Parental Malpractice: Is This A Thing?
That is not how Middle Daughter phrased it, of course. That's how I, with my hundreds of thousands of dollars worth of schooling phrased it. What Middle, who is studying to be a "paralegal," or "not a lawyer and they have to do most of the boring stuff that lawyers don't want to do but which must be done," asked was "Can you sue your parents for malpractice?"
Interesting question ha ha ha who raised this kid?
It turns out that she wasn't thinking of suing us for malpractice but was simply wondering whether such a suit could be brought, which I answered by saying to her the same thing I say to all my clients, and my staff, and judges (who, to be honest, rarely ask me questions), which is this:
[THIS STATEMENT PROTECTED BY ATTORNEY-CLIENT PRIVILEGE]
Ha, no, just kidding. You're not my client! And if you were most of what you think is privileged really isn't privileged, depending, I suppose, on what you think might be privileged (Hint: very little).
Anyway, what I actually say to them is this:
"Anyone can sue anyone for anything at any time."
Which usually results in them staring at me, until I say:
"The real question is can they win?"
You see, there is nothing that keeps you from filing a lawsuit against anyone at any time for any thing, so long as you know where to file things, and have about two hundred bucks. There's no physical impediment to doing that, and over the past 15 years or so (the time I've been paying attention), much legislation has been devoted to attempting to reduce the ability of people to file lawsuits against other people, ranging from innocuous and probably-helpful rules regarding prisoner litigation (prisoners qualify as indigent people who can therefore have papers filed and served without the usual, rather nominal, costs) to the probably unnecessary, possibly unconstitutional, and certainly-ill-advised efforts to reduce the number of appeals a death row inmate can file, thereby 'streamlining' the process of injecting a person with enough poison to kill them.
Or to electrocute them. Whatever, right?
So: kids can sue parents for malpractice, but can they win? That's the question! But more importantly, THIS is the question I am interested in, first:
SHOULD kids be allowed to sue parents for malpractice?
Odds are, if you are a parent, you instinctively said no, and if pressed for reasons, you would throw out things like "it's my right as a parent to raise my kids how I want," or "Parents aren't the only influence on how kids turn out," or "Why do lawyers exist, anyway, are you insane? Don't let my kids sue me!"
If you are a lawyer AND a parent, you probably also added:
"Slippery slope," and folded your arms smugly.
Let me first argue why kids should be allowed to sue you, the parents -- or ME, the parent-- for parental malpractice, which requires first that we define what we mean by parental malpractice.
In real, i.e., actually existing, malpractice cases, a lawyer who wants to win (not every lawyer wants to win, I've come to realize, many just want to get paid and don't care what happens to their client. They don't say that, of course. They say "I'm doing my ethically-required job" but if you really understand how law works you can see why many lawyers are revealed to not care, at all, about their clients and so don't care about winning, not the way winning should be defined, which is for another day>)
In those real cases, a lawyer has to prove:
1. That the person he is suing has a duty to the lawyer's client.
2. That the person he is suing breached that duty by doing something incorrectly.
3. That the incorrect thing was a very specific kind of mistake, mostly meaning one that nobody else really would have made, and
4. That the mistake caused harm to the lawyer's client.
Boiled down, that's what lawyers learn as
And those rules apply not just to malpractice actions, but to all harms that are caused. Malpractice is a subset of a larger set of rules that you've probably heard of:
(If this were a Broadway show, the orchestra would have just done that DAH dah duh thing to announce the arrival of the bad guy.)
Negligence is when someone does something that falls below society's norms for how we want each other to act, and that something then harms someone else. We sue people for negligence all the time: driving, maintaining store produce areas that are not full of dangerous wet patches, medical, legal, accounting malpractice, and more.
There is a famous case, the "Palsgraf" case, that lawyers learn in law school, early on. In Palsgraf, way back in 1928, the United States Supreme Court helped define the outer limits of negligence -- the extent to which you had to be careful to not hurt people around you.
Here is Wikipedia's account of what led to this case:
A passenger carrying a package, while hurrying to catch and board a moving LIRR train, appeared to two of the railroad's (Defendant's) employees to be falling. The employees were guards, one of whom was located on the car, the other of whom was located on the platform. The guard on the car attempted to pull the passenger into the car and the guard on the platform attempted to push him into the car from behind. The guards' efforts to aid the passenger caused the passenger to drop the package he was holding onto the rails. Unbeknownst to the guards, the package, which was approximately 15 inches long and wrapped in newspaper, contained fireworks, and the package exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the platform (although later accounts suggest that a panicking bystander may have upset the scale), which injured Mrs. Helen Palsgraf (Plaintiff).
And based on THAT CASE, an entire genre of Bugs Bunny cartoons was born. Also, every lawsuit in the 20th century.
What that ultimately led to was a variety of different names for the same test, which is the 'proximate cause' test -- did something moreorless cause your harm.
Let's apply that to how you're screwing up your kids by making them sit at the table until they eat their vegetables, and whether your kid can sue you because he has diabetes when he's fifty.
And let's try to answer whether they should be able to do so.
But let's do that next time, as this is already pretty long.
In PART TWO, I will explore the arguments for and against letting your kid sue you for that time you didn't get him the working GI JOE action figure with Real Kung Fu Grip (TM).
In PART THREE I'll see whether or not a court has ever let any kid sue for parenting malpractice.
But for now, I will go eat my breakfast.