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From: doc@cxsea.UUCP (Documentation )
Newsgroups: net.politics.theory
Subject: Re: Re: Credentials, State vs. private
Message-ID: <411@cxsea.UUCP>
Date: Sat, 28-Sep-85 17:41:33 EDT
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Posted: Sat Sep 28 17:41:33 1985
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Mike said:
> > >Remove the restrictions on medical practice, and you open up a huge can
> > >of worms of this sort.  People will choose the quack who makes them feel
> > >best about their medical service; because he tells them "yes, take that
> > >drug", because he makes outrageous claims for their health if they follow
> > >his advice, because he tells them their aura gets better and better every
> > >time they visit.  And how could anyone sue for malpractice, without some
> > >implicit standard of medical practice?  "You didn't diagnose that cancer!"
> > >"That wasn't a cancer, it was an evil spirit, and the patients will wasn't
> > >strong enough.  I can't cure everybody."

And then Rick said:
> > Good point.  But it is their business.  And, as for malpractice suits, 
> > I don't see the problem.  Welders aren't certified, but you can certainly 
> > sue for a faulty weld.  Mike, why don't you get over this nasty itch you
> > have to run other people's lives?
(well, actually, yes. Welders ARE certified, but that's beside the point)

And then Piotr said:
> It not as simle as it sounds.  First, I doubt that you may sue a welder.
> It makes sence to sue a construction company.  If you hire a construction
> company, then you are a developer with suficient recources to perform
> checks on financial standing, performance history and bussiness insurance
> of the construction companies available.  An individual customer does
> not have the recources to do it.  
> The truth is that the medical credencials ARE can of worms even now,
> but most of the existing worms would be alive and well under "free market" 
> system, plus many new would appear.
...
> In the free-market the dominant regulatory role would be placed in
> the legal system, the tort law regulations.  You would not change that.
> In fact, the American health care system is one of the least regulated
> and most expensive in the world.

You don't have to study too much legal history in the US to discover that
most forms of government regulation were created to deal with the fact that
lawsuits are an incredibly cumbersome, expensive and inefficient (that's an
important word to libertarians) way to resolve injuries to people and
property. I see someone else on the net, in another posting to this group,
notes that fraud would be a VERY serious offense in Libertaria.  Well, so
what? Common-law fraud is a pretty serious matter right now, but it won't
solve all problems of professional misconduct. For one thing, fraud is damn
hard to prove. In order to succeed in a lawsuit for fraud you have to show
that 1) whomever defrauded you knew they were defrauding you 2) in a
material way 3) and intended to do so, 4) that you relied on their
misrepresentation, 5) it was reasonable of you to rely on their
misrepresentation, 6) you suffered real damages 7) as a direct result of
your reliance. I think most states require proof on a few other elements,
too. And all that just gets you to the jury! If you think proving all the
elements is easy or inexpensive, think again.

We have a whole bunch of securities laws and regs on the books precicesly
because suits for fraud aren't a very effective means of keeping bogus stock
off the market. If you feel the SEC and the Securities Acts are an un-holy
burden on your sacred right to free enterprise, or whatever, read William O.
Douglas's writings on what Wall Street was like in the decade before the
market crashed.

Rather than do away with regulating the medical industry, I think we should
regulate it a great deal more. Those megabuck malpractice awards you hear so
much whining about from the medical industry don't happen because all
lawyers are slime, juries are mindless idiots, etc. They happen because the
medical profession refuses to regulate itself in any meaningful way, and a
lot of quacks are on the loose. Actually, health care in Libertaria probably
wouldn't be that much worse than it is right now, because the profession is
so poorly regulated right now. The problem is that all of us end up paying
for the malpractice insurance they carry, simply because they won't weed out
the hacks and charlatans from their ranks.

Joel Gilman