Rehabilitating tort compensation

Rehabilitating tort compensation

Pryor, Ellen S

INTRODUCTION

What could be more traditional than discussing the compensatory function of tort law? Yet no subject is more properly within the domain of a symposium on the “new negligence.” Tort’s compensatory role remains on the cutting edge of scholarly and doctrinal developments-and with good reason. The tort and liability insurance dialogue of the past twenty-five years has given us an enriched understanding of tort law’s “compensation” aim, from both empirical and theoretical viewpoints.1 Still, great disquietude remains about tort law’s theoretical or functional strengths as a compensatory system.2

Indeed, the intensified interest in tort’s compensatory function has made clear that the term “compensation” is not self-defining. What it means to fully compensate a plaintiff can depend on whether one approaches the question from an efficiency perspective, a corrective justice view, or some other normative stance. Tort theorists currently offer a number of answers to this question, including: law and economics theories that compensation should match the level of insurance that a rational individual would purchase ex ante in anticipation of an injury;3 Professor Heidi Li Feldman’s neo-Aristotelian argument that compensation should be linked to the plaintiff’s ability to flourish post-injury;4 and analyses that consider the commodification concerns that arise if we equate injury with money.5

Meanwhile, in day-to-day tort litigation, jury instructions contain very little suggesting a particular normative account of full compensation. Of course, jury instructions itemize the categories of compensable damages, such as lost wage earning capacity and pain and suffering.6 As to economic damages such as medical expenses and lost earning capacity, juries receive some guidance about the measurement standards they should employ.7 For impairment, mental anguish, and pain and suffering, juries inevitably are given vaguer standards, such as to “fairly and reasonably compensate” the plaintiff, or to use “good discretion” or “enlightened conscience.”8

Alongside the diversity of theoretical views, and the capacious (and relatively simple) language of jury instructions, one formulation of “compensation” continues to sound frequently: “Compensation” is the payment of a sum of money that will restore the plaintiff to the status quo ante, to the extent that money can do so.9 Tort scholars often make use of this notion,10 and trial and appellate courts also frequently employ it.11 One could hardly say that this is the consensus definition of compensation. But it is certainly a dominant theme in both the theoretical realm and the day-to-day workings of tort law. Indeed, this is perhaps the translation of compensation that appears most often in both tort theory and day-to-day tort practice.

This Article argues that this view of compensation-or paying the sum of money that will restore the plaintiff to the status quo ante to the extent that money can do so-has several core failings that have been noticed too little by scholars and courts. In addition, this Article argues that a different concept of compensation-rehabilitation as compensation-has received too little attention and should become a more dominant theme in tort practice and theory.

Developing these arguments first requires an understanding of the concept of rehabilitation. Part I takes up this task. The main theme of Part I is that rehabilitation is not simply a slice of whatever we might otherwise consider the compensatory loaf. This might seem surprising because under current tort doctrine the availability of “reasonable and necessary medical and rehabilitative expenses” would seem to capture any rehabilitative issues. Part I shows why this conclusion is misplaced. Unlike many treatment issues fitting within the medical-curative model, the definition, measurement, and attainment of rehabilitation require normative judgments about which medicine has no settled answer and is entitled to no final deference.

Part II explains in more detail the core failings of the widely-held view that compensation should be understood as the sum of money that will restore the plaintiff to the status quo ante. The status quo ante approach is troublesome not just because it conveys a goal that cannot be perfectly attained: making a plaintiff whole through money. Rather, the status quo ante approach reflects a fundamentally flawed view of what tort compensation can, and should, do. Notice this approach’s key qualities. First, it is backward-looking: The relevant starting point for measuring compensation is the plaintiff’s pre-injury life. Second, it has a static quality. Payment of settlement monies is a settling of the account, a closing of the claims file, an adieu from the tort system to the plaintiff.

These features create three main problems. First, by using the plaintiff’s pre-injury position as the measurement starting point, the traditional view misses the implications that follow when we realize that the post-injury plaintiff is often a different self than the pre-injury plaintiff. However we choose to think of tort plaintiffs for compensatory purposes-psychologically and physically, as a bundle of needs and preferences, or as decisionmakers operating within certain cognitive and rational boundaries-the post-injury self is often a changed self.

This might seem only to state the obvious: Of course an injury can change a plaintiff, and the very point of the status quo ante measure is to undo that change to the extent money can do so. The point here, though, is different. Precisely because the plaintiff is often changed in ways that will never be undone or reversed, any acceptable compensatory approach should at least provide the relevant actors-plaintiffs, lawyers, claims adjusters, courts, medical providers, etc.-a theoretical, linguistic, and practical framework that allows and promotes understanding of the post-injury person. As this Article will show, the status quo ante measure is often an obstacle to this understanding.12

Second, the static nature of the traditional view needs alteration. The payment of a tort judgment, whether by settlement or after jury trial, no longer marks the end of tort law’s interaction with the plaintiff’s life. In the past twenty-five years, tort law’s payment structure has gained much greater influence over the timing, duration, and control of settlement and judgment monies.13 Any acceptable compensatory approach needs to take account of these crucial developments. The status quo ante approach, as currently enunciated, is simply too thin in this respect.

Third, there is no non-normative account of what it means to return the plaintiff to the status quo ante. Economic analysis yields a different answer than an entitlement lens, and other theories could supply other accounts.14 To be sure, the absence of a non-normative rendition is not reason enough to reject a status quo ante approach. But it does mean that the status quo ante view is not entitled to any deference as a non-normative, or even non-controversial, account.

Part III moves on to consider some of the implications, both theoretical and practical, that follow from focusing on compensation as rehabilitation. Many implications are worth addressing, but Part III’s discussion focuses on four: (1) problems with tort law’s current definition of “medical and rehabilitative expenses”; (2) the role of the plaintiff in the rehabilitation process; (3) the responsibilities of the plaintiff’s lawyer with respect to rehabilitation; and (4) counter-rehabilitative features of tort not already emphasized in the tort literature.

In Part IV, I shift to a specific problem in tort theory and explain how a notion of rehabilitation helps to address that problem, which was best explained in Professor Margaret Radin’s fairly recent essay on the role of compensation and commensurability.15 The problem is basically this: How can an approach to compensation avoid making, at least implicitly, a statement that money is commensurable with terrible personal losses such as reduced life functioning or the loss of a child?16 As Part IV explains, a notion of compensation as rehabilitation avoids this concern, while still affirming the necessity of compensation.

Having outlined the basic points that will follow in developing this Article’s two themes-the inadequacies of the status quo ante and the benefits of a rehabilitative focus-a few caveats are in order. First, this Article does not aim to present rehabilitation as the only theoretical or practical definition of compensation.17 Second, this Article’s arguments are not premised on any of the particular theoretical translations of full compensation-for example, that compensation should equal the level of insurance that the rational individual would purchase ex ante, or be linked to ex ante evaluations of the risk the plaintiff faces. Rather, my hope is that this Article’s two themes will be persuasive and useful from either a general and traditional view (fair and full compensation) or from more specific translations of this aim.

Third, this Article does not argue for specific changes in how juries are currently instructed about compensating the plaintiff. For instance, I do not contend that plaintiffs should receive only the amount of money that can be instrumentally linked to rehabilitation; that a goal of rehabilitation requires cutbacks in traditional awards for pain and suffering, mental anguish, and consortium; or that a plaintiff who, after rehabilitation, is still terribly disabled (perhaps even in a persistent vegetative state) should receive no damages other than future medical expenses.

This last caveat raises a fair question: Why, then, does it matter whether we recognize flaws in the dominant translation of compensation and focus more on the aim of rehabilitation? The pages that follow should provide many examples of why it matters. The point for now is just to dispel the idea that this Article’s arguments require basic changes in how juries are instructed.

