Actually, the body that does the regulating in a med mal suit is the community, as represented by the jury, which applies community standards of due care. Not some specialista agency. Not a panel of judges. The lawyers only act to bring the plaintiff's complaint or defend the physician. They neither set nor apply standards. Btw Tocqueville praised the institution of the jury trial for its democratization of many aspects of life, including (though not in his day) professional standards.
>
> Inevitably some doctors will perform below the
> average. Not all
> doctors are as good as we would like. But that's not
> a cause for
> resort to law. Unfortunately, we won't all be
> operated on by the
> best surgeon. Some of us will have to be operated on
> by a first
> time surgeon. But I'm afraid that this is just bad
> luck.
My last explanation was apparentnly not dclear enough. If you are fucked up because a competent medical professional, whether a first timer or a an old pro, whether first in his class at Harvard Med School or last in his class at Podunk Chropractty Institute, makes a mistake or a wrong judgment, but has exercisaed due care, you are out of luck, Med Mal liability is not insurance that everything a doctor does will work, A doctor has a license to destroy your life, kill you, disfigure you, or just fail to cuee you -- as long as his mistake occurs during his exercise of reasonable professsional care. If you cannot show that the Dr. failed to exercise such care, you have not established an essentil element of your case. We are not talking about strict liability for error. Under negligence law, of which med mal law is a branch, the Dr. or his insurance compnay need only pay of he was negligent. Roughly that means unreasonable careless as the community understands those terms. I don't know if I am now being sufficiently clear, but my point is that a Dr. is not liable for anything that goes wrong. Honest mistakes are not actionable. OK? He is only liable if he is careless.
There's
> an interesting parallel here with the distribution
> of performance
> of fund managers, which is close to what one would
> expect from a
> random distribution.
The analogy is rather this. Suppose your fund manager
gives you bad advice and you take a bath, like mine
did. AS long as he did reasonable research and made
his judgment within what the community, represented by
the jury, would accept as the bounds of resaonable
care, then you're just out of money, too bad. But
suppose you cam show she that he didn't do any
research, picked stocks by throwing darts at the WSJ,
or worse, recommended stocks because of kickbacks paid
to him by the funds or by the company, then he has
failed his duty of care -- a duty of law -- and other
things being equal, is liable to you for damages for
negligence if not fraud.
>
> Meanwhile, the US medical sector offers probably the
> worst value
> for money in the whole world. Socialised medicine is
> not the
> most difficult argument for the left by a long shot.
> So why are
> you all retreating behind tactical support for a
> litigeous
> culture that probably harms health care? (Even if
> neither Doug nor
> me can quantify the extent of that harm.)
You still don't get it. We all here to a person openly support national health and would do so o=in any venue, however timid we might be about talking aboiut socializing the means of production. However right now there is a movement, powerful, successsful, to cap med mal recoveries. That needs to be opposed. Opposing it is not a retreat from socialized medicine. It is just another essential rearguard action in keeping or regaining rights that we have under this lousy system. So to be clear:
Socialized medicine, YES! *THough we won;t get it in a 100 years).
Med Mal recovery caps No! (though it will be hard to roll these back where they have been instituted and to stop them in Congress. Still, nonetheless possible in the short term.
I hope this helps.
>
> James
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