There are also some obviously extremely undesirable incentives if this changed. Some patients (older, with comorbidities) are at much greater risk of complications than others. A surgeon or facility would have a strong disincentive to operate on risky patients at all; or to try to charge them more for the risk.
You’re suggesting in essence a “strict liability” approach for bad outcomes. I think that’s wrong. In principle, I think the current system is correct: that the surgeon or facility should only be liable for negligence, for failing to follow the appropriate standards. I realize, of course, that in practice negligence may be hard to prove.
Add me to the list of people who had a surgery (double mastectomy) but was not sent home with antibiotics. The surgeon’s NP was quite surprised to hear this at my follow-up.
I just looked back at my own records - eight hour operation repairing a traumatic open fracture, so an unusually high risk of infection. But still the only medication at discharge was aspirin. That was after several days inpatient care post-op that certainly included anibiotics. But still, no prophylactic extended course of antibiotics with major wounds that were only in the early stages of healing.
I would actually prefer a “no fault” solution. What we have now is kinda a crap shoot. If the patient can prove malpractice, they get the extra fees covered and maybe get a big payout. If they can’t, they get stuck with potentially massive fees. Both outcomes are problematic, in the usual “there’s a risk something bad might happen” situation.
Workers’ Compensation insurance was invented to avoid that sort of coin toss when an employee is injured on the job. And WC has something called a “second injury fund” to spread the risk of an unfortunate outcome when, for instance, an employee loses a second eye, which is, of course, much more damaging than losing the first eye – but the employer was probably no more at fault than in the case of a first eye. It’s sort of a tax on all policies to pay the higher cost of second injuries.
If we had socialized medicine (or even just true universal coverage) it wouldn’t really matter, because the insurance companies would spread the risk and pay for these things. But we don’t.