Pain and suffering: marital malpractice?

Margaret Somerville
Originally published as:
"Pain and suffering: marital malpractice?",
The Globe and Mail, July 1, 2006, A17
© Margaret Somerville
Reproduced with Permission

On the law books, we have "no fault divorce" in Canada. In the 1985 Divorce Act, Parliament ruled out fault as a consideration for judges in either granting a divorce or deciding on the property settlements and financial obligations that flow from divorce.

But commentators and family lawyers are now arguing whether the Supreme Court of Canada in the Leskun v. Leskun ruling recently signalled a return to fault as a relevant factor in divorce. The court acknowledged that Parliament has ruled out fault, but said there is "a distinction between the emotional consequences of misconduct and the misconduct itself."

Mr. Leskun's adultery was irrelevant. But the consequences of it, his ex-wife's emotional devastation that made her incapable of working, were relevant to ordering Mr. Leskun to continue to pay her support.

Is this fault in emotional-devastation clothing? Can we ever really eliminate our instinctual feelings that "wrongdoers" should pay? Is that response based in moral intuition?

Fault is a moral concept. The relation between morality and law is complex, the stuff of law students' nightmares. Is the court recognizing that even if the law treats infidelity as a purely moral issue (or, perhaps, non-issue), its consequences can count legally? Is it acknowledging that the anguish created by infidelities and divorce may be worth some kind of compensation, though they're not overturning "no-fault," per se? Is the decision just? Would a woman be equally likely to be ordered to pay a man in similar circumstances to Ms. Leskun? Or is there a presumption, even if unstated, that men are more emotionally resilient?

As I was pondering these questions and others, it occurred to me we might gain some insights by looking at medical malpractice suits and how the law operates in that context, especially in relation to awarding damages for compensation for injury.

Divorce cases and medical malpractice cases have many similarities that are not obvious on the surface. The husband-wife relationship and the physician-patient relationship are both ones of trust and "the utmost good faith." To greater or lesser extents, they are "intimate" relationships. The people in such relationships bond to each other through positive emotions one or other form of "love." Relationships between intimates are primarily governed by ethics.

When such relationships break down, the breach of trust experienced by the "victim" causes the positive-content emotional bonding ("love") to turn to equally powerful negative-content bonding hate. Love and hate are not opposites in terms of emotional bonding; rather, indifference is the opposite of both. The relationship between intimates becomes one between strangers. Such relationships are governed by law, that is, through a divorce or malpractice case.

In both kinds of cases, the injured party wants public recognition of the wrong done to them and public attribution of blame to the wrongdoer by an authority figure the judge. It's true that often people also want money, but in my experience with malpractice cases, that is frequently secondary to the non-monetary kinds of remedies sought. I've had people say that even though it will cost them more to bring a malpractice case than they could ever hope to win in damages, they still want to do so.

They want formal, public vindication, clear recognition that a wrong was done, and the record set straight.

Deep anger that can't be dissipated in physically non-violent ways is dangerous. When the Australian Family Courts tried to make divorce actions less adversarial by having judges dress in street clothes and sit with the divorcing parties, rather than at a bench, several judges were attacked and injured by angry litigants.

So has taking fault out of divorce meant that it can no longer function as an affirmation of the wrong done to one party by the other and, in doing so, dissipate some of the hatred and anger? Has a battle over support payments replaced the battle over divorce as a way to access these other functions that a divorce case used to fulfill?

We can also ask what the principles governing the award of damages in a medical malpractice suit might tell us about the award of support payments, if we applied them to divorce. The attribution of liability, whether that is done on the basis of fault (as it is in Canada), or "no fault" (as is true in New Zealand, for example), is a separate matter from the kind of damages that will be compensated and the amounts awarded.

The law is much more at ease, traditionally, in awarding damages for physical or material injuries, than for non-physical or emotional injuries nervous shock, pain and suffering, loss of enjoyment of life, loss of expectation of life, loss of companionship unless the latter were consequent to physical injury. So "pure" nervous shock that is, emotional injury not attached to physical injury to the person or their property was not traditionally compensable. That has changed, but the rules governing its recovery are more stringent than for physical damage. The law has always been concerned about false claims and a flood of litigation in such inchoate areas, but, with modern psychiatric evidence available, is much less so today than in the past.

The rules governing recovery also vary, depending on whether the injury was intentional or unintentional. All damages are recoverable when the injury is intentional; only reasonably foreseeable ones, when it is unintentional. The exception in the latter case is the "eggshell skull" or "take your victim as you find her" rule. If the victim is abnormally susceptible and, as a result, suffers damage well beyond what was reasonably foreseeable to a normal person, the wrongdoer must still pay in full. The courts have extended this rule to the "eggshell psyche" victim. Ms. Leskun appears to be such a victim.

Aggravated and punitive damages are rarely awarded in medical malpractice cases. These are damages in addition to what is needed to fully compensate the plaintiff. Aggravated damages look to the excessively harmful effect of the wrongdoing on the victim. Often, an intention to do harm, or recklessness in that regard, is present. Punitive damages are meant to punish the wrongdoer and provide a warning to others not to do likewise. Mr. Leskun may well feel he is being treated in that way, especially as media commentaries have described the case as a warning to "married cheaters."

The "benefits set off" rule means that any benefits the victim receives as a result of the wrongdoing are taken into account to reduce the damages awarded. The "mitigation of damages" rule means that the victim must take reasonable steps to mitigate the damage and failure to do so can reduce the award. The same is true of spousal support: The Supreme Court made clear that if Ms. Leskun could work, but refused to do so, her award would be reduced.

Finally, we've learned in medical malpractice cases that when health-care professionals or institutions admit that they've made a mistake and say they're sorry, they are much less likely to be sued for medical malpractice.

Might that be a lesson for divorce?

Ethicist Margaret Somerville holds professorships in both law and medicine at McGill University.