In the UK I used to argue against the left’s defence of the welfare state. They were right to the extent that more is better than less, but support of the welfare state encouraged conservatism (the welfare state was never that great – it was barely a start), and it was often a parochial defence of OUR welfare state against outsiders. Justin’s and Doug’s tactical approach of defending the status quo against tort reform makes a similar error, but with even lower aspirations. On the purely tactical level, when people propose reforming something bad and making it worse, that sounds to me like an opportunity to put the case for something better. I’m not saying that anyone who isn’t arguing for socialism now is a sellout (on the contrary – anyone arguing that just at the moment is a fool). The problem is that you will be identified with the ‘bad’ institution as it is now. Worse, if the reform proposals are watered down, or even abandoned, because of your campaign, you will be identified with the existing institution. It was by following this route that the European left lost its way by identifying completely with the welfare state.
The one good thing is that some people (a small minority) are able to get some compensation. But Justin’s defence of medical malpractice is absurd. He says that genuine errors despite due care are not actionable, as if there is a self-evident line between these are ‘malpractice’. But Justin, do you know what it means for a doctor to exercise due professional care? You criticised me for talking about law without being an expert, but you imagine that a jury can sit in wise judgment over a professional with decades of expertise and training, to decide if they exercised due professional care? What happens is that the definition of due professional care becomes formalised – did doctors do the right tests and keep the right records – rather than did they do the right thing? I found dozens of articles on the Internet providing advice to doctors to avoid malpractice suits – it was things like, smile at your patient, do lots of tests, and keep exhaustive records. Nothing about being better doctors. In fact, doing lots of tests is itself bad practice. There are risks associated with testing, but no one is going to be sued for being too cautious. So money is wasted and people are put to unnecessary risk, discomfort and worry because doctors are trying to conform to community standards of good medical practice, as judged in the courts.
You talk about community standards and democratic accountability. But democracy is about the formation of a collective will, through a process of conflict. Where is the conflict between doctors and patients? This should not be adversarial, and attempts to make it so will erode trust and harm patient care. Doctors and patients have a common interest in high professional standards from medics, and medics are best placed to fulfil that policing role. Taking it to the courts benefits neither, and it is false to talk about democratic accountability of medical professionals.
A few people get some cash, a lot of lawyers and insurers cream off a lot of money, and patient care suffers. It’s nothing personal against lawyers (I mean, look, I'm a banker!). I’m just arguing that it would be better for everyone if we didn’t have the cost of resolving these disputes through law.
--James
James Greenstein
--- andie nachgeborenen <andie_nachgeborenen at yahoo.com> wrote:
From: andie nachgeborenen <andie_nachgeborenen at yahoo.com> Date: Mon, 22 Nov 2004 05:14:52 -0800 (PST) To: lbo-talk at lbo-talk.org Subject: Re: [lbo-talk] Excessive Lawsuits, Gay Rights, Tort Reform,
But when
> professionals are made
> accountable to external bodies without specific
> expertise, it will
> do no good. If doctors are as bad as you say, the
> answer is not to
> call in the lawyers to do the regulating.
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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