Tuesday, February 23, 2010

Tort reform - a counter proposal

Recently, Dr. Michael Kirsch wrote a thoughtful argument for supporting Tort reform. While he didn't specify the nature of reform he supports, the general convention for such reform is to limit damages in such cases, typically to $250,000.00.

As I said to Dr. Kirsch then, while I support the general idea of reform of our court system, I do not support this solution. I'll explain below, but more importantly, I feel most of the time if we want to oppose a solution to a recognized problem, we have to offer a different solution, and so I will try to.

First, I see as fundamental to any solution the following goals must be achieved:

1. The conduct of irresponsible doctors must be policed - this country pays for the malpractice mistakes of poor practitioners, through maimed bodies, ruined lives AND financially because the cost of that malpractice insurance (both the premiums and the payouts) are passed along to the consumer.

2. Indigent or poor litigants must not be barred from bringing suit by the threat of the cost, or actual cost of entry. If we set penalties, or threaten them with paying the legal costs - defendants simply will load up their counsel team to make the risk of loss too prohibitive to even allow for real suits to be heard.

3. The number of ludicrous claims must be effectively reduced. While I list this third, it is probably the second most important thing to #1.

4. Malpractice insurance must not be subject to the vagaries and losses of malpractice financial managers investing in the markets, bonds, currency trading, whatever.

I want to spend a paragraph on why I oppose the $250k cap. First and foremost, it doesn't work. In states where such caps exist, rates of inflation in medicine are NO lower than elsewhere. It also fails to prevent frivolous cases. Payments in low-grade (to coin a phrase) malpractice cases are far below $250k, so there is little to no reduction in preventing malicious and meaningless filings. In truth, the only people who would benefit in such a system, would be the insurers, because the cost of answering scurrilous claims, of being deposed for frivolous cases, is not avoided by the physician. Their malpractice cost MIGHT be lower IF their carrier actually passed along such savings, but when was the last time you heard of an entire industry passing along reduced costs realized by what they'd term 'greater efficiency'? Typically, such efficiencies are instead realized as profits. The proof is in the pudding either way, malpractice costs whether lower or higher in states with the $250k cap, have not changed the path of overall costs, health care costs overall are just as high and growing just as quickly in those states, as in states without such caps.

So, with those things being said: I have a counter set of proposals, ones which I hope would NOT prevent legitimate cases from moving forward, NOT prevent poor and middle class victims of malpractice from filing claims, and still hold practitioners accountable only for things which they should be held accountable for.

1. Establish an independent medical review board in each state. The board would consist of both doctors, nurses, and patient rights advocates. This board would hear cases requesting the removal of incompetent doctors. Currently, doctors effectively police themselves, and there is no, read zero, chance to strip a doctor of his/her license without repeated cases of grossly negligent (often in fact criminal) conduct.

2. Establish a separate, but equally independent board in each county which would hear cases of alleged malpractice. Each case would get 2-3 hours (at most) to present it's position at hearing - such hearing would judge based on the merits of reasonableness, not just standards of care, but reasonableness of care, whether the practitioner had acted reasonably - this is a standard used in insurance pretty often, and frankly, it works pretty well. In such a case, have 5 jurists decide the outcome, if the case gets at least 2 votes to proceed, then it can proceed to a normal legal trial. To make it legal (contractually enforceable) as anyone could sue to another court saying their case was being legally squelched - make it binding that any claimant who doesn't agree to this sort of arbitration, as well as any doctor, no longer is eligible for Medicare or Medicaid payments. Anyone who signed up for Medicare as a practitioner would be bound by contract, and you can easily pass a stipulation of benefits that any citizen agrees to such arbitration as a matter of benefit.

3. If a case got only 1 (or zero) votes regarding validity, make the lawyer filing the case pay $500 for wasting the court's time(such fine not to be passed on to the claimant to pay). Make the claimant pay $250 as a penalty. Also, create a tracking system such that any lawyer who achieves 10 such findings against him/her, has their license suspended for a year.

The points are: establish the meritability of the case on reasonableness of health care, not potential provability grounds, nor on 'what the law says.' If it wasn't unreasonable care, then create a small fine for the lawyer, and finally, make it so that someone who engages in such malicious cases routinely gets an applicable punishment. On the doctor/practitioner side, make it quick - showing up for such a hearing shouldn't take all day, shouldn't take hours of deposition, and should be resolved on the grounds of whether the caregiver a good job, not even necessarily the best job they knew how.

The other point is, malpractice protection should NOT be for the insurance carrier, but rather the practitioner who provides decent, adequate, and professional care. If malpractice carriers decide to invest their funds in the stock market and lose, the rest of the country should not have to pay for those losses. Many financial services entities are required (for example, by ERISA) to treat certain funds with 'fiduciary responsibility' as such, they are generally prohibited from risky investment practices. This should be true for malpractice premiums as well.

