June 29th, 2023

Medical Malpractice As Performance Politics

Some of you may have heard of this thing called malpractice insurance. It comes up in medical shows like House or Grey’s Anatomy, and it’s like an actual real thing that those fictional characters would absolutely need since they are almost routinely breaking the law or at least ethical standards. It’s a thing for therapists, too. We mental health professionals make waaaaaaaaaaay less than doctors, so it’s less malpractice insurance, but still very much a thing. We have ethical standards we abide by and practice under, and these standards along with state guidelines mandate how we can legally operate under our license. If we don’t do that stuff, we can lose our license and be sued, hence, malpractice insurance.

Now none of this is very exciting information, nor is it news for most people. However, I bring it up to highlight that it’s a topic I’m intimately familiar with as a licensed professional. So when politicians pass laws that go directly against ethical standards, large amounts of peer-reviewed research, and would cause harm to clients, I get a little fired up as these non-professionals muck about making it nearly impossible to practice ethically in some states. And these bad faith actors should be sued and held accountable for the harm they are willfully, knowingly doing. How can I say that they are knowingly and willfully doing harm? Because they need to find “experts” or “research” that is so against the established practice norms that they are sifting through mountains of evidence to cherry pick debunked or outright false information. Or, and this is actually worse, they’re just making shit up. And like, at first blush maybe making it up doesn’t seem as bad, because then they’re not willfully and knowingly ignoring literal libraries of information, but it squarely lands them in medical malpractice to just make shit up while trying to regulate a field in which they have no training. 

And let’s not make this overly complicated here, they are trying to practice medicine with these laws. Some of the laws banning gender-affirming care are specifically about medical practice, and some wade into mental health practice as well. Again, just to highlight the overall point here, mental health or medical care being legislated by non-experts is a terrible idea. First of all, non-experts have no context. Gender affirming care bans cannot ever be specific enough to limit the scope, there will always be collateral damage. Obviously, if you’re a bigoted politician, harming trans people is the point, so that’s a success, but hormone replacement therapy is used to treat some symptoms of perimenopause, menopause, and osteoporosis. Your average, run-of-the-mill steroid treats a ton of things, and that’s just a ton of testosterone that also will amplify certain gender markers. So, “gender affirming care” as anti-woke bigots talk about it doesn’t really exist, it’s more complicated and a wider scope of things, and the bans that were started to “protect children” (they absolutely did not do that) are starting to get tested to limit adult medical care as well, with consequences that untrained people could not have expected, but the experts are like, “duh, we told you this would happen.” And this stuff happens all the time, right, politicians are idiots, and only some of them are competent enough to seek out the appropriate experts. So that brings us to the second fun alliterative element in the title, performative politics. 

These bans are not meant to stick, they are meant to stir up a political base. The bans are blatantly unconstitutional (we just saw a legal smackdown of an early ban in Florida from a federal judge), but the idea is to create a chilling effect, move goalposts, and to create an enemy to get worked up to fight. The red scare, the satanic panic, the war on drugs, all these weird moral panics that have no basis in reality and certainly have no data to back it up. Anti-wokism is the same thing, since woke can get defined to include anything you want to demonize. From a high level legal theory for law school students (CRT) to Bud Light, anything you want to attack can fit under this amorphous label that is so far removed from a usable definition. But performative politics “boycotting” a major beer company is so much less damaging than the real-life effect of performative politics trampling ethical codes and moving into the space of medical malpractice. This nonsense needs to be called out and there need to be real world consequences in court with heavy financial penalties to curb this harmful political theater. It’s gross.