I. CONSIDERING REHABILITATION, CONSIDERING COMPENSATION

In the realms of tort theory and tort practice, compensation is predominantly interpreted as making the victim whole by returning her to the status quo ante, to the extent possible, through cash payment. Rehabilitation, by contrast, focuses on the distance between the injured plaintiff and the plaintiff as restored to the maximum functioning possible. Specifically, one definition of rehabilitation is the process of helping the person achieve the fullest psychological, social, vocational, life activity (such as hobbies), and educational potential that is consistent with his or her disability and life plans.18

To explain the key problems with the status quo ante approach and the importance of a more intense focus on a rehabilitative aim, we must first address whether tort’s current conception of compensation adequately includes the aim of rehabilitation. If it does, any rehabilitation goal or concern that matters to tort law is already captured in current doctrine. Indeed, most damages discussions reflect, at least implicitly, the view that rehabilitation is just a subset of compensation, or a slice of the compensation loaf.19 For the most part, current damages doctrines also reflect this view; for instance, rehabilitation expenses are compensable according to the same standards governing medical expenses generally.20 Nonetheless, rehabilitation is different in important theoretical and practical ways from what might plausibly be viewed as compensation. We cannot assume, therefore, that a systemic decision about the shape of compensation, or particular doctrinal standards for compensation, do the necessary work with respect to our rehabilitative goals, whatever those may be.

In recent years, the meaning of compensation itself has become more contested as a matter of theory and doctrine. For instance, economic analysts have argued that appropriate compensation would include only monies for pecuniary losses, which are replaceable.21 From a very different perspective, other scholars have questioned whether tort’s traditional compensatory mandate has the undesirable effect of sending a message that deep emotional losses are commensurable with money and, if so, whether the compensatory package ought to be altered.22 Legislators are asking their own questions about tort’s compensation rationale. Dozens of tort reform statutes now place money caps on nonpecuniary compensation awards.23

This fragmentation over the meaning of compensation has implications for rehabilitation. When the theoretical and practical shape of a tort compensation package takes many forms, it is even harder to assume that rehabilitation will or will not be part of that package. For instance, as this Article will explain later, the compensatory approach suggested by Professor Radin’s commensurability analysis ends up giving short shrift to rehabilitation.24 The status of rehabilitation can be murky under the economist’s optimal compensation package, as well as under the various tort reform cap statutes.

For these reasons alone, it makes sense to view rehabilitation as independent from compensation. When compensation took a typical form in practice and theory, and when rehabilitation was always part of that package, perhaps an independent eye on rehabilitation was less important. Now we can no longer assume that, under all theories and doctrines, rehabilitation counts as part of the compensatory package.

Aside from the increasing contestability of compensation, other reasons support considering rehabilitation as independent from compensation. For example, tort doctrine’s view of rehabilitation as simply a type of medical expense25 reflects and reinforces the view that the definition and measurement of rehabilitation falls within the province of medical expertise. Yet many important issues about rehabilitation fall outside an exclusively medical province and require different normative and policy judgments about, for instance, the rehabilitative outcomes and the measures for them.

The claim here is not that medical treatments (and resulting medical expenses) require nothing but medical expertise. Decisions about undergoing, or paying for, even conventional medical treatments implicate normative judgments by the physician, patient, and payment plan, and rehabilitative decisions require considerable expert medical input. But one can plausibly say that, in general, as we move from one end of the spectrum (treatment under a medical model of injury or disease) to the other (rehabilitation), decisions raise a wider range of normative issues.

Under the medical model of treatment, the selection, definition, and measurement of outcome criteria generally do not pose serious normative or conceptual difficulties. For instance, as to an infectious disease manifested by a high fever and possible brain injury, the medical model has as its objective the correction of the underlying source-fighting the bacteria that caused the infection. Similarly, when a fractured vertebrae is framed in medical model terms, the treatment aim is to fixate the fracture and brace the area for a period of time. In other words, the outcome criterion is either correction or control. Defining the measurement standards for assessing progress, and the goal itself, are normally viewed as matters involving primarily medical expertise. As explained by medical professionals, “[a]ssessment in medical settings usually requires direct observation of a particular behavior and a subsequent recorded observation or judgment of that behavior. Magnetic resonance imaging and blood tests are examples of assessments in which recorded observations are based only on physical or biological” input.26 Thus, when tort law’s compensation directive is to award all reasonable and necessary medical expenses caused by the defendant’s wrong,27 deference to medical judgment about the answer is not troublesome.

Rehabilitation, by contrast, concerns itself less with correcting the underlying etiology than with improving the overall functioning and independence of the person. According to the Institute of Medicine, the simplest definition of rehabilitation is the process of recovery from an injury; at its most complex, rehabilitation refers to the “lifelong process of obtaining Optimal function despite residual disability.'”28 Further, the range between these two extremes includes a wide variety of potential interventions. Regardless of the context, rehabilitation “is the process by which physical, sensory, and mental capacities are restored or developed in (and for) people with disabling conditions.”29

Generally, any stated rehabilitation definition, as well as any measurement designed to support rehabilitative efforts, will rely heavily on some set of functional outcomes, such as cognitive ability, motor skills, range of motion, or speech.30 Thus, even if tort law’s mandate is to award full rehabilitation, implementing this mandate requires normative judgments: selecting and defining the abilities that should be relevant for rehabilitation purposes; selecting the skill level that should be deemed normal or acceptable when measuring those abilities; and accounting for the claimant’s role or responsibility in the rehabilitative process.

Medical rehabilitation professionals do not have non-normative, or even very settled, answers to these issues. Indeed, “[n]o consensus exists about what is meant by ‘rehabilitation,'” and “[t]he meanings of ‘ability to function’ and ‘in a normal or near normal manner’ are elusive at best.”31 This is understandable, given the difference between medical model treatment and any notion of rehabilitation. To illustrate:

“Cure” connotes the possibility of eradicating a disease process . . . . The word cure occurs infrequently in the rehabilitation of persons with disabilities because some aspect of the patient’s neurologic dysfunction is likely to be permanent and will cither represent or come to represent a significant aspect of the patient’s state of being. Furthermore, the overall worth of the rehabilitation effort cannot be judged according to some secular notion of “normalcy” because chronic care therapies: “. . . share an objective to help people accommodate themselves to the chronic illness, which cannot be vanquished or eliminated.”32

Several factors explain the difficulty in defining both the relevant rehabilitation criteria and the ways of measuring them. These include “a lack of consensus on what outcomes should be targeted,” as well as “a lack of theory about how rehabilitation achieves its outcomes and, particularly, the broader question of how people with a disabling condition reconstruct a life that they consider to be of acceptable quality.”33 Not surprisingly, then, a tremendous variation exists in the outcomes or functions that count for purposes of rehabilitation and the scales by which these are measured.34 Rehabilitation and medical professionals must decide whether the relevant outcomes include, for example, home maintenance, sexual functioning, recreational abilities and social skills. In addition, great variation exists among the various measures aimed at identifying and assessing qualities of psychological functioning.35 Decisions about the rapidly expanding realm of rehabilitation-assistive technologies requires value judgments and evaluative opinions about a given person’s needs and appropriate ways to meet them. For instance, as recently as 1975, few assistive communication devices were on the market.36 By 1995, more than one hundred types were manufactured in the United States.37 These devices differ according to many features such as input and access, how vocabulary will be represented, rate of communication and output options. In addition, “[s]electing technology entails matching a person’s needs, communication abilities, and temperament to features of available equipment and then orienting the person and his or her family to the realities and situations of device use.”38 And, despite these important and complex questions, “rehabilitation has a limited tradition of clinical research.”39

Thus, when tort law allows payment for medical and rehabilitative expenses, we cannot assume that deference to professional judgment about rehabilitation will settle normative choices about what “rehabilitation” includes. The meaning of rehabilitation, then, does not emerge, self-evident, from the “compensation” label, medical expertise, or the doctrines and practice of compensation.

