The easiest way to justify the entire notion of government regulatory agencies is to posit circumstances whereby absent that agency, irreparable harm could come to citizens. “Irreparable” in this context means that the potential injury would not be redeemable via litigation.
For example, if contaminated food were sold, and some consumer were to die of an E. coli infection, litigation is clearly no remedy for the victim. Moreover, rather than attempting to force safe practices retroactively via a stream of wrongful death lawsuits, specific guidelines could be put into place, along with an inspection system combined with penalties. Such an arrangement would be more efficient and would save lives.
That the regulatory apparatus has grown wildly beyond these principles, and even then is not always effective, is hardly an argument against reasonable regulation.
Perhaps the most compelling example of a situation crying out for regulation would be any instance of medical intervention, in which the patient literally puts his life in the hands of the practitioner—having insufficient knowledge to evaluate the quality of his care. A case in point is the recent infection of at least six patients in a Las Vegas surgi-center with the hepatitis C virus.
The infections were caused by personnel, who undoubtedly knew better, deliberately foregoing established best practices to save a very small amount of money. An ongoing investigation by the State of Nevada has revealed more shoddy practices at other facilities, and the clinic in question has been closed. Whatever happens in the wake of the investigation, of course, offers no physical remedy to those infected. It is worth noting that had proper sterile technique been used by the clinic, it would have been essentially impossible to transmit the virus.
Interestingly, there are no laws as such that apply to these matters. Instead, there are many best practices promulgated by various so-called non-governmental organizations (NGOs). While these best practices might affect inspection and enforcement, they seldom become official laws. Not surprisingly, NGOs themselves are not immune to politics and influence peddling, and some have a much better reputation than others.
For its part, the American Association of Nurse Anesthetists (AANA) strongly condemned the malfeasance of the Las Vegas clinic, and referenced an earlier case involving a Long Island pain management specialist, who was under investigation by the New York State Department of Health. This particular doctor had reused syringes to draw up medicine from multi-dose vials, exposing thousands of patients to blood-borne pathogen infection—a slight variation of what happened in the Vegas case.
This same doctor had ten malpractice settlements on his record in the past nine years, and even if he loses his New York license, will probably be able to practice in many other states.
I am not the first to suggest that regulatory oversight in health care is sorely lacking, and that medical licensing boards generally act to protect their own, rather than the patients. Indeed, I am aware of a doctor in California with a perfect record—although a bit of a gadfly— who was quite unceremoniously run out of the business in a simple retaliatory move. At the same time, I could count up dozens of instances of shocking malfeasance that at best are remedied in the civil courts, and never get noticed by the boards.
While no law or regulatory watchdog can completely prevent a determined scumbag doctor from doing the wrong thing, until criminal penalties and nationwide license forfeiture are in place, there will be many more Vegas-type situations.