February 27, 2008
Crime or Malpractice? In California, Both
The New York Times reports on the prosecution of a California doctor for allegedly hastening the death of a patient in order to retrieve his organs. According to the criminal complaint, the doctor "ordered excessive doses of morphine and Ativan, an anti-anxiety medicine, both of which are used to comfort dying patients." The complaint also charges that the doctor introduced Betadine, a topical antiseptic which may cause death if ingested, into the patient.
“If you think a malpractice lawsuit is scaring surgeons off, wait to see what happens when people see a surgeon being charged criminally and going to jail,” said Dr. Goran B. Klintmalm, president of the American Society of Transplant Surgeons, who added that he considered the case unprecedented.
The patient's mother also has filed a civil suit against the doctor, the donor network, and other doctors in the operating room. The mother separately settled a civil suit against the hospital.
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The doctor has no recourse against the over-reaching prosecutor.
I favor ending all immunities, except any enumerated in a constitution. All others are self-dealt, and violate procedural due process in the Fourteenth Amendment. No judge, no prosecutor, no legislator, no executive officer should be above the law. The King was above the law because he spoke with the voice of God. All immunities thus violate the First Amendment. Liability shrinks a sector. Immunity grows a sector. These case law immunities represent stealthy industrial policy by economics incompetents, on the bench. They killed manufacturing. They exploded their own sector, the lawyer rent seeking business. The legal criteria and logic support immunity for manufacturing, and strict liability for judges. The latter's only tool is punishment, an inherently dangerous, mostly useless activity. We want more transplants, and much less case law, most of which is lawless garbage.
On policy grounds, why shouldn't the doctor be able to sue the prosecutor for legal malpractice? The suit should not be frivolous, and should have a certificate of merit from an expert prosecutor.
Posted by: Supremacy Claus | Feb 28, 2008 10:59:42 PM