Another normative issue relates to the plaintiff’s participation in rehabilitation. Suppose an accident victim suffers injury to several disks in her back. She undergoes surgery to stabilize the area, but continues to experience severe pain and functional limitations after the post-surgical recovery period. She could enroll in a rehabilitation program whose primary goal would be to ameliorate her pain and restore or improve her functional abilities. This program, which costs $10,000, would require six weeks of intensive and sometimes painful physical therapy and strengthening exercises; biofeedback for pain control; and individual, group, and family counseling aimed at reorienting the person’s thoughts and goals around maximizing functioning within possibly permanent limits. Finally, suppose that data from the program thus far suggest a good chance of success, if success is measured according to criteria such as level of pain, non-work functional abilities, and return to work.40

If this person were a claimant, at least several remedies would be possible: paying for her losses if she does not enroll in the program; paying for the rehabilitation program and the residual disability after its completion; or refusing to pay for some or all of her losses if she chooses not to participate.41 All of these could be termed “compensation,” but of course the choice of remedy requires a decision about whether and to what extent a program will defer to a victim’s post-injury decisions.42 Once again, the appropriate programmatic choice does not emerge, self-evident, from the decision to compensate, nor can medical expertise go far in settling the programmatic question.

In sum, when the plaintiff’s situation involves issues of rehabilitation rather than medical model treatment, the “compensation” label actually refers to a number of potential choices-ultimately normative-about the issues just set out. Hence, we cannot use the term “compensation” as though it had some unitary or settled meaning with respect to rehabilitation issues.

II. CONCENTRATING ON REHABILITATION

Having established that rehabilitation is not just a slice of whatever the compensatory loaf looks like, we can now consider the benefits of a rehabilitative lens, as well as some key shortcomings of the status quo ante approach to compensation. This section develops three arguments: (1) rehabilitation better matches the experience of injury and recovery than the status quo ante approach; (2) rehabilitation avoids the static quality of the traditional view; and (3) a focus on rehabilitation makes more transparent the normative choices that the tort system-or any other compensatory system-must face. This Part will both explain these core advantages and address some important criticisms that could apply to compensation as rehabilitation.

The first point is that, compared to the traditional status quo ante approach, rehabilitation better matches the experience of injury, the process of recovery, and the role of money in that process. The notion of returning the plaintiff to the status quo ante omits a crucial reality familiar to rehabilitative professionals and those who suffer serious injury: The post-injury self often differs in crucial ways from the pre-injury self-psychologically, cognitively, spiritually, emotionally, and rationally.43 The disabled person may go through a bitter and difficult period of grief and recovery, but then may emerge with an altered conception of values and options, both with respect to herself and the world. What she values, what seems worthwhile, and in what order and with what weight, all may greatly change.44 To be sure, the shape and scope of this change will vary among individuals.45 Some injury experiences may leave virtually no footprints on the person; the changes that others experience will vary in duration, form, and many other qualities. Still, the vast narrative and empirical literature bears out the frequently transforming effects of disability.46 In the words of one study relating to spirituality and women with disabilities:

[The women] described the interaction [between spirituality and disability] as reciprocal in the sense that the experience of disability shaped the development and expression of their spirituality; conversely, their spiritual beliefs shaped the perceptions of their disability. The reciprocal interaction between disability and spirituality involved an on-going process within which a personally unique but recurring pattern of events emerged that led to revisions of their beliefs. . . . Each of the women came to view disability as an integral part of herself that often precipitated or demanded a search for personal growth and spiritual meaning.47

Focusing on rehabilitation better captures the transformative effects of injury and the variations of that transformation. To this point, however, one could pose a good question: Granting that rehabilitation might be conceptually superior for this purpose, why and how does this conceptual choice make any difference? One need not subscribe to any particular linguistic or social construction theory to agree that, over time, shifts in language and stated goals can actually affect perceptions and practices in the world. As a result, we are better served by focusing on who the plaintiff might become-given who she now is, at the time of the claim-than on who the plaintiff once was. For instance, as I will explain in more detail later, a focus on rehabilitation might affect some standard practices of plaintiff’s lawyers.48 This focus might alter judicial expectations about the kind of evidence necessary to approve a settlement on a minor’s behalf. Also, it could affect how plaintiffs perceive themselves or the meanings of their lawsuits.

These points could draw several criticisms. One is that these points are much ado about nothing, and may even be misleading in the many cases when the plaintiff is not transformed in any way and compensation essentially can return the plaintiff to the status quo ante, such as the plaintiff with damaged property or with minor or medically correctable injuries. These cases certainly occur, but the notion of rehabilitation poses no conceptual or practical problems for them. Such plaintiffs will still move from the injured status to some later state, which might happen to be virtually the same as who and where they were before. The notion of rehabilitation does nothing to block that goal or complicate easy cases. A more serious criticism is that a focus on rehabilitation will have the practical effect of reducing tort monies paid to the plaintiff. The last section of this Part discusses this concern.49

A second core advantage of a rehabilitative lens is that it avoids the static quality of the status quo ante approach and better fits the dynamic and unfolding effects of a tort lawsuit and judgment. The fit is better in two respects. The first is well understood by plaintiffs, plaintiffs’ lawyers, and medical-rehabilitation professionals. The lawsuit itself-its filing, its duration and nature, and the choices made within it-could affect the victim’s recovery process in many ways. For example, the victim’s recovery could be influenced by advance payments by the defendant for necessary medical treatment during the pendency of the suit; advances by plaintiff’s counsel for medical or living expenses; decisions about when to settle, for how much, and how to divide the money among plaintiffs; suggestions or advice by plaintiff’s counsel about medical providers; and, in general, perceptions about how the lawsuit interacts with, or will influence, the plaintiff’s life.

Again, one need not subscribe to any particular view about the manner or frequency of these linkages to agree that some connection exists. This is especially so given that the experience of an accident can have significant psychological effects on individuals even when the accident does not result in severe physical disability. For instance, one recent study published in the New England Journal of Medicine examined the psychiatric effects on persons involved in a motor vehicle accident, with injuries ranging from no injury to soft-tissue injuries to fractures.50 At least one-third of the patients who came to an emergency department after a motor vehicle accident suffered persistent psychiatric disorders, even when the injuries themselves were not minor from a medical perspective. As the authors of the study suggest:

Our findings can be seen as reflecting the complex psychological meaning of a motor vehicle accident, whether or not there is injury. It may be perceived to be life-threatening and frightening. There can be continuing physical problems and disability interfering with everyday life and ambitions. Financial loss and anxiety are frequent. There may be guilt.51

For accident victims of any sort who enter the claim and litigation process, the features of that process certainly will affect the “complex psychological meaning” of the accident, whether the lawyers, claims adjusters, and other players intend to have an effect or not.

