The lives and limbs of persons with disabilities are no less precious than those of temporarily able-bodied individuals. Yet this obvious proposition of equality is not much evidenced in state tort or federal civil rights litigation. Although actions for injunctive relief for violations of the constitutional and statutory rights of persons with mental disabilities are now common, actions for recovery of damages due to the inadequate care of these persons are all too rare, even when those labeled as mentally ill or mentally retarded have been seriously harmed. The paucity of damage cases is particularly striking given the well-publicized inadequacies of mental health and retardation service systems. Historical reliance on large institutions as the primary means of caring for those believed to have mental handicaps has subjected millions of vulnerable citizens to a regimen of abuse, neglect, excessive restraint, mind-altering medications, and experimental treatment devices. This regimen is not the product of sporadic incidents in isolated settings, but rather of a pattern discernible in many public and even some private facilities. It has directly and proximately caused the death, disfigurement, prolonged pain, and regression of thousands of disabled Americans. For some, it may even have been the source of, or at least the primary contributing factor to, their disabilities.

In this context of pain and harm, one would think damage actions would flourish. Tort law has traditionally provided remedies for personal injuries, ensuring vigorous advocacy for the victims and demanding adequate compensation through creative calculations of suffering and ingenious concepts of legally cognizable wrongs. By attaching legal and financial penalties to subnormative behavior, the tort system serves as a general deterrent to injurious conduct. Given the plethora of pain and suffering imposed upon residents of public mental institutions, a more natural forum for tort and civil rights litigation could hardly be imagined. But instead there has been silence. Lawyers, like everyone else, accepted the veil of invisibility and the paradigm of beneficent protection which pervaded the lives of those labeled as mentally ill and mentally retarded.

This deficit was not unique to the law of remedies. It pervaded the professional standards – or lack of them – that governed the care of individuals with disabilities. While government regulations and the protocols of selected professional associations stipulate certain preferred treatment practices, most aspects of care have been unaffected by existing standards.

Recently, the legal profession has recognized the potential for new clients, substantial damage awards, and the challenge of reforming the quality of clinical care offered to persons with disabilities. Nevertheless, much of this new awareness reflects old values. The initial recipients of this new attention were not the institutionalized disabled who had been damaged by inadequate or deleterious care, but instead either infants who had become disabled through negligent medical care or nonhandicapped individuals who were victims of the dangerous conduct of a few persons with disabilities.

It is only in the past decade that a more enlightened understanding has emerged concerning the potential of damage actions to address a broad range of harms suffered by vulnerable citizens. Actions are being brought on behalf of those with handicaps, not because they were born wrongfully, but as a result of the inadequacies in the care and support services offered to sustain them. The consequence, if not the intended purpose, of some of these cases is to establish or extend the legal standards which govern the care of disabled citizens and thereby to enhance the quality of services provided.

This Article explores the reasons for this historical pattern of inaction and then analyzes the potential for invoking traditional damage remedies on behalf of those with mental disabilities. It then focuses on several questions: Can damage actions be an effective means of enforcing existing standards of care for persons with mental disabilities? Can such actions contribute to the reform of the mental disability service systems by defining new standards of conduct for mental health and retardation professionals or institutional caretakers? Is the ability of litigation to establish standards or to reform systems dependent upon substantial court awards or settlements, and if so, are disabled victims of harm likely to receive adequate compensation from juries or defendants? The Article argues that with skillful advocacy, damage remedies may not only be useful in compensating victims for their injuries, but may also be a creative strategy for reforming the very systems of care which occasioned the harm. These reforms may result in either the definition of new standards of care or modifications in the behavior of mental health and retardation professionals.