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Comment by pewpewlasergun | Hacker News Reader

Do you have any sources on alternative systems of accountability for doctors? Or that go a bit more in depth about how they are unique in self-regulation? I haven't heard of this before, so thanks!

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So in most negligence cases, plaintiffs have to prove that the defendant failed to exercise "reasonable care." That is to say, the defendant failed to live up to the standard of caution that society had established for his activities. The standard is context-specific, but is almost always an objective one. What would a "reasonable person" have done in that situation? What would a "reasonable store owner" have done about the ice on the sidewalk in front of his store? In answering this question, the jury gets to impose its understanding of how an ordinary person should behave. This is true even in technical situations. Engineers at car companies are ultimately held to the standard of "did they behave like a reasonable person would?" Expert testimony can help explain to the jury what it needs to know to decide that question, but its the jury that gets to decide where the bar should be.

Medical malpractice is different. In medical malpractice, the relevant inquiry is: "what would a reasonably competent doctor practicing in a similar community have done?" That is to say, medical communities (e.g. rural hospitals in TN or urban hospitals in NY) get to establish the standard for how much caution doctors should exercise. Expert testimony is admitted to explain to the jury whether or not the doctor adhered to those standards. The jury doesn't get to establish the standard, only to determine based on expert testimony whether the standard was met.

The practical takeaway is this: "most deep oil drilling engineers do this" is a far weaker defense in a regular negligence suit than "most doctors do this" is in a malpractice suit. The medical profession is allowed to regulate itself in a way that say oil drilling companies are not.

As for alternatives, here's one paper that gives a pretty good literature review and suggests some alternatives: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3195420/

Richard Epstein's (a very prominent law professor) suggestion is to let patients contract with hospitals ahead of time to agree on dispute resolution mechanisms: http://online.wsj.com/article/SB124631652544770707.html

As a general matter, there are a fixed set of ways to deal with this kind of problem. You can have private litigation (as in the malpractice system); you can have government regulation and enforcement (e.g. as in environmental protection); you can have administrative claims systems (e.g. as in workers compensation or no-fault auto insurance).

The alternative to the malpractice system is one of the above. It's not capping damages for a grossly negligent baby delivery to $50,000 despite the fact that it could easily be an injury of several million to the baby and his family (and ultimately to society through lost productivity).

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