The Right to the Pursuit of Happiness

“Pain" and "suffering” have become dirty words in America. Through an artfully constructed, decades-old, public relations campaign lead by the insurance industry and its allies, "pain and suffering" has become a phrase that the American public now subconsciously associates with "malingering,” and “exaggeration.” As a result, many people have no problem with the Republican proposal to place a $250,000 cap on non-economic damages in medical malpractice cases since it would only compromise damages for harms that fall within the category of “pain and suffering” while allowing economic damages to remain intact. The current effort for a federal cap on damages will apparently fail but the issue is not dead as caps on damages remains a primary goal of the insurance and medical profession tort reformists.

Is severely restricting compensation for non-economic harms consistent with the core values of our society? To consider this question, we have to move beyond thinking about non-economic damages in terms of “pain and suffering”, both because of the bias the term triggers and the fact that it does not fairly represent the category of harm that the insurance industry and the Republican Party seek to marginalize.

So let’s use "the pursuit of happiness". It’s a more comprehensive and accurate term for the important intangible things patients lose in medical malpractice cases , in addition to losing the ability to earn money. For example, if due to medical negligence you are left with severe pain in your fingers that prohibits you from earning a living with your hands it is a terrible economic loss. But if the severe pain in your fingers also prevents you from playing the piano or the guitar - something you have done on a daily basis your whole life - and you can no longer play catch with your children, play golf or tennis or football or baseball with your friends and you cannot squeeze the hand of your loved one, the pain itself is really just a small part of the picture. The more important loss is how the pain that should never have been interferes not only with your ability to earn a living but also with your ability to engage in those activities that bring you peace, pleasure and happiness in your life.

Are not the workplace loss and the pursuit of happiness loss of equal importance? Do we not in our country value the freedom to pursue happiness as much as we value the freedom to make money? And what is the ultimate goal of work? To provide for our basic needs, of course, but is it not also to provide us with the means to enjoy life. What do we cherish the most? Is it our Mondays through Fridays or our weekends, when we can chose to do what we want to do that is of interest to us and provides us with personal happiness?

The importance in our social values of our right to pursue happiness is demonstrated by its specific reference in our Constitution---the right to “life, liberty and the pursuit of happiness”.

How is it that a value our Founding Fathers felt was important enough to recognize in our Constitution could become so cheapened that today it only warrants a $250,000 price tag if it is completely and wrongfully taken away from us?

As Fagan said in Oliver, “I think I better think this out again.”