The second core advantage of the rehabilitative lens over the status quo ante approach is its better fit with the real meaning and effect of tort judgments. Traditionally, the entry of a judgment in a tort suit after either trial or settlement has been viewed as the end of tort law’s role in the plaintiff’s life. Granted, we have always understood that the judgment monies themselves will affect the plaintiff. But we have not viewed tort law itself as having any hand in shaping the plaintiff’s life after legal judgment. This might once have been an accurate view, but no longer.52 During the past twenty-five years, a number of developments have combined to greatly increase tort law’s effect on the timing, duration, and control over monies received by the plaintiff. These developments include: (1) a tremendous increase in the use of voluntary structured settlements after the Internal Revenue Code was amended to give tax-free status to the interest earned on personal injury structured settlements;53 (2) the increased use of trust mechanisms for handling judgment monies;54 and (3) tort reform statutes mandating the periodic payment of judgments upon either party’s request in certain cases.55

These changes mean that decisions made at or near the time of judgment will continue to echo throughout the plaintiff’s life. Opting for a structured settlement (or, in a minor’s case, having one chosen for you) will order the payment stream in ways relating to amount, duration, and interval that cannot be altered.56 Settlement trusts can affect decisionmaking power for years.57 Likewise, opting for a lump-sum payment will forfeit important benefits of a structured payment stream. The notion of compensation as rehabilitation better captures the breadth and importance of these decisions as well as more particular choices and questions built into them, such as: How much money will I need in ten years? Will I need more surgeries? Do I want to live by myself in an adapted house or instead in an independent living community where many things are provided? These are the choices that plaintiffs, lawyers, and courts must address; they are choices about where the plaintiff will go, who she will become and what her future may hold. The concept of the status quo ante does little to illuminate these choices and may even obscure them.

A third and significant benefit of compensation as rehabilitation is that it makes more transparent the normative choices that any compensation system, including tort law, must make. True, the status quo ante presents a compelling normative goal, as no goal could be more fitting than the restoration of the plaintiff to her pre-injury position. Although we face well-recognized practical difficulties in carrying out this restoration, its normative force is still powerful. Yet its very power tends to obscure the difficult normative choices that exist-still unaddressed-once we recognize that the plaintiff is never going back to the status quo ante.

If the plaintiff is never going back to who she was, then she can only move toward becoming some rehabilitated person. But rehabilitated in what ways, to what extent, and at what cost? One could plausibly say that tort law currently offers an answer to this question: The plaintiff is to receive full compensation; full compensation means full rehabilitation; and thus tort damages include costs for rehabilitation to the full extent, at any cost necessary for that rehabilitative item. On closer inspection, however, it seems a stretch to say that tort law actually answers the question this way, or indeed has even fully aired the question. To explain, suppose a person has undergone a serious injury that diminishes, among other things, her cognitive ability and motor skills. After a year of intensive multi-faceted rehabilitation, her cognition and motor skills have improved. She can live independently so long as she has assistance from another person for about two hours a day to help with dressing and eating, for instance. A better than fifty percent chance exists that another year of rehabilitation would increase her motor skills to a slightly higher level, so that she would need assistance only for one hour a day. And the same could be said about still one more year of rehabilitation.58 Or consider an option that appears in a number of reported cases: a “life care plan” that is presented by plaintiff’s rehabilitation expert and that includes two options-twenty-four hour attendant care at home or life in a long-term care facility.59 Presumably the factfinder is allowed to choose between these two options,60 and the choice would rarely be a question of medical expertise. In some cases, the specific facts of the case may clearly make one choice more appropriate for the plaintiff. But, in other cases, the choice will turn on the value the factfinder attaches to the importance of independence and other normative factors.

Current tort law, it seems, has not provided an answer to the compensability of these rehabilitative expenses. Certainly, a plaintiff’s lawyer would be well within the law in arguing that the items are compensable. Yet defense counsel could also argue that “full compensation” would include just the already incurred one year of rehabilitation and the costs of assistive care.61 If both arguments are within doctrinal boundaries, then tort law either has not provided a thorough definition of rehabilitation or has provided a definition that allows courts considerable leeway.

Thus, whether rehabilitation refers to “all the way, at any cost” is a normative choice that the tort system has never directly addressed. And, if this is the choice, other issues remain: selecting and defining the abilities that should be relevant for rehabilitation purposes; selecting the skill level that should be deemed normal or acceptable when measuring those abilities; selecting among the assistive technologies or services that might be available;62 and accounting for the claimant’s role or responsibility in the rehabilitative process. All these are difficult questions, and systemic ones. They should not be left solely to case-by-case determination that depends on the skill of the lawyer, the views of the judge, or the findings of the jury. Yet, as a systemic matter, tort law still faces in the opposite direction, and thus does not directly address the normative questions that tort cases are in fact answering, at least implicitly, every day.

Having explained these core reasons for viewing compensation as rehabilitation, a serious criticism deserves attention. Arguably, envisioning compensation as rehabilitation will have the practical effect of reducing rehabilitation by reducing tort payments. Rehabilitation is an instrumental goal, and thus would seem to support only tort payments instrumentally linked to that aim. So rehabilitation would simply be another tool that tort reformers could use to reduce payments for pain, suffering, mental anguish, and impairment-payments that as a practical matter are often necessary for the plaintiff’s rehabilitation. Even if tort reformers did not succeed in further limiting the scale of these nonpecuniary damages, any jury instruction focusing on rehabilitation could encourage the jury to award only monies tied to this goal. And what of the person whose injuries will render her terribly disabled even after “full” rehabilitation? One court aptly described one such plaintiff: “Even if she reaches her fullest potential through rehabilitation, which is doubtful at best, she will still remain a shell of her former self with substantial limitations on her ability to enjoy her life on a daily basis.”63 A focus on rehabilitation might perversely seem to support giving less to this (often) more wounded individual.

An initial response to these important questions is that, in emphasizing rehabilitation, this Article does not propose specific changes in the elements of damages, the requisite proof for damages, or jury instructions relating to damages. Rather, the argument is that we should more intently consider and evaluate tort practices and doctrines in light of a rehabilitative aim. Over time, perhaps this conception will prompt different jury questions and instructions on damages, as well as more particularized findings about rehabilitation expenses and options, including more explicit allowance for compensating family caregivers. This conception is not necessarily at odds with pain and suffering damages or other nonmonetary damages. These points naturally open the door to Part III of this Article, which explains some of the practical and doctrinal benefits of focusing on rehabilitation.

III. SOME IMPLICATIONS OF FOCUSING ON REHABILITATION

While Part II of this Article focused on the conceptual importance of rehabilitation, this Part addresses some key implications of that view. Specifically, this Part will address tort law’s current damages doctrines for medical and rehabilitative expenses; tort’s current mitigation doctrine; and several professional responsibility considerations for plaintiffs’ lawyers.

A. MEDICAL AND REHABILITATIVE EXPENSES

Outside of practitioner literature, tort law’s allowance of damages for medical and rehabilitative expenses receives relatively little attention. This in part reflects the assumption, critiqued earlier, that rehabilitation can be viewed simply as one slice of the compensation loaf. A closer look at rehabilitation reveals a number of issues that turn heavily on normative decisions, such as the definition of rehabilitative outcomes, the selection of rehabilitative methods, the selection of rehabilitation participants other than the claimant herself, the measurement of outcomes, and the issue of client unwillingness to participate in rehabilitation.

One might fairly raise an initial question about these issues. Even granting that these topics require a mixture of medical input and non-medical judgments, does tort law not already provide an adequate vessel to hold this mixed decision? The plaintiff is free to bring forth evidence about necessary and appropriate rehabilitation strategies; the defendant is free to critique the cost, necessity, or type of rehabilitation by means of cross-examination and expert testimony; and a jury ultimately decides.64 Certainly tort law’s current doctrinal rules provide one possible way of shaping and deciding the issues discussed in this section. Simply understanding how tort law shapes these questions is itself worthwhile, given the dearth of deep attention to rehabilitation. The current decisional standards are cryptic enough to permit wide variation in arguments and decisions about normative questions such as the appropriate rehabilitative outcomes, the plaintiff’s role, and the role of others in the process. Moreover, in some respects, current tort doctrines and practices are flawed, or at least deserve to be evaluated against other possible approaches.

