Medical Malpractice?

Malpractice lawsuits are a result of angry patients seeking justice through the legal system. It is obvious that most lawsuits are not filed because of a “bad outcome” due to something beyond the control of the medical provider. Medicine is not an “exact” science like saying engineering is. There are a number of factors beyond the control of the provider that can result in a “bad outcome” of one kind or another. Say the individual has a bad heart and dies because their heart simply wasn’t up to the stress created by say an operation.  Or had a fatal heart attack (one of the most common causes of death today). On the other hand if the doctor knew ahead of time that the patient had a bad heart, and continued on with say a “stress test”, then we could say that the family would be justified in having a lawyer file a lawsuit for “malpractice”. However if it is found that the patient insisted on continuing with an action even with warning from the doctor as to the possible results, it would not be the doctor’s fault that the patient died. People can do things that will increase the risk of death even after being warned as to the possible consequences. Continue to eat or drink to an excess, or refuse to take medication for their problems. Of course the doctor should have documented the fact that the patient was warned as to what was now likely to happen if the patient persisted in their behavior or actions. It should be the patient’s own responsibility to decide for himself (herself) what they should do. No doubt lawyers and judges would agree that if the patient refused to follow the doctor’s advice that the doctor cannot be held responsible for the consequences of the patient’s behavior or actions…

There is however another issue where the doctor refuses to follow the patient’s wishes. This relates to the question as to “who” is the legal decision maker here? Who is the one who decides? Under the principles of libertarianism, it is the patient who makes the final decision. After all, it is the patient’s life and health that will be effected one way or another. The legal ramifications of this do have implications as to whether or not the patient is now considered “competent” to make a decision of this nature. Along with the question of is the doctor liable if the doctor doesn’t do what the patient wishes? This is a different situation than what we have in most other situations where there are “alternatives”. Thanks to the “statist” prescription laws, doctors enjoy a legal government enforced monopoly over access to medical drugs. In theory they therefore hold the powers of life or death over their patients. Is this “malpractice”? The courts would have to decide whether or not it is such. In such cases as this the question really comes down to whether or not people can be denied something because a licensed professional has decided they shouldn’t have it?  And what are the doctor’s legal liabilities in a case like this?  I think this an interesting question.


About muskegonlibertarian

77 year old retired owner of a security guard agency. Member of the Libertarian Party.
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