The Kiwifruit speaks!
What “clue” should I get? Your inane position that unless you are criminally liable for something you ought not to be held civilly liable?
And I didn’t call your people pussywhipped - for all I know you’re living in some protofascist police state.
Great Debates, friends, not the Pit.
Heh - I do live in what most people consider a police state. But that’s beside the point.
And I was quoting you - since nobody I have every spoken to considers New Zealand a police state, that leaves us with Pussywhipped.
My position is quite simple. If the “mistake” doesn’t rise to the status of a criminal offense, then no - you shouldn’t be able to sue.
I won’t specify what that offense is though - it could be negligence, failure to take proper precautions, failure to exercise due care, fraud or whatever.
It would only make sense to prosecute doctors for medical mistakes if the purpose were punishment or to create a deterrent to future mistakes. That is not at all why doctors get sued. They get sued in order to compensate the victim (non-cynical reason) or to make the victim and his lawyer rich without having to earn it (cynical reason). I think the law and courts recognize that the deterrent effect of prosecuting doctors would be nil, since 99.999% of doctors are already trying like hell not to make a mistake. Otherwise when you went to the emergency room with a headache, you’d be sent home with a bottle of Tylenol instead of being run through a CAT scanner.
Also, one reason doctors get sued at the rate they do is simply that they have the ability to yield up a large settlement, either through their malpractice insurance or their personal assets. I don’t believe doctors make mistakes at a significantly higher rate than engineers, architects, mechanics, or whoever, but they get sued more often because they have the ability to pay. The frequency and size of malpractice suits does not necessarily indicate that there is some kind of crisis in the number of medical mistakes. If other professions were subjected to the kinds of “error studies” you hear about in medicine, the results would probably show that doctors are less likely, not more likely, to make mistakes, judging by the amount of training they have and the existing disincentives.
Not just medical. In Engineering if you design and build a machine that hurts a worker ,you can be sued. You have to have safety very carefully worked out. You have to include every safety device you can think of. They can come after you for damages.
In malpractice suits, a doctor can harm a young child due to his making a mistake. A child may require expensive care for the rest of his life. Who should pay? Malpractice coverage protects the doctor . It also is supposed to help those harmed. But to assume they are frivolous is wrong. A lot of people get hurt by doctors and hospitals.
Maybe not, but their mistakes deal most directly with life or death decisions.
You pay a plumber $100 an hour to repair pipework. If he screws up, you wade around in ca-ca, get it cleaned up, and try again. Not a whole lotta damage
You pay a cardiologist $5000 an hour to repair pipework. If he screws up, you are probably dead. Whole lotta damage
It’s not ability to pay so much as their work deals very directly with the subject matter that lends itself to the highest amounts of economic damages - life.
http://www.nytimes.com/2009/07/12/opinion/12baker.html?_r=1 Most medical malpractice suits involve significant injury . (80 %) One of the good results, is that hospitals are doing a lot more to prevent mistakes. They review procedures and doctors often to eliminate as many errors as possible. They still have a long way to go.
Rumor Watkins, I wasn’t talking about when the radiologist makes a mistake that causes serious consequences. I’m talking about when a patient has a bad outcome that may or may not have been caused by one of the OTHER doctors, and ALL of the doctors involved in the case are named in the suit.
Maybe I’m too cynical, but I believe you can find an “expert” in most any field to testify what you want. Here’s an interesting opinion on the unassailability of the “expert” in a malpractice trial:
As a physician myself, yeah, I pretty much guarantee you that i would immediately quit practicing medicine if there was a reasonable chance that it would wind up causing me to be convicted of murder. Even if I was confident that I would NEVER make a mistake in my job (see below for more on that), I know our justice system is not perfect and there is a chance I could be wrongly convicted based on a judge or jury not having the knowledge of medicine to fully understand the facts of the case. There is also, of course, the chance that a judge/jury could be swayed by the emotional testimony of (for example) some crying mom who just “knows” that it is the doctor’s fault that her baby came down with autism because the doctor gave the baby a vaccine even though there is no scientific evidence to support such a thing. Because judges and juries are human and make mistakes too - but often are not scrutinized for their mistakes in nearly the same way as doctors are since the bad consequences are not as tangible.