Rehabilitation, in its broadest meaning, refers to “the process of helping a person to reach the fullest physical, psychological, social, vocational, avocational, and educational potential consistent with his or her physiologic or anatomic impairment, environmental limitations, and desires and life plans.”65 If tort doctrine currently does not include this in its allowance of recovery for medical and rehabilitative expenses, past and future, one must consider whether it should. To answer this normative question, we need to know the plausible standards that a body of law could use to define the rehabilitation outcomes that will count. In shorthand, we can call these standards the full restoration approach, the bodily functioning approach, the cost-benefit approach, and the essential outcomes method. Although other standards are possible, these are the most obvious.

A full restoration approach would entail bringing the person to the most complete possible level of physical, emotional, cognitive, social, functional, and vocational abilities.66 The only limit on this goal would be causation, as the defendant would be obligated to fund this process only to the extent that it rehabilitated losses caused by the defendant’s wrongdoing. The full restoration approach would aim to maximize ability and independence with respect to these outcome criteria.67 For instance, for a head injury victim who suffers a mobility impairment, the aim would be maximizing independence. In such a case, architectural modifications to facilitate mobility around the home would be preferable to assistance from others. In addition, the full restoration approach in theory would always prefer the maximum version of the ability at issue, rather than some lesser level that might be deemed adequate under some other standard. For example, suppose the mobility-impaired person lives in an urban area supplied with an extensive disability-accessible public transit system. The full restoration approach would prefer that she also be equipped with a hand-controlled car, even if she could manage her affairs conveniently using the transit system. It would also include the cost of assistive devices, daily care, vocational activities, and recreational activities, which might call for a “chairlift compatible, fully suspended mono-ski for use on challenging trails . . . .”68

The other approaches would aim for a less ambitious set of outcomes. The bodily functioning approach would be limited to maximizing or restoring to the extent possible the body’s functional capabilities without removing or altering social or environmental barriers (except at a most minimal level). So, for instance, the mobility-impaired person would receive therapy relating to gait improvement, but would not receive a hand-equipped car. The essential outcome approach would aim to rehabilitate the person for those abilities and functions deemed basic to an acceptable quality of life, such as mobility and independence in basic daily activities.

Finally, a cost-benefit approach would provide only the rehabilitative services whose marginal benefits outweighed marginal costs. Not surprisingly, this is the approach that is emerging within managed care approaches to rehabilitation, both for private sector insurance and public programs such as Medicare.69 The effort to implement the cost-benefit approach either in general categories or via individual adjudication would be formidable. Although rehabilitation literature includes extensive cost-benefit studies, these have numerous flaws and limits. Most studies focus on vocational rehabilitation, or only on those outcomes with a ready market valuation.70 Because even these studies have limitations,71 using an efficiency approach to the full spectrum of rehabilitation benefits is simply not feasible.

We know that current tort law theoretically permits a full restoration approach. The jury charge is simple, requiring a reasonably certain need for and reasonable cost of medical expenses72 and the case law does not suggest specific additional requirements needed to justify full restoration. Thus, plaintiff’s counsel is permitted to argue according to a full rehabilitation measure; indeed, the lawyer would be remiss to argue for anything else. Yet, defense counsel likely is permitted to make arguments that invoke other standards; in the end, the jury could adopt the normative guideline implicit in the defense lawyer’s argument.

Once we recognize the potentially wide decisional room around the meaning of rehabilitation in current tort litigation, other questions arise. One is whether this type and level of decisional flexibility is desirable. After all, we give decisional leeway to the jury on many other questions with the understanding that the jury’s decision will to some extent reflect community norms.73 We should have serious concerns, however, about the decisional space the jury has with respect to rehabilitation. It seems plausible to assume that most juries have limited understanding of the effects of many disabilities. Thus, expert testimony will be essential for any claimant seeking rehabilitation-related compensation.

Yet, the possibility of expert assistance to the jury leaves much to be desired. Although rehabilitation medicine has matured greatly in the last two decades, it has been “a comparatively drab backwater in the overall scene of American health care.”74 Thus, crucial foundational questions remain in dispute-even among the experts. Expert disagreement exists even on the core question of the value of certain rehabilitative plans. As one rehabilitative expert has explained:

The forces that shape public policy apparently are not generally in agreement as to what rehabilitation accomplishes for persons and, consequently, why someone might “need” it. The classic characterization of rehabilitation’s goal, namely to restore a person’s maximal level of function, does not by itself justify rehabilitation’s worth. Such an answer leaves open questions about (1) whether . . . such services might be provided more cheaply through some other mechanism, and (3) even assuming that rehabilitation services cause some functional return, whether such return is worthwhile enough to justify its cost.75

In addition, studies have shown that the views of medical professionals about the relative importance of various functional capabilities can differ significantly from the views of individuals with disability experience.76 Studies have also noted the biases that enter into even trained clinical assessments of functionality based on such factors as age, functional capacity in other areas, type of injury or illness.77

Some examples can illustrate the range in decisions about whether further rehabilitation is desirable. Consider a retired firefighter who, after a cerebrovascular accident, has residual problems with balance. After three weeks in physical therapy, the patient has progressed to the point where he needs only minimal assistance in transfers from, say, bed to walker, or walker to car. The therapist determines that further work will continue to improve his balance and strength, but is unlikely to reduce his need for at least minimal assistance. Put another way, he can progress on the “system” level including strength and balance, but overall functioning will not be improved.78 According to some rehabilitation professionals, there is insufficient clinical justification for continuing therapy.79

If more guidance to the jury and other decisionmakers about the range of rehabilitation is desirable, we should perhaps consider what form should this take. Given the great variation in the type and reliability of rehabilitation measures, more specificity as to measurement tools and outcomes seems unwise. But instructions to the jury (and thus to decisionmakers operating in the shadow of the jury) could make clear, for instance: (1) whether rehabilitation expenditures are to be bounded by cost-effectiveness concerns; (2) whether the plaintiff’s own preference for independent living over assisted care should carry the day no matter what the cost; (3) whether and to what extent recreational assistive technologies (and other assistive technologies) should be compensable; (4) whether the full range of independent functioning should be included and all costs allowed if they are more likely than not to yield benefits in these areas.

B. THE ROLE OF THE PLAINTIFF IN THE REHABILITATION PROCESS

What should the tort system expect from the tort plaintiff as to rehabilitation efforts? To answer this, we should first consider why a plaintiff might not participate fully in a rehabilitative process.80 Even if aware of a rehabilitative option, the plaintiff may have unusual qualities that make the option unattractive, such as a hypersensitivity to medical specialists or the prospect of pain, depression, or pessimism. Another reason relates to the classic image of the rationally calculating malingerer. A softer version of the malingerer is a person who less consciously absorbs and weighs the downsides of rehabilitation-intangible but real benefits such as socially sanctioned removal of family or work obligations and increased attention from friends and family.

A compensation system could respond in several ways to the prospect of a plaintiff who for some reason engages in rehabilitation at something less than the appropriate level (by some measure). The system could just accept these choices, address the informational deficit underlying some of the underuse, or use a form of penalty. Tort law takes the third approach by reducing damages for the losses that could have been avoided by reasonable efforts to mitigate.81 The current tort system simply has no method for improving the informational flow relating to rehabilitation.

