HLS Professor Richard Parker ’70, a constitutional law scholar and a populist, reflects on a life-changing event seven years out—what it has altered and what it has not
Q: What happened?
A: This is an anniversary! Seven years ago I walked into the hospital for surgery. A cervical decompression and fusion, it was supposed to help me keep on mountain hiking. In the recovery room, I woke up paralyzed. I won’t walk again. I’m a tetraplegic. It takes me, with my aides, four hours total to get in and then out of bed.
Other effects?
Called “complications.” Better not list them. A short list: infections, hospitals … so more infections, more hospitals …
How has that affected your teaching?
I haven’t missed a scheduled class. I love teaching. I’m lucky.
What about the rest of your work?
Due to the sit-down strike by my hands, it’s pretty hard to write.
What have you learned? Let’s start with life as a disabled person.
I don’t identify as “disabled.” It’s a matter of attitude. The keys for me, I suppose, are patience (something new), a rebellious mindset (something old) and denial (a direct antidote to despair).
You sued. What about that?
A long story. Before, I was skeptical about medical malpractice lawsuits and tended to favor “tort reform”—without knowing anything about it. Then, shortly after my paralysis, three colleagues came to my hospital room and urged me to get a lawyer. I did.
And?
We launched two suits—one against the surgeon, the other against the company that was supposed to “monitor” spinal signals electronically throughout the operation.
Take the second lawsuit first.
It turned out that almost no monitoring was done. There was no doctor observing incoming data in real time; there was no recording of data during most of the procedure; what records existed were, in large part, destroyed; and the employee in immediate charge lied under oath.
You must have won that one.
We settled. But the company twice recently had to pay big fines for overcharging Medicare and claimed to be on the verge of bankruptcy. That limited the settlement. The hospital, I understand, went right on doing business with that company.
What about the other suit?
After a grinding delay of four and a half years—there’s a special barrier to malpractice suits—we went to trial and we lost. We lost to an insurance company affiliated with Harvard.
Why?
I guess the jury bought the argument that the surgery was “a success” and that the outcome was “a tragedy” without explanation (a theory of “immaculate causation”). But the burden, of course, was ours. No “res ipsa loquitur” in Massachusetts malpractice lawsuits.
What lessons do you draw? And how do they relate to your thinking about your own field, constitutional law?
The threshold question in both contexts is: Whom, if anyone, should we most distrust? There are, I think, three possibilities. Take them in order of ascending significance.
There’s a modern legal tradition of distrusting juries on account of their supposed prejudice, ignorance, susceptibility to emotion, or whatever. The law of evidence—limiting a jury’s access to raw material with which to make a common-sense judgment—is partly based on that distrust.
But distrust supposed to cabin prejudice may itself be rooted in prejudice. And prejudice is not all the same. Some kinds are very bad.
The distrust of juries is a prejudice against ordinary people—against ordinary people as self-governors. In a democracy, that is an especially odious, dangerous prejudice—one that has long infected constitutional law as well.
Who’s next in line then?
Lawyers. The plaintiffs’ bar is the butt of the case against malpractice suits. However, that argument is misdirected.
Compare the number of malpractice suits—and the number of successful ones—with estimates of culpable medical “mistakes” (small fractions). The “mistakes” are the problem. It’s not lawyers who make the “mistakes.” And it’s not plaintiffs’ lawyers who cover them up.
In constitutional law, there’s distrust of lawyers, too. Most prominent has been Justice Scalia’s claim that orthodox values in elite law schools, among “tall-building lawyers,” and in the ABA influence his “patrician” colleagues. I thrill to his populist argument, but, taken alone, it’s too narrow.
His colleagues often imagine themselves as transcending mere advocates. Often they—sometimes even the justice himself—have acted as though they were our governors, as though they are entitled to rule because they are more enlightened than mere voters. In that attitude, they’re part of a much broader professional class. That is the constitutional danger to democracy now.
So, who most merits our distrust?
The wielders of predominant power to do harm. “Predominant” in that they are insulated from criticism and control, especially by the voters.
In constitutional law, ask whether there is such a power. Not because “all power corrupts,” but because the exercise of all power produces bad results sometimes, sometimes culpably, and because the instinct of most of us is to hide our “mistakes” and so perpetuate them. Those with predominant power can get away with it.
In a malpractice case, it’s the insurance-hospital-medical complex. Why do we take it for granted that juries shouldn’t be told that an insurance company is on one side? Why in Massachusetts are hospitals protected, by statute, from pretty much all liability? Why do we assume that the outcomes—even the existence—of medical “peer reviews” subsequent to a “mistake” should be kept from juries? And even from patients themselves?
Another powerful group that does a great deal of good, that is likewise committed, as a group, to doing good, but that makes culpable “mistakes” and often seeks to conceal them, is not so cosseted. I mean the police.
Has this experience jaded you as a law teacher?
No. I’m more or less the same person.
I’ve learned about another niche where law is constrained by political and cultural power. Still, everything we do is constrained by something or other. That shouldn’t stop us from asserting ourselves within those constraints, or from fighting against them. I love legal argument as much as I ever have.
It is a wonderfully stylized sort of politics—even democratic politics.