God v. the mitigation of damages doctrine: why religion should be considered a pre-existing condition.

• Author: Parobek, Jennifer

1. INTRODUCTION II. CASE AND LEGAL BACKGROUND OF ISSUE A. Background on the Mitigation of Damages Doctrine and Religious Choices B. Mitigation of Damages, Beliefs, and Religion 1. Two Significant Cases 2. Individualized Assessments for Benefits C. Lack of a Realistic Solution III. HOW RELIGIOUS BELIEFS FIT AS A PRE-EXISTING STATE OF THE PLAINTIFF A. What is a Pre-Existing Condition? 1. Mental Conditions 2. Physical Conditions 3. Combination and Other Conditions B. Religion as a Pre-Existing Condition." The Body and Belief IV. POLICY CONSIDERATIONS FOR EXTENDING THE THIN-SKULL DOCTRINE A. Pre-Existing Condition Debate B. Government Recognition of the Conscientious Objector C. Treating Religion as a Pre-Existing Condition Passes Constitutional Muster 1. The Ballard Test Met 2. The Smith and Sherbert Tests Met V. CONCLUSION I. INTRODUCTION

   According to the 2004-2005 United States Census Bureau Statistical Abstract of the United States, Americans identify with at least thirty-five different self-described Christian religious groups. (1) Of those Christian groups, there are at least four that have special tenets regarding medical treatment that are central to their religious beliefs. Together, members of the Jehovah's Witnesses, Church of God, Pentecostal Free Will Baptist Church, and Christian Science Church constitute slightly more than four-and-a-half percent of the United States's total population. (2)

   Jehovah's Witnesses represent the most well known group with such prohibitions on their members' conduct. This group recognizes the importance of modern medicine, and its members receive treatment as most Americans do, with one exception: (3) Jehovah's Witnesses believe it is a sin to receive a blood transfusion, including one's own recycled blood, (4) or to use most types of blood products. (5) Abstaining from these treatments is so important to Jehovah's Witnesses that most of them carry a medical emergency card indicating they explicitly do not consent to such treatment should they be unable to be consulted in the event such treatment may be deemed necessary. (6) The Free Exercise Clause of the United States Constitution requires physicians to respect this request. (7)

   Unlike the Jehovah's Witnesses, some other religious groups have a different view. Specifically, Christian Scientists believe that faith healing is the only true medicine. (8) Members of this group believe prayer is the best treatment for ailments. (9) Members can pray for themselves or may call upon a Christian Science practitioner for prayerful assistance. (10)

   The Pentecostal Free Will Baptist Church (PFWBC) is another minority Christian group that believes in divine healing. This faith believes that "the Bible teaches that the healing provided in the atonement is both spiritual and physical." (11) Members of the PFWBC believe "it is God's highest will for His people to anoint, lay hands on, and pray for the healing of the sick." (12) Nevertheless, although this faith believes "the Bible teaches that there is nothing morally wrong with taking medicine, or receiving human aid, if one is not able to fully trust the Lord," (13) by receiving medical treatment, the logical conclusion is that one who accepts such treatment does not fully trust the Lord.

   Unfortunately, even though the First Amendment of the United States Constitution (14) was designed on our founders' beliefs that religious freedom and the freedom to exercise one's religion were of chief importance, (15) our courts systematically discriminate against members of these minority Christian religions for exercising those very rights. (16) While it is commonly accepted that individuals have the right to practice these medically restrictive tenets, (17) courts still punish plaintiffs by forcing them, when tortiously injured, to choose between what the majority considers "reasonable" and their own religious convictions. (18)

   The public policy behind the mitigation of damages doctrine is sound, but it should not apply when something as sacred as the right to exercise one's religion is involved. The doctrine intends to discourage wasted resources and to promote the least possible loss. (19) Nevertheless, the doctrine does not properly take into account the personal loss a plaintiff is forced to accept by violating his religious beliefs in order to receive a full damage award. Instead, applying the doctrine only encourages courts to judge the religious beliefs of a plaintiff on a "reasonableness"' standard, which is distinctly prohibited by the First Amendment.