Yet tort law’s mitigation doctrine leaves much to be desired. One problem is the lack of any systematic intervention aimed at rehabilitation (or even medical treatment) during the often lengthy pendency of the claim. Any compensation program, including tort, can take on a more active role in advising and encouraging the claimant throughout the process to make use of rehabilitation. Workers’ compensation programs, for example, advise the claimant about providers of rehabilitation services,82 and workers’ compensation insurers often hasten to provide rehabilitative services early on in the process.83 Granted, tort is different in important ways from workers’ compensation, which is a first-party insurance system that can provide early benefits (medical or lost wage) without jeopardizing the insurer’s duty to the insured. By contrast, and as explained in more detail in the next section, tort law’s third-party insurance mechanism greatly restricts insurers’ ability to advance costs under existing policies.84 Nonetheless, even this limitation could be altered by legislation requiring some level of no-fault interim rehabilitation and medical expenditure, independent of the liability amount as to which the standard liability-damages battle will be fought.

Tort’s only mechanism for addressing rehabilitation disincentives-the mitigation doctrine-likely has little meaningful effect. It seems unlikely that a plaintiff will ever be deemed unreasonable for failing to use rehabilitation benefits that are virtually unobtainable, whether through the plaintiff’s own medical insurer or through the tortfeasor’s insurer.85 Moreover, little professional consensus exists on what constitutes a “reasonable” or “necessary” rehabilitative method.86 For instance, with medical model treatment, such as surgery to correct a disk, there is unlikely to be significant professional disagreement on the manner of treatment (fusion surgery). By contrast, the victim who chooses not to undergo an intensive functional restoration program can find plenty of professional testimony equivocating about the benefits of the program.87 So, quite simply, the ex post mitigation rule seems unlikely to affect decisionmaking by plaintiffs. What will affect choice, and also generate long-haul information about the efficacy of various approaches, is more information and more interim funding. Tort law provides neither of these.

C. THE ROLE OF THE PLAINTIFF’S LAWYER

A rehabilitative lens also reveals some important questions about the role of the plaintiff’s lawyer. When doctrinal and practical attention is focused on compensation, this focus readily translates into the aim of obtaining the maximum monetary award for the client. This might lead to an understandable, but sometimes unfortunate, shorthand translation of the client’s aims. The lawyer’s professional obligation includes advancing the client’s objectives. For the personal injury client, the lawyer could easily assume that this requires maximizing monetary recovery. Indeed, the goal of maximizing recovery is likely a powerful default position for the clients’ assumed objectives in much personal injury representation.

But consider the following scenarios. Defendant is self-insured and might be willing (if asked) to advance interim expenses for intensive vocational and physical rehabilitation that the plaintiff’s first-party insurance sources do not provide. Yet, if the plaintiff undergoes this rehabilitation, the plaintiff’s resulting disability should presumably be reduced, and the defendant will be able to introduce evidence of having paid some of the plaintiff’s interim expenses. Real questions exist whether the plaintiff would be willing to undergo this rehabilitation, and whether the benefits of seeking and obtaining interim payment by the defendant outweigh the financial and strategic benefits of not doing so. Advising the plaintiff about these options falls within the lawyer’s duties of competence and communication.88 After all, these are central choices that bear on the goals of the representation.89

In another scenario, settlement appears likely in a major case involving a permanent disability that will generate lifetime medical and income supplementation needs. Assume that the plaintiff is twenty-two years old and mentally competent, but probably immature and uneducated about the management of such a large sum of money. The plaintiff’s lawyers could view their role as simply obtaining the best present value dollar settlement amount. Under this view, the lawyer’s role would not extend to informing the plaintiff about any options for structuring the settlement (for example, obtaining guaranteed payments with tax-free interest over time) or about other management and investment options that could be established at the time of settlement.90

These are just two of many possible scenarios illustrating that the phrase “maximizing recovery” represents too narrow a translation of what the client’s possible objectives might be in litigation. Many choices about the use of money and interim and final settlement affect not just what the plaintiff receives monetarily, but also the plaintiff’s course of recovery and access to rehabilitation and medical support over time. Thus, a plaintiff’s lawyer’s duties of competence and communication should include advising clients about these interim and final choices, as well as the final amount of a lump sum.

Whether plaintiffs’ lawyers in fact view their role in this broader way is an empirical question for which little information exists. Anecdotal literature and conversations with fine and ethical plaintiffs’ lawyers suggest that a good number of lawyers continue to view their role as achieving maximum monetary recovery.91 How plaintiffs’ lawyers view their role matters very much. If the attorney’s role is to obtain maximum compensation, then many interim and final options relating to settlement, payment, and rehabilitative medical services during the pendency of the lawsuit will never be explored, explained to, or considered by, the plaintiff.

The point here is not that a plaintiff’s counsel should serve as a rehabilitation professional; certainly, counseling with respect to rehabilitation falls outside a lawyer’s expertise and the scope of the engagement. But we must recognize that the legal professional will be a crucial gear in a legal-medical-rehabilitative engine operating from the time of representation until the time of resolution, with effects extending beyond the claim’s resolution. The lawyer cannot avoid affecting the workings of this engine, even by staying neutral or passive with respect to medical or rehabilitative matters.92 Plaintiff’s counsel, then, needs to understand his or her role as advancing the objectives of the injured person, realizing that these objectives can often raise questions and choices other than those relating to the settlement amount’s bottom line or the decision to go to trial versus settling. The lawyer should at least assume that the client’s objectives include rehabilitation, that the rehabilitation goal might sometimes conflict with the distinct goal of maximizing monetary recovery, and that the lawyer’s duties of competence and communication require counsel to inform and advise the client about the options pertinent to both goals.

D. OTHER REHABILITATIVE DISINCENTIVES

Much literature justifiably criticizes a number of tort law’s failings from a compensatory perspective.93 The infusion of a rehabilitation aim sharpens these criticisms, reshapes some of them, and adds some more. For instance, tort law’s most obvious failing from a rehabilitative perspective is that so many victims of even negligently inflicted injury are not compensated for a variety of reasons, including insolvency or underclaiming.94 To this point, one could fairly respond that this criticism is not rehabilitation specific. If this is tort law’s only problem from a rehabilitative perspective, then to highlight it is simply to reiterate in a different form the well-known problems with viewing tort as a compensatory system at all. Rehabilitation simply intensifies the problem. A rehabilitation perspective, however, does inject additional concerns that are not simply mirror images of well-known complaints about tort law’s compensatory function.

First, a rehabilitation perspective casts into sharper relief another frequently criticized feature of tort: delay in delivering compensation. Delay impedes rehabilitation and can promote the intractability of a disability mentality and disability behavior.95 Granted, the extent and impact of this rehabilitation-reducing effect cannot be documented. Yet, if we plausibly assume that it exists, a key but little-noticed feature of tort law makes this effect even more bothersome. Suppose that a tort plaintiff sustains a back injury that requires fusion surgery, physical therapy, and pain management techniques. The longer the plaintiff waits for any of these, the more likely it is that plaintiff’s disability will intensify in degree and duration. It may make sense for the defendant (in a relatively clear liability case) to advance funds to pay for this. After all, defendant will likely have to pay later, and earlier payment may mitigate damages and provide a psychological boost for the defendant in the jury’s mind. Yet advance payments by defendants are quite rare. One reason, I suspect, is the third-party insurance regime that tends to influence the defense and settlement payments of much tort litigation. For reasons that need not be explained in detail in this Article, a defendant arguably covered by liability insurance generally must yield control over the defense and settlement of the claim to the insurer.96 The insurer, in turn, has a duty to one party only: the insured. In effect, this duty prevents the insurer from making advance payments to the tort plaintiff without greatly increasing the insurer’s potential for bad faith liability to the insured if, at the end of the day, the case goes to trial and results in a judgment in excess of the policy limits.97 In sum, a fundamental feature of the tort system-the liability insurance engine that fuels the system-simply cannot be configured in a way that assists in early rehabilitation.

