As a wise woman law professor in Legally Blonde once admonished: I recommend knowing before speaking.
Motions to dismiss are not “ferociously expensive” since they must be filed typically within 10 to 20 days of receiving the complaint. Your contention that it is “not even remotely difficult” to get doctors to testify to whatever you want is a misconception shared among the Judge Judy watching set, but not actual practicing litigators. (Let me guess: you think this because they’re paid experts, right? Did it occur to you that there’s enough malpractice business that medical expert witnesses don’t need to perjure themselves to make a living as an expert? Sort of like how I believe a Deloitte audit report, even though they’re getting paid to produce it.)
Maybe you could let us know these facts you’ve considered that led you to these conclusions, especially considering how untenable they are.
Medical malpractice isn’t treated significantly differently from any other negligence when it comes to the concept of criminality for “mistakes.”
If we made a crime out of every example of medical malpractice, the likelihood is high that few people would want to be doctors since, despite their occasional arrogance that makes one wonder if they think they are infallible, they really do know they are not.
While I don’t disagree with much of your position, as an attorney who spent several years dealing with the California Workers’ Compensation system I can attest to the fact that there are “experts” in the medical field who will testify to most anything. A lot of my work involved establishing that such expert testimony should be ignored.
If I am parsing correctly (and based on my layman’s knowledge) this is actually the beauty of New Zealand’s ACC system. ACC provides the needed care and rehabilitation - so there is no “need” to sue the doctor to get rehabilitated - the only reason to sue would be to punish.
And if it was a genuine mistake (read not reasonably preventable) there is no need to punish - if its not a “mistake” but rather due to a lack of due care or whatever from the doc, then too right he should face criminal charges.
And let’s not forget that patients themselves sometimes have a hand in poor care. For example, let’s say that the patient doesn’t comply with his treatment; perhaps he doesn’t take his medication regularly and his condition gets worse and he dies as a result. Should the doctor be held criminally liable for the actions (or non-actions) of the patient?
Another issue here is that sometimes patients have unrealistic expectations of care based on outside information from friends, the Internet, books, and other media. For example, let’s say that a patient has a disease with a poor prognosis. She sees a magazine article about the disease that talks about treatments that are effective at an earlier stage of that disease. She then expects her doctor to use those treatments even though her disease has probably progressed too far for them to be effective. The doctor then has to risk a lawsuit because he can’t meet her expectations. Should he be criminally responsible for her death because, in his judgment, he can’t treat her disease in the way she would like?
Not necessarily. Rehab and other expenses (wheelchair ramps, etc) are certainly important, but that doesn’t make a person whole again. Depending on the injury, nothing ever can. If you lose a leg because of malpractice, you’re not going to be satisfied just with having your medical expenses taken care of. You would rightfully want to be compensated for the fact that you’ve lost something essential. That’s where the large damage awards come in. It’s an imperfect attempt at putting a monetary figure on your loss. It’s not punishment (though punitive damages do exist, at least in the U.S.).
Losing a leg is an extreme example, but the same rationale exists for any injury, even if the injury suffered is a minor infection.
There is a program “Mystery Diagnosis” on the Learning Channel. People get wrongly diagnosed sometimes for decades. Often the doctors don’t want to do the extra work to thoroughly check a patient out. They tell them “it is in your head” when it seems like too much work .
TV creates the idea that anything can be diagnosed and cured within a 1 hour time line. It raises our expectations a bit too much.
I’m confused – are you saying there is no civil law in New Zealand, or that there is simply no malpractice in New Zealand?
Separating the medical aspect: What if a contractor accidentally demolished the wrong house? In our country, he would be civilly liable. I can’t imagine the plaintiff would be compensated by your ACC system in your country.
Cardiologist screws up, one person is dead. Airplane mechanic screws up, 300 people are dead. Now, it is true that an airline disaster leads inevitably to dozens or hundreds of huge damage awards, but those are paid by the airline and other deep pockets. A mechanic can be held liable, but the fact that there is no “airplane mechanic malpractice crisis” leads me to believe it isn’t all that common.
Then again, maybe airplane mechanics really don’t make as many mistakes as doctors. Crashes are rare.