Medicine has already reached the point where the career is arguably not worth the trouble (in terms of the time investment, financial cost, and stress that medical training and working as a physician require, while at the same time working longer hours for less money than before). If there was a decent chance that working as a doctor would totally ruin your life with a criminal conviction, I guarantee you that most doctors would have no doubt that left it is not worth it.
Most doctors are sued for malpractice at some point in their career. Sometimes the cases are without merit - just someone who wants money or is angry and looking for someone to blame. However, the reality is, yes, most (if not all) doctors will make a mistake at some point in their career. Fortunately, not every mistake causes death or injury, but sometimes that is just sheer luck, not any reflection on the doctor’s quality. Does it really serve society to throw a large portion of doctors in jail over a mistake?
Doctors are human beings, not perfect gods. It is possible to be a good, competent doctor and simply make a mistake…particularly when you consider the fact that most physicians work under a lot of stress and in some specialties take a lot of overnight call (how many other professions have to make decisions while sleep deprived as an inherent part of their training?).
How many of you would rather have surgery by an experienced surgeon than a brand new resident? Well, guess how that experienced surgeon learned so much - probably by making a few mistakes along the way.
That’s Joint and Several liability for you - and it wasn’t cooked up by greedy parasitic med-mal lawyers existing in a culture of personal non-responsibility just aching to find the next injured party so they can stick it to the doctor.
If you didn’t commit a negligent act, you a) won’t get sued or b) will be able to get out of the lawsuit with haste. if you commit a negligent act, why shouldn’t you be liable?
J&S liability exists because it is unfair for a patient (who is in a far worse position to assess relative negligence between tortfeasors, especially in a specialized field like medicine) to have to spend additional money and resources figuring out what percentage of the injury each party contributed. even assuming that such a thing is possible in a complex incident like a botched surgery.
I hope you don’t think that the plaintiff in a J&S-type liability claim recovers multiple times from multiple doctors for the same incident? You’re either spewing insurance company propaganda or you were merely just misinformed. There’s one recovery, it’s just that we don’t expect the plaintiff to figure out exactly how it’s split.
If a doctor makes a mistake that results in someone needing lifetime care ,what should his end of it be? Should he have no responsibility because he did not mean to do it ? Bush used to call it" hitting the lottery". Does he think a person would live a life of needing complete health for money? But a doctor who puts someone in a wheelchair for the rest of their life should not be able to say" shit happens get over it".
Including all possible defendants is more due diligence than anything I think. There’s often not much expectation that they will all contribute or remain in a case.
As for “experts” there are standards of care that can be commented on by someone with the same education whether they actually practice or not.
Regarding the OP, why medical malpractice shouldn’t be subject to criminal prosecution has been well explained by previous posts. What needs to be prosecuted though are plaintiffs physicians who knowingly participate in fraud against insurers. That’s another subject though.
When you’re doing a complicated job for numerous people, mistakes are inevitable. Putting doctors in prison for something that is almost certain to happen at some point in their careers (and is more likely if they have a more difficult specialty) would have huge negative effects on our medical system.
You can’t just decide that doctors will be perfect or go to prison because the consequences are dire. That just deprives us of doctors. Revenge via prison sentence is no way to run a justice system, or to encourage people to take on an already difficult and stressful profession.
That’s what civil lawsuits are about. They can be sued for malpractice, and forced to pay damages. They shouldn’t have to go to jail for an accident.
Are you opposed to the difference between civil cases and criminal cases in all areas, or just this one? Because I don’t see the difference between malpractice and any other area of civil law.
I agree most malpractice errors should not be jailable. But, doctoring while impaired or on drugs is different.
Bolding mine. Let me answer that directly, and then this will tend to go on to answer the question more generally.
Not particularly. A major reason for it was not (as some suggested) that malpractice awards got out of hand per se, but rather that claims are made so often (often, if not frivolously, then dishonoroubly or maliciously made*) that malpractice insurance premiums are through the roof. Not everyplace is like that, but premiums have gone up across the board, some doctors have actually quit or moved away from areas with shortages already because of it, and the high rates are concentrated in extremely important fields.