Second, effective rehabilitation frequently calls for the participation in many ways of family members or other loved ones.98 According to one rehabilitation expert, the family can be “a valuable resource in the patient’s treatment and rehabilitation,” and rehabilitation professionals “more than ever before” are focusing on the family environment.99 For instance, many chronic pain management programs emphasize reorienting the patient’s perspective and pain-driven behaviors. To do so, these programs educate family members about how to avoid reinforcing pain behaviors and to assist in reorienting the patient’s life away from a focus on pain.100 Other rehabilitative programs may require family members to help with in-home therapy and exercise.101 Although plaintiffs can recover for some attendant care, tort law generally does not compensate for relational aspects of the rehabilitation process. As one court recently stated: “[T]he Court will not award anything for ‘family’ counseling . . . because future medical awards are not allowable as such for anyone other than the injured party.”102

Third, problems flow from tort law’s well-documented tendency to undercompensate larger claims.103 Empirical evidence does not tell us how often this undercompensation applies specifically to rehabilitative costs. But one can plausibly surmise that such costs are frequent casualties in an undercompensatory package. Many rehabilitative measures are not viewed as conventional medical care and thus may command less attention during the settlement process. In addition, when a claimant receives a settlement amount that is insufficient to cover mainstream medical care, income losses, and rehabilitation, one can suppose that the limited funds are concentrated on paying for the first two.

Finally, although no direct empirical data is available, claimants in settlement contexts often do not recover for rehabilitation expenditures probably because they either do not seek it initially or do not press for it after the initial claim. This problem is similar to, but more specific than, the one just noted. The rehabilitative measures relevant to certain types of losses are likely too little known or accepted to play a role in the informal rules governing the settlement process. For example, in H. Laurence Ross’s classic study of the settlement process in auto injury cases, he found that the payment on the case was usually a variable of the amount of medical “specials,” or out of pocket costs.104 At first glance, this may seem to encourage rehabilitative expenditures. Yet in many cases involving moderate rather than catastrophic injuries, this may not be the case. Because the rehabilitative referral process operates sporadically and unpredictably, lawyers and adjusters may not perceive these expenses as having the legitimacy of more typical medical specials. In addition, case valuation for settlement purposes under these informal rules is tied to specials that have already been incurred. Because a claimant is less likely to have insurance coverage for rehabilitative care than for acute care, a rehabilitative cost item presented to an adjuster is more likely to refer to a future, not yet incurred loss.

IV. REHABILITATION AND ITS RELATION TO THE THEORETICAL PROBLEM OF INCOMMENSURABILITY

The notion of rehabilitation is also of vital relevance to a longstanding theoretical critique of payments for personal injury, especially payments for nonpecuniary harms. In essence, the critique focuses on whether awards for nonpecuniary losses really advance, in any meaningful way, the aim of restoration derived from a corrective justice viewpoint.105

In a recent essay, Professor Margaret Radin engages in a rich exploration of one piece of this critique-the issue of incommensurability.106 In essence, the problem is this: If we have little difficulty thinking that money is commensurable with the harms for which it compensates, then the notion of corrective justice as compensation via restoration makes ample sense.107 If we disagree that money is commensurable (or should be viewed as commensurable) with certain personal losses, we naturally fear two results: (1) that our compensatory practice will not achieve restoration and thus corrective justice,108 and (2) that in trying to compensate a personal loss with an incommensurable item (money) we might inadvertently be declaring or narrating a vision of human life and wholeness that views money as commensurable with deeply personal losses.109 Professor Radin suggests that those committed to corrective justice should care about these issues because they mean that rectification-the mandate often associated with corrective justice-might often be impossible. This, she realizes, does not mean that aiming for corrective justice is futile. Rather, she thinks, it points to the benefits of trying to develop an understanding of corrective justice that does not require rectification.110 Professor Radin suggests a tentative version of such an understanding: Compensation can symbolize public recognition of the transgressor’s fault by requiring something important to be given up on one side and received on the other.111 This is her tentative approach, although she notes that she is not trying to develop in any detail an alternative conception of corrective justice.

An alternative conception of corrective justice, it goes without saying, would be worth developing only if it were superior to the notion of corrective justice as rectification. In this light, it is not enough to develop a formulation that as a formulation avoids the problem of incommensurability. It also must be a formulation that leaves out no important demand of corrective justice and that can at least serve as a foundation for workable real-world decisions about how much compensation is owed in individual cases.

Granting that Professor Radin’s suggestion is a tentative one, some problems appear at the outset. Under the general approach she suggests, the payment of compensation may achieve corrective justice if it delivers to the victim something of value or importance.112 Her recognition view of compensation would say the following to the victim: “We recognize that you have suffered a serious loss. Money is incommensurable with that loss. But, in our culture, money is an item of great significance, and so we will give you money for that loss. Although this does not in any way rectify the loss-indeed, we realize that it does not necessarily bear any relation to your loss, and we don’t want to suggest as much-giving you this money does show you that we take your rights and your loss seriously.” There is much appeal in this view, because it does indeed “dissolve” the problem of incommensurability. This view suggests a way that compensation can achieve justice between the transgressor and the victim without assuming or declaring that money is in any way translatable to loss.

This notion of corrective justice misses something crucial in an effort to avoid the problem of incommensurability. We cannot achieve corrective justice, I contend, unless the outcome (whether the payment of money or something else) is somehow linked to the victim’s loss. It is true that we can symbolize, with payments of money unrelated to any appraisal of the victim’s loss, that we take his or her loss seriously. Indeed, the doctrine of nominal damages in intentional torts and some psychological literature seem to support this view.113 To the victim who protests that the payment is not enough, or that the payment seems an insulting undervaluation of her true loss, this view might respond: “This is only because you misunderstand the purpose of these payments. They are not paid to rectify your loss, or to reflect our assessment or valuation of the severity of your loss; they are intended to show you that we take your loss seriously, and we use money for this purpose only because money is so important in our culture.”

I agree that the payment of compensation can deliver this message, and that this message may, as a matter of theory, satisfy the demands of corrective justice. That is, although theorists have arrived at no canonical conception of corrective justice,114 some would agree that this type of symbolic achievement satisfies the requirements of corrective justice. Yet this conception (though perhaps theoretically adequate) would provide too impoverished a notion of corrective justice upon which to build a compensation program. In the effort to avoid saying that “money is translatable into loss, or vice versa,” this approach would prevent us from acting on our recognition that money does indeed matter-not just as a general symbol of importance in our culture, but as a way of helping rehabilitate and reconstruct post-injury lives.115

Professor Radin’s approach, for good reason, seeks to avoid saying that “money is translatable into loss, or vice versa,” there is no question that money is of crucial importance in post-injury lives. But money helps to rehabilitate and to restore in myriad fundamental ways, including payment for medical care, medical rehabilitation, vocational therapy, vocational training education, adaptive equipment, counseling, and personal assistance. Money also allows the purchase of substitute items and activities, a key part of what Louis Jaffe termed “solace.” This money is linked to restoration and rehabilitation, even though it cannot accomplish rectification either by purchasing completely restorative medical care or by returning to the victim a dollar sum of equal value to the loss. Furthermore, this link is an individualized one. Post-injury, each person has particular restorative and rehabilitative needs and the sum of money that will advance these ends to some meaningful degree (or to the maximum possible degree) will differ among individuals. Something would be greatly amiss, then, with a theory of corrective justice that would shackle us from acting on this recognition of how money matters in post-injury lives.

This discussion reveals an inadequacy in the recognition view, an inadequacy with both theoretical and practical dimensions. Given the diversity of post-injury rehabilitation and restoration, and the importance of money to these topics, a theory of compensation lacks something crucial if it suggests that compensation can satisfy corrective justice and yet not be linked in any way to individuals’ particular loss experiences. Without some consideration of how money can matter in particular loss contexts, compensation payments will fail to advance the injured’s post-injury path to a degree that we would deem necessary under corrective justice.