   Courts should end discrimination against minority religions by considering plaintiffs who profess such beliefs as plaintiffs with a pre-existing condition consisting of those beliefs. This way, the pre-existing condition doctrine could be incorporated to provide some protection for such plaintiffs, ending their struggle between doing what their religious beliefs tell them is right and receiving just compensation for tortious injuries. These plaintiffs are not seeking extra compensation for their injuries. Rather, they seek permission to exercise their religious beliefs while being made whole as tort law enables other plaintiffs to be made whole.

   The decisions an injured plaintiff must make in these kinds of cases are not a matter of purposefully failing to receive medical treatment just to reap greater damage awards. Negligent conduct leaves these plaintiffs with crippling injuries, (20) lasting pain, (21) or even worse: many have lost their lives from blood loss. (22) Money is not the basis of their decision--following the mandates of their religion is the basis of their decision. These plaintiffs do not sit idly by in anticipation of their damage award, hoping to endure further suffering so to be awarded more money. They are often faced with the awful choice of either living with the knowledge that they have sinned (23) or dying (24) because of their beliefs. The purpose of such a cause of action is to make the plaintiff whole. The negligent action of the defendant, and only that negligent action, put the plaintiff in the position where this choice was necessary. So, why is it that courts tolerate such discrimination?

   Addressing this quandary, in Part II, this note discusses the background of the mitigation of damages doctrine. Next, it explores case history exemplifying the treatment of religion regarding this doctrine. It examines two primary cases illustrating how courts treat plaintiffs who make such a religious choice, as well as several cases that deal with individualized assessment for the receipt of government benefits. This section concludes with a discussion about why the current law does not work to truly protect the rights of plaintiffs forced into such difficult decisions by tortious defendants.

   Part III discusses the thin-skull plaintiff doctrine in-depth and examines the different types of recognized pre-existing conditions. Next, this section presents studies on how the brain processes religion and how each individual's genetic makeup influences one's beliefs. This research gives courts even more incentive to consider religious beliefs as a pre-existing condition.

   Part IV analyzes how and why courts should apply the doctrine of pre-existing conditions to religious beliefs. It discusses how courts already recognize conscientious objectors to war and provide them with a religious exemption to combative duty and how considering religious beliefs as a pre-existing condition is consistent with this practice. In addition, this section illustrates how treating religious beliefs as a pre-existing condition will be consistent with three major cases the United States Supreme Court has issued as guideposts for dealing with First Amendment rights in situations of this nature.

   Part V concludes that the ability to exercise one's religious beliefs is too important to be swept up in the mitigation of damages doctrine when the public policy reasons behind the doctrine are simply meant to prevent waste. Instead, courts should use tools already at hand to offer First Amendment protections to plaintiffs by requiring a defendant to take his victim, as a whole, as he finds him. Religious beliefs cannot be separated from the man simply because they are not what the majority believes is reasonable. Our country was founded upon that basic principle, and to do otherwise allows the majority to impose forbidden value judgments upon minorities.

2. CASE AND LEGAL BACKGROUND OF ISSUE

   The basic premise underlying the mitigation of damages doctrine is to prevent waste, specifically, to prevent a plaintiff from incurring greater injury from the tort than is necessary given the specific circumstances of each case. (25) Still, this doctrine is not unlimited; a plaintiff is only required to act "reasonably" and generally is not required to go to extremes or do anything in conflict with his personal morals. (26) Nevertheless, courts still find a plaintiff who made a choice based on his religious beliefs acted "unreasonably" according to the doctrine of mitigation of damages when his choice was different from that which someone without his beliefs would have made if that person's choice would have resulted in less injury to the plaintiff. (27)

   1. Background on the Mitigation of Damages Doctrine and Religious Choices

      The Restatement (Second) of Torts states the doctrine of mitigation of damages concisely: "One injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort." (28) The Restatement goes on to explain the reasoning behind this rule: "Recovery for the harm is denied because it is in part the result of the injured person's lack of care, and public policy requires that persons should be discouraged from wasting their resources, both physical or economic." (29) Thus, the general damages rule is that "[i]f harm...