Loading

I'm Lovin' It: McDonaldization of Medical Malpractice Law

Who?

Before George Ritzer, there was social theorist Max Weber who introduced the idea of rationalization as the replacement of historical practices with new values and traditions. Weber had a point: there is a distinctly emotionless technological era upon us. However, in his novel The McDonaldization of Society: Into the Digital Age (10e), sociologist George Ritzer points out the process by which the industries we know and love are becoming more efficient, calculable, predictable, and controllable. While the tenets of rationalization could very well be a quantifiable manifestation in “anti-humanism,” they serve to explain the changes in the legal industry.

What?

Ritzer illustrates the progression of rationalization through McDonalds, the fast-food giant after which his theory is named. Efficiency “[optimizes]” the production and product for both the employee and the client, respectively. Calculability quantifies the fee-for-service capitalist model, under which quantity is often prioritized over quality. Predictability assures uniformity over time and across the world, or in this case, the United States. Lastly, Ritzer defines control as employers' implicit management of employees’ procedural day-to-day.

And while Ritzer’s practical application of rationalization is in the fast-food industry, there is not a modern industry untouched by its effect. Rationalization is not the pot of gold at the end of the consumerist rainbow. Rather, Ritzer suggests that rationalization is the very circumstances under which the rainbow can exist. That is, rationalization gradually enables the processes of industry to increase efficiency and reduce costs.

When?

Circa 2300 BCE, medical malpractice was acknowledged by Hammurabi’s code as a legal wrong.

While medical malpractice has been a “crime” per-sé for centuries, the legal response has changed over time, medical malpractice law becoming a specialized career. Upon its conception, the law has been a solution to conflict. However, in recent years, practicing law, especially as it relates to the medical field, has become far more contentious.

Medical malpractice law was bound to modernize because of its inherent susceptibility to Ritzer’s four tenets of rationalization: efficiency, calculability, predictability, and control.

Where?

In 2017, the University of Chicago led a study about medical malpractice; the results of the survey indicated that 41% of Americans believe that their healthcare providers made “medical mistakes.” The most common incidences of medical negligence in the same study included, but was not limited to, diagnostic errors, surgical errors, and prescription drug errors.

In 2020, the same researchers found that medical negligence most commonly occurs in the ICU, emergency departments, and operating rooms. 73% of patients who reported medical mistakes reported they suffered consequent injuries. Extrapolated, it is possible that “millions” of people suffer injuries caused by medical mistakes in the U.S. each year. Despite this, few people research the resulting medical malpractice lawsuits.

Why?

How?

Efficiency

Ritzer suggests that efficiency is a result of uniformity. Due to the inherently case-by-case nature of medical malpractice defense law, the legal process can take up to 4 years. There is evidence to suggest that rather than product (i.e., case) uniformity, process uniformity has begun to develop. “Institutional imperatives” are the means to the end of the problem-solution model like, for example, maximizing caseloads while minimizing input. Law as an industry includes producers (i.e., legislators and attorneys) and consumers (the public and individual clients), both of which are actors in the legal process. Within the medical malpractice process, however, there is a third actor: physicians.

Calculability

The cost of indemnity payments and defensive medicine together—by one recent estimate— is over $50 billion (2-3 percent) per year. However, defensive medicine has potential to reduce healthcare spendings “under the right structure” of the liability rules currently in place. If and when physicians have a sensitivity to medical malpractice law under which each party has an understanding of the legal and medical implications of the law, there is, again, potential to affect the connection between defensive medicine and healthcare costs. With rising healthcare costs, medical malpractice case costs have also increased— increasing employee compensation and client satisfaction.

Predictability

Like calculability, predictive models rely on potential. Linguistic resources have potential benefits in both artificial intelligence and law because differences between legal systems, languages, or traditions, as they stand, can prevent the adoption of research outcomes. Through AI, case outcomes can be predicted. In databases, the cases from the same contexts cluster. This can be expected because they come from the same jurisdiction, are written in the same language, and deal with similar topics. Predictive AI models are increasing the efficiency of the legal system through accessibility to such databases.

Control

Technology is a double-edged sword for the field of law. On the one hand, the fastest increasing cost for law firms is technology. On the other hand, due to its expensive nature, firms often wait until the last minute to make the investment, often at the expense of valuable data. Though technology is reducing the inefficiencies in law and increasing safety (i.e., reducing data loss and increasing privacy), it is displacing some lawyers. However, this displacement has been described as a “trickle” and not a “flood.”

So What?

Social need, whether on a public or individual basis, drives the “assembly line [of law].” Three descriptive factors include: population, urbanization, and industrialization. The larger the population with more people concentrated in urban areas, and the higher levels of industrialization introduce a greater societal need for law. The greater the need, the more the medical and legal processes will rationalize.

In Conclusion...

Ultimately, rationalization has accomplished a socioeconomic and philosophical undertaking of medical malpractice law as it relates to Ritzer’s four tenets: efficiency, calculability, predictability, and control.

"You have already learned millions of bits of information. Think about all you know about your family, your friends, different products, and how to get around town. These constitute only a small sample of all you have learned. You should never think you can’t learn because you are doing it literally all the time." Terry Doyle and Todd Zakrajsek, The New Science of Learning 2019

Credits:

Created with images by steheap - "Stack of 100 dollar bills with illustrative coronavirus stimulus payment check and alarm clock to show delay in receiving money" • pathdoc - "Happy man in glasses looking up with light idea bulb above head" • radachynskyi - "Missed items are seting in the colorful wooden cube puzzle on the brown table. Geometric shapes on a wooden background." • Freedomz - "Male lawyer and professional business woman working and discussion having at law firm in office" • Mangostar - "Hand of businesswoman pointing at USA map on paper" • adrian_ilie825 - "Boost business performance by increase quality, efficiency and speed and save costs " • gustavofrazao - "Predictions written in search bar on virtual screen" • Prostock-studio - "Social distancing in public place, disease prevention during quarantine. Meeting and reporting on project or team building by employees and boss" • Nuthawut - "Flat lay or top view of black pen with calculator on vivid yellow background table with blank copy space, math, cost, tax or investment calculation" • Elnur - "Businessmen supporting thumbs up gesture" • wladimir1804 - "Inequality Social Business Concept. Society Injustice." • radachynskyi - "The concept of rational and irrational thinking of two people. Heads of two people with colourful shapes of abstract brain for concept of idea and teamwork. Two people with different thinking."