Yes, there is malpractice, but our current system is insane.
What can you say about a "healthcare" system in which 99% of all physicians will face a malpractice claim in their careers? According to Malpractice Risk According to Physician Specialty (The New England Journal of Medicine), "It was estimated that by the age of 65 years, 75% of physicians in low-risk specialties had faced a malpractice claim, as compared with 99% of physicians in high-risk specialties."
1. A duty to treat - there has to be an established doctor - patient relationship. A typical example would be someone who corners me at a party and asks me what I think is causing their abdominal pain. I give them my card, ask them to make an appointment for a check-up, they never do, and the pain turns out to be fatal cancer - in that case I had no duty to treat.
2. Failure to practice the standard of care - note - this does not mean the BEST care in the world - it means the average, or median standard of care.
3. A physician in the same specialty willing to testify that the doctor practiced below the standard of care - all States require this.
4. Causation - the substandard care has to have caused the patient's problem - again, this requires expert physician testimony.
5. Damages - if the substandard care causes no damage, there is no basis for a suit.
Now, I ask you - how can 99% of obstetrician gynecologists, neurosurgeons, emergency physicians, neonatologists (pediatricians who take care of premature babies in the neonatal intensive care unit), and other high-risk specialists practice worse medicine than average? It's mathematically impossible.
By the way, in the back of law journals are ads for medical expert companies that promise they will get a doctor to testify to anything the lawyer wants.
Yes, there is malpractice, but our current system is insane."
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Gordon Long and I discuss The New Nature of Work: Jobs, Occupations & Careers (25 minutes, YouTube)
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