whether the man who admittedly had quarreled with the deceased did or did not murder him, but are concerned with whether Mr. A who admittedly handed his long-trusted clerk signed blank cheques did or did not exercise reasonable care, whether a ledger is or is not a document, whether a certain body was or was not a public authority.

In such cases we notice that the process of argument is not a chain of demonstrative reasoning. It is a presenting and representing of those features of the case which severally co-operate in favour of the conclusion, in favour of saying what the reasoner wishes said, in favour of calling the situation by the name by which he wishes to call it. The reasons are like the legs of a chair, not the links of a chain. Consequently although the discussion is a priori and the steps are not a matter of experience, the procedure resembles scientific argument in that the reasoning is not vertically extensive but horizontally extensive – it is a matter of the cumulative effect of several independent premises, not of the repeated transformation of one or two. And because the premises are severally inconclusive the process of deciding the issue becomes a matter of weighing the cumulative effect of one group of severally inconclusive items against the cumulative effect of another group of severally inconclusive items, and thus lends itself to description in terms of conflicting ‘probabilities’. This encourages the feeling that the issue is one of fact – that it is a matter of guessing from the premises at a further fact, at what is to come. But this is a muddle. The dispute does not cease to be a priori because it is a matter of the cumulative effect of severally inconclusive premises. The logic of the dispute is not that of a chain of deductive reasoning as in a mathematical calculation. But nor is it a matter of collecting from several inconclusive items of information an expectation as to something further, as when a doctor from a patient’s symptoms guesses at what is wrong, or a detective from many clues guesses the criminal. It has its own sort of logic and its own sort of end – the solution of the question at issue is a decision, a ruling by the judge. But it is not an arbitrary decision though the rational connections are neither quite like those in vertical deductions nor like those in inductions in which from many signs we guess at what is to come; and though the decision manifests itself in the application of a name it is no more merely the application of a name than is the pinning on of a medal merely the pinning on of a bit of metal. Whether a lion with stripes is a tiger or a lion is, if you like, merely a matter of the application of a name. Whether Mr. So-and-So of whose conduct we have so complete a record did or did not exercise reasonable care is not merely a matter of the application of a name or, if we choose to say it is, then we must remember that with this name a game is lost and won and a game with very heavy stakes.

(John Wisdom, "Gods," reprinted in Philosophy and Psycho-Analysis, 1969.)

We would like to say, or at least some of us sometimes think we would, that facts and values and the rules we use to apply the latter to the former have some sort of determinate and separate logic to them -- "No ought from an is!" or "Ought implies can!" we might proclaim. If we are very sophisticated indeed, perhaps we pull out some bit of philosophical legerdemain like supervenience to bridge our tidy looking dichotomy between facts and values. At the end of the day, however, whether we come equipped with theory or not, we must decide whether the hospital was negligent or breached some contractual duty and whether Mr. Brandrick's spending-spree was proximately caused by a breach of some such duty or implied promise and thus constituted harm to him now that he will likely live much longer and so forth. That, in turn, requires the application of rules which are neither facts nor values or, if you like, are both.

How should we decide?