Let me be clear: these suits are often not frivolous, but they may be malicious and they are what I call “dishonorable”. Dishonorable means that it wasn’t the doctor’s fault and there’s was little or nothing for the doctor to do about it. People today often have a very hard time understanding why their baby was stillborn, or simply can’t help a birth defect, or even that people sometimes just keel over and die under anaesthetic. It might be some unknown allergy, or another risk factor that couldn’t be foreseen, or simply something we don’t yet understand. It’s often very hard to convince people that even ordinary medical treatments have risk, or that with modern technology and medical skills we still can’t save everyone. And it gets really nasty in cases where possibly there was something which theoretically could have been done but wasn’t practical or feasible.
This happens all the time. And the sufferers or survivors are often mad as hell and want compensation somehow. Or maybe just revenge. But legally and morally they shouldn’t get it.
Likewise, we don’t usually make a crime to make mistakes. It does happen in very rare legal circumstances, but even then it happens only in very limited ways with known risk factors which can be controlled by the guy who’s on the hook. People cannot be 100% 100% of the time, and ultimately the law recognizes that humans cannot and never have been able to act without mistakes indefinitely. In a complex field like medicine, where doctors often work extended hours, see dozens or hundreds of patients a day, and must keep up with medicine’s often confusing and even contradictory advances, it’s simply impossible. Heck, I’d almost rather have a doctor, provided he was conscientious enough, who had made a serious mistake once. That way I would know that he knew he was fallible.
And a doctor totally not seeing the screaming pink folder with a drug allergy written on it in 2 inch letters and deliberately scriping me that specific drug would not be negligent homicide? Sorry, that is definitely something that is a criminal act and deserves slammer time.
I am about to have Da Vinci abdominal surgery on 7/11/09, I do expect a certain amount of risk. I understand the risks involved as I have covered them carefully with my doctor. I am trusting him to operate the machine properly, I expect the rest of the surgical staff to do their job, and I expect the medications given me will NOT include something I have already gone to great lengths to make certain they know I have medical issues with. I have given them a list of my current medications, and I have a schedule for stopping taking them in a specific order to make the procedure go as safely as possible. I do NOT expect them to push something I am allergic to and if I have a random allergic reaction to a med I have never had before, that is not negligence, but if they push penicillin, that is criminal negligence and if I die, mrAru will see to it that someone gets jail time. Short of tattooing PENICILLIN ALLERGY on all the major IV points, and my forehead, I don’t know what else I can do to prevent something that is covered by my charts, records, medicalert tags and ID bracelet I get when I check into preop.
Criminal and civil cases have different rationale. The point of a criminal prosecution is not to punish the offender for his offense against an individual, but for an offense against society itself. It vindicates the people’s interest in living in a lawful society. The point of a civil case is to compensate an individual for what he has lost. The government has no involvement.
If malpractice results in a man losing his leg, he suffers a host of consequences because of that. He’ll have to make significant changes to his life. His physical abilities will be decreased. It may affect his future earnings. If the malpractice occurred because of negligence, society has no interest that needs to be vindicated because society accepts that people make mistakes, so there’s no criminal case there. Under your position, the man who lost his leg would have no other recourse.
Using your definition of “dishonorable” and my knowledge of civil procedure, and in particular, the motion to dismiss for failure to state a claim, the motion for summary judgment, and the need for the plaintiff to proffer expert testimony from a disinterested member of the medical community that the accident indicates that performance was below the appropriate standard of care, I can aver that the only reason you would make a statement like this is that you don’t have the first idea of how a med-mal case is prosecuted. Regrettably, your willingness to pass on matters that you are not at all informed about is a predilection that cannot be called “surprising.”
That was a rather pathetic attempt to (a.) insult me, and (b.) pretend I am talking about something other than what I am talking about in order to argue with me. It fails because these suits generally do not go anywhere, but they frequently are ferociously expensive. Had you read more closely, you might have noticed that I did not pass any form of judgement upon the legal system. And it is not even remotely difficult to get a “disinterested member of the medical community” to say what you want, precisely because the situation is often unclear, or the facts can be presented in a twisted manner.
Sadly, you willingness to pretend to you know all the facts I’ve considered while assuming you know everything is a predeliction that cannot be called surprising.