With Liberty and Justice for Some: The American Civil Court System

Back in 2016, my partner was diagnosed with colon cancer. It was a struggle, but he got lucky. It was caught incidentally, treated aggressively, and thankfully, he is in remission. But the process wasn’t without trauma. After surgery and chemo, a routine scan found a growth in his liver. He was sent for a scope to check for gastrointestinal tumors. When it was done, the doctor came out bragging about how far he stretched my partner’s tiny esophagus to do the scan, even though we were unaware that extensive stretching would be part of the procedure.

Three days later, my partner could barely talk from the pain. The stretching caused a massive hematoma in his chest. He was in the hospital ten days. The attending said she’d never seen anything like it; everyone openly lamented that his pain had to be excruciating. This was quickly followed by a misdiagnosis of primary liver cancer, which came with radiation, some pricey surgery and about 18 months of mental anguish.

None of this was necessary. The growth was benign and still is.

Most of our loved ones who heard this story had the same reaction: “Sue them!” I mean, with a lawyer in the family and such obvious malpractice it’s a foregone conclusion, right? But even with our privilege, our education, and a law license, no suit was ever going to be filed.

Why? Isn’t this what the justice system is for? To right wrongs? Yes. But only if you can access it.

Sometimes, the law itself is a barrier, erected on purpose to keep people out. In our case, the Indiana Medical Malpractice Act made filing a lawsuit nearly impossible. Here, you’re not allowed access to the court system until you plead your case in front of a panel of doctors in the same specialty as the defendant. They issue a report (it favors the doctor most of the time) that becomes evidence at trial, and the doctors on the panel can be called as experts. The panel inquiry and report become a barrier, as do the associated costs. But even if the panel’s report ultimately favors the patient, they still have to overcome the barriers inherent in every civil case in the legal system.

Sometimes, damages are a barrier. In our case, my partner wasn’t maimed or killed. He didn’t lose a limb. All he lost were wages, time, dignity, and all of his paid vacation that year. In exchange, he received surgeries, pain, and the trauma of being wrongfully told that even after treatment that would make him radioactive, he was unlikely to survive. There was not enough meat left on his bones, both literally and figuratively, for any attorneys to even call us back. Even 40% of $50,000 isn’t worth the time of a lawyer to represent us for the panel investigation and a trial.

Even worse, much of the time, access to the civil justice system is impeded by things that have nothing to do with the case itself. We are a family of privilege. We have access to the internet and phones. We are educated enough to know who to call, and if we don’t, we have privileged friends who do. We have family support, reliable transportation, and professional clothing. We know how to speak and how to be heard.

And we will never see the inside of a courtroom for this fairly obvious injustice, just like most people who are legitimately wronged.

In some cases, that’s probably OK. Not every case that could go to court should. And we don’t need to clog up the court system with every potential filing.

But how many people never see the inside of a courtroom because they lack basic access to it? Or because they simply have no faith that justice will be served? Studies show that minorities and the poor largely won’t even try to access the courts; about 75% of poor Americans won’t seek legal help, and the numbers are even higher for poor Black Americans. When they do have a civil legal issue, low-income Americans see a resolution only about 14% of the time. Data shows that beyond the lack of basic resources, many Americans are also impacted by a distrust of the criminal justice system leading to little faith in the court system as a whole. Even though the civil and criminal justice systems work in completely different ways, distrust in one can lead to distrust in the other. Why waste time trying when you know you’ll never win?

If you’ve never been a party to a lawsuit or worked in the system, you might not realize the impact that access to justice has on poor America. The loss for my family ended once my partner healed — there were no compounding financial complications. But in marginalized communities, financial losses are always magnified. If your landlord won’t fix the heat in your apartment, and you can’t get a judge to make him, what are your options? Take the little money you have and move? What if you can’t find housing? How much work can you afford to miss? Meanwhile, when it’s cold at home, does your child’s asthma worsen? Does this one problem end up in homelessness, job loss or significant illness? For some, it very well may.

If I, as a white, educated, lawyer can’t access the system, how can someone of lesser means? Could you? If you were wronged tomorrow, where would you go and who would you call? Would you even bother?

Justice for some, but not for all. It’s the American way.