Badges and Bandages

When surveyed, most Americans say they would prefer to spend their final days in the comfort of their own homes. But in practice, the majority die in hospitals, surrounded by unfamiliar people and machines. Worse still, many who die in hospitals shouldn’t be dying at all. Over 100k American lives are lost each year due to medical errors – unnecessary surgery, incorrect prescription, etc – which puts these errors among the 10 most common causes of death in the US, up there with heart disease, stroke, and diabetes.

Medical errors account for a similar death rate in other wealthy nations – Canada, the UK, Germany – and yet, it’s unheard-of for doctors to face criminal charges for murder or manslaughter. To be clear, this is a good thing. It should be very difficult for a doctor, doing their job in good faith, to be convicted of a felony.

Doctors are routinely faced with life-and-death decisions; if mistakes opened them up to criminal prosecution, the country would suffer a rash of understaffed hospitals. Thousands of doctors would go to prison. Rural areas, many of which already face physician shortages, would be hit hardest. The suicide rate among doctors is double that of the population overall; the constant threat of a murder charge would likely push it even higher. And it’s hard to imagine America’s best and brightest stepping up to fill the vacancies – if doctors are treated like criminals, veterinary medicine suddenly looks much more appealing.

Plus, practicality aside, it would be problematic to punish an individual doctor for the failure of an institution. Suppose I’m a medical student… but not a great one. I have some misconceptions about how guts are supposed to fit together. But you give me a medical license anyway, hire me as a surgeon, and put a scalpel in my hand. When I inevitably botch an operation, there’s blood on your hands as well as mine.

Crucially, shielding doctors from murder charges is only half the story. The other half is ensuring justice for the victims. When a slip of the surgeon’s wrist kills or cripples a single parent, perhaps the surgeon isn’t a murderer – but certainly the children have been wronged.

The accepted solution is for victims to take up a medical malpractice lawsuit. This is clearly not ideal. For every dollar paid out for malpractice, 54 cents are spent on administrative expenses. The cost of malpractice insurance can make it difficult for doctors to go into private practice. Most doctors will be faced with a malpractice suit during their careers, many of which are frivolous. Despite these flaws, however, the medical malpractice system serves two important functions:

  • Compensatory damages are paid to help the family recover.
  • Punitive damages are paid as an admission of wrongdoing.

The high cost of malpractice insurance puts providers under constant pressure to improve and reform. Hospital workers are increasingly trained to avoid errors, and studies suggest these trainings are effective. By getting their liabilities under control, hospitals are driving down their insurance premiums1 – and saving lives in the process.

Like doctors, police officers routinely encounter life-and-death decisions. Sometimes they make mistakes, and people die2. Unlike doctors, however, police may find themselves faced with criminal charges as a result. After the death of Michael Brown, Officer Wilson testified in front of a grand jury; after the death of Philando Castile, Officer Yanez was tried for manslaughter.

These trials are sexy – they drive headlines nationwide. But in terms of serving justice and advancing reforms, a civil “police malpractice” suit may be a better bet.

In the Castile shooting, for example, the transcript suggests that Officer Yanez panicked. Charging him with manslaughter glosses over the institutional failures that put him in that situation. Who assessed Yanez and decided he was ready for traffic duty? Who gave him a gun and a squad car and sent him out into the night?

A criminal suit against an individual officer doesn’t just neglect the systemic problems that lead to killings – it actually obscures them. The suit creates a false choice between “guilty” and “not guilty,” tilted heavily in favor of acquittal3. A consistent majority of Americans report a great deal of confidence in the police, and that confidence isn’t likely to be shaken when the climactic headline reads, “Officer who shot Philando Castile found not guilty on all counts.”

In terms of search traffic, the climax of the Philando Castile case was Officer Yanez's acquittal, not the $3M wrongful death settlement. In terms of search traffic, the climax of the Philando Castile case was Officer Yanez’s acquittal. The family’s $3M wrongful death settlement with the city received comparably little attention.

A civil suit can make headlines out of the gray area between “guilty” and “not guilty.” Imagine, for example, if the culmination of the Philando Castile case hadn’t been Officer Yanez’s acquittal, but rather the family’s $3M wrongful death settlement with the city. The narrative would be flipped inside-out: suddenly it’s the police who made mistakes, not Castile, and taxpayer dollars are being spent to clean up the mess4.

Eric Garner’s death at the hands of the NYPD was settled out of court for $6M. Tamir Rice’s death cost taxpayers another $6M. Police departments have balked at the price of body cameras and de-escalation training; perhaps proponents of reform should make sure taxpayers understand the cost of the status quo. There’s no need to draw battle lines between “law and order” and “systemic racism” – just like training hospital staff to avoid errors, this is about getting liabilities under control.

  1. Malpractice insurance follows the same principle as home insurance. Old wiring can short out and start fires, so houses with old wiring are expensive to insure. Updating the wiring in a house is costly and inconvenient, but worth it in the long run – it lowers the cost of insurance, and reduces the risk of catastrophe. 

  2. It’s been noted that police shootings occur in the US far more often than in other wealthy countries. That issue, while important, is far too complicated to handle in a footnote. Here, it’s sufficient to acknowledge that a significant number of people (about 1k/year) in the US are killed by police. 

  3. The law entrusts police with the use of deadly force, so it’s very difficult to prove that mistakes rise to the level of criminal wrongdoing. Police are almost never indicted, and even a truly damning video may not be enough to get a murder charge to stick. 

  4. The city of St Anthony released a statement assuring that the settlement was paid with insurance money, not taxpayer dollars… but the insurance policy is paid for by taxpayers! 

© Charles Fyfe 2019 under CC-BY
uno mas