Those attracted to a more symbolic approach, however, might suggest that such an approach would not prevent a compensation program from structuring compensation with an eye towards how money affects post-injury lives. We could supplement the demands of corrective justice with guidelines drawn from some other theoretical aims, particularly because we probably would be proceeding from a mixed view of accident law. For example, we could draw on distributive justice notions to conclude that certain payments are necessary to help rebuild post-injury lives to a degree that allows a meaningful level of functioning and participation in the world. This response might be adequate for those who do not take too seriously the contribution of corrective justice to a system of accident law. Some theorists, of course, do not. For them, corrective justice does not form a distinct, coherent notion of justice;116 for others, corrective justice, even if coherent, simply should not lay claim to being a major normative goal of accident law.117

Nonetheless, for those who view corrective justice as an important goal of accident law in at least some pockets of the world of injury, this response should fall short. To be sure, both distributive justice notions and economic arguments support some post-injury payments directed at restoration and rehabilitation. Yet the types and levels of payments that these principles would suggest likely would fall well short of maximum rehabilitation. Corrective justice, for those who take it seriously, would require something approaching maximum rehabilitation. Thus, recourse to another theoretical principle could not fill the gap left by the recognition view of compensation.

A second response is that, at most, these concerns have simply identified one side of an insoluble tension. If we wish to avoid declaring commensurability, we need to use a theory of compensation that does not depend on scalar or reductionist claims of commensurability. The recognition view does indeed avoid this dependence. If we were to modify or replace the recognition view with an approach that considers the relationship of money to the injury, then we would be declaring commensurability in some sense. While perhaps we would have gained the benefit of being able to consider how money matters in individual loss settings, we would not, after all, have solved or “dissolved” the problem of commensurability for compensation.

Yet a view aimed at considering how money matters in the rehabilitation of loss might avoid declaring commensurability. If we were to say that corrective justice demands that the injurer pay the sum necessary to rehabilitate the injured individual to the maximum degree possible, this would not imply a reductionist version of commensurability, or that all losses can be reduced to a sum of money. Nor would we be depending implicitly on a scalar ranking of the size or worth of each loss, as a loss. Instead, any scaling suggested by the view would be in relation to the rehabilitative needs posed by the injury.

Of course, relying on a rehabilitation perspective alone would also be insufficient. As noted earlier, it does not give adequate guidance about what to do from efficiency or justice perspectives when rehabilitation is not possible or when the person is comatose. A look at rehabilitation, nonetheless reveals problems with a theory that focuses on the recognition or symbolic role of money.

CONCLUSION

Restoring the plaintiff to her pre-injury position is a compelling normative aim. Yet this concept’s very power tends to obscure the difficult normative choices that still exist, unaddressed, once we recognize that the plaintiff can never go back to the status quo ante. If the plaintiff is never going back to who she was, then she can only move toward becoming some rehabilitated person. But rehabilitated in what ways, to what extent, and at what cost?

For several reasons, the status quo ante translation cannot answer these questions persuasively. By using the plaintiff’s pre-injury position as the measurement starting point, the traditional view misses the implications that follow from the realization that the post-injury plaintiff is often a different self than the pre-injury plaintiff. This approach also reflects a static view of “closing the account,” and thus deflects attention from the many changes that, over the last twenty-five years, have come to mean that the payment of a tort judgment no longer marks the end of tort law’s interaction with the plaintiff’s life.

Shifting emphasis from the status quo ante, and concentrating more on the notion of rehabilitation, has considerable theoretical and practical benefits. The aim of rehabilitation has received too little exploration, partly because theorists and practitioners usually consider the aim of rehabilitation to be subsumed within the goal of compensation. As Part I of this Article showed, however, rehabilitation is different in important ways from what might plausibly be viewed as “compensation.” Thus, we cannot assume that a systemic decision about the shape of compensation, or particular doctrinal standards for compensation, does the necessary work with respect to our rehabilitative goals, whatever those may be.

This Article then demonstrated some practical implications of concentrating on rehabilitation. First, tort’s current doctrines and practices relating to “reasonable and necessary medical and rehabilitative expenses” reflect substantial indeterminacy about the scope of compensable rehabilitative measures, including the relevant outcomes and assessment approaches. Second, as to creating rehabilitative incentives, tort law unimaginatively (and generally fruitlessly) employs only the “stick” approach. Increasing the flow of information and the chances for accessing rehabilitation is both possible and preferable. Third, the issue of rehabilitation creates important practice issues for plaintiffs’ lawyers. Although clients’ objectives are understandably assumed to be maximizing compensation, at times this may conflict with the aim of rehabilitation. The scope of a lawyer’s representation does not include operating as a knowledgeable rehabilitative professional. Still, a plaintiff’s counsel needs to understand his or her role as advancing the objectives of the injured person, realizing that these objectives can often present choices other than those relating to the settlement amount’s bottom line or the decision to go to trial or settle. Thus, the lawyer should at least assume that the client’s objectives may include rehabilitation, that this goal may sometimes conflict with the alternative goal of maximizing monetary recovery, and that the lawyer’s duties of competence and communication require counsel to inform and advise the client about all the options pertinent to both goals.

In addition, focusing on rehabilitation exposes counter-rehabilitative features of tort law that have received little attention, even in the literature critical of the tort system. Chief among these features are tort law’s failure to account for the role of family members in rehabilitation, as well as an unintended effect of the third-party insurance mechanism-the disincentive it creates for the defendant’s insurer to advance monies that might promote early rehabilitation.

Finally, this Article showed how rehabilitation affects a theoretical problem that has troubled corrective justice theorists. If corrective justice requires that the plaintiff be returned to the status quo ante, and if money is the means by which we do this, tort compensation may have the effect (even if unintended) of signaling that money is commensurable with deeply personal losses, such as losses of cognition or the loss of a child. If tort law does transmit this message, perhaps we should consider how it could avoid doing so and still achieve the aim of corrective justice. A rehabilitative lens goes far toward addressing this concern, while still maintaining-indeed, requiring-a focus on a particular individual’s losses.

Rehabilitation, of course, is not the complete and ultimate definition of compensation. Indeed, as this Article has shown, a closer look at rehabilitation raises a number of issues and questions for which no easy answer is available. Should the current general instruction relating to “medical and rehabilitative expenses” be modified? How can we best address the tendency of the third-party insurance mechanism-with the duties that flow from the insurer to the insured defendant-to prevent early partial payments that might enhance rehabilitation? Should tort damages include counseling and adjustment costs for family members involved in the process of rehabilitation? To what extent should the scope of the plaintiff’s lawyer’s representation include recognizing and advising the plaintiff about how various claim-related choices might affect rehabilitation? By raising and trying to address these and other questions, this Article has shown that both the theory and practice of tort law has much to gain by focusing on, understanding, and closing the distance between who the injured plaintiff is and who the plaintiff, once rehabilitated, might become.

ELLEN S. PRYOR*

* Homer R. Mitchell Professor of Law and University Distinguished Teaching Professor, Southern Methodist University, Dedman School of Law. Many thanks to Professor Heidi Li Feldman and the staff of the Georgetown Law Journal for organizing this stimulating and enjoyable conference. I am grateful for the rich input of the participants in the symposium. A special thank you to John Goldberg for his continuing and invaluable suggestions. I greatly appreciate the financial support of the M.D. Anderson Trust. For their comments and suggestions, I thank my colleagues Professor Elizabeth Thornburg and Associate Dean Christine Szaj. For his unfailing help and good cheer, I thank Will Pryor.

Copyright Georgetown University Law Center Mar 2003

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