And then there's this, litigation in this country (and elsewhere) can be abused - heavily abused, of that there is no question, but it is also why we have airbags, and seat belts, and warning labels, and black-lung disease payments, and a whole host of other things which corporations have been made to account for when they acted grossly negligently. Without giving the ordinary citizen the right to hold the powerful accountable, many necessary changes we've made in the country would not exist, and more importantly, the little guy WILL wind up powerless - which is precisely against what we have said all along this country stands for, namely, the tyranny of the majority (or the powerful) cannot (and should not be allowed to) usurp the rights of the less powerful.

Monday, February 15, 2010

Obama is not a strong leader

Recently, the leader of the Taliban in Pakistan was killed by a US rocket launched from a drone. This was a major achievement, and is expected to result in a serious weakening of the Pakistani Taliban. With it, the Taliban and Al Qaeda forces in Afghanistan will also be meaningfully weaker.

Yet, there was little if any fanfare from the Administration. Had this happened under Bush, we'd have had a full-court press from Bush about how meaningful and important and decisive this was, how it reflected just how well Bush was handling the war (think not, go back and look at the grand-standing done when we killed the leader of "Al Qaeda in Iraq", a rather second-rate figure leading a group which didn't have that name prior to our entry into Iraq and which was pretty well a second-rate group in the struggle in Iraq). By comparison, the death of Hakimullah Mehsud is far more significant. He was the replacement of Baitullah Mehsud, who was killed by US forces in August 2009, and his death is meaningful because it shows that Al Qaeda and the Taliban, after seven years of moribund action by the Pakistani and US forces, are under continuing and real threat.

Further, Pakistan has joined the fight in it's northern "frontier" provinces in earnest. This is a major shift of the actions and intent of Pakistan in the past year. It is due in no small part to the threats and pressure placed upon the Pakistani government by Obama, partly in response to needing to distance itself from the ISI-funded terror group which attacked Mumbai, and partly in response to Clinton's visit where the US promised to be more careful and discrete in its use of drones and aeriel bombing. This latter point had been a major sticking point during the Bush years.

Finally, this week, as part of 'the surge' in Afghanistan, the Marines and the Afghani Army have launched a major offensive - this offensive is likely to take several major Talibani strongholds in southern Afghanistan. The question remains open whether they will be held long-term of course, but this is a massive shift of strategic approach from only a year ago where the Afghani government was openly mocked for ruling essentially ONLY Kabul (the Capital).

Each of these three events are significant. They show a combined US, Pakistani and Afghani force taking direct action against the Taliban/Wahabi extremists in an area of the world and in nations in which it is FAR TOUGHER to deal with Al Qaeda and jihadists than Iraq EVER was, on its worst day. Iraq was a secular nation which generally abhored jihadism and fundamentalist Muslims. Hussein rather frequently purged/attacked Sunni and Shia extremists, and he was hated by the likes of Bin Laden for allowing the teaching women in schools, for the embrace of technology, and of course for not seeking to establish a Sunni-lead Caliphate in the way that Bin Laden seeks to do. Iraq was only a hotbed of Sunni extremism because of the colossal ineptitude of the Bush-lead war/occupation there which tortured innocent civilians, and generally considered any concern for civilian casualties or the treatment of prisoners to be 'molly-coddling' in their own words. As Rush Limbaugh famously said, "apparently what the Democrat Party wants to do is offer terrorists therapy" (Ok, that's a paraphrase- but it's damned close to the actual quote) - which he said, and then members of the Republican party repeated, when complaints surfaced about the treatment of prisoners at Abu Ghraib Prison (and elsewhere).

Contrastingly, Pakistan was and is the home of hundreds of Madrasas, religious schools normally founded and run by pro-Wahabi fundamentalist extremists from which suicide bombers are recruited and willing martyrs are sought. These Madrasas were funded by the oil wealth of Saudi Arabia, including Bin Laden's reputed $300 Million. It is a nation with 180 Million people, many of whom are barely literate, and a great number live in barely governed frontier provinces, like those in the Punjab and Kashmir regions. These regions have been the source of outside defeat for centuries (most recently the British were defeated in their attempt to conquer the region in the late 1800 and early 1900's. The Pakistani government signed peace treaties with the Taliban in 2008 to allow them to control sections of important roads and areas - a peace treaty which has subsequently been torn up as the Taliban proved to be untrustworthy (I suspect so did the Pakistani government). Afghanistan, if anything, is even MORE difficult to control, as the Soviets found out. Yet, when we invaded in 2001, we found ourselves welcomed by a people tired of being brutalized, brutalized by the Soviets, then the warlords, then the Taliban. All we had to do, according to Afghanis, was establish something which was moderately effective and importantly, not blatantly corrupt. Instead, whether due to negligence or overt hostility, the Bush government allowed EXACTLY the same type of government which preceded the Taliban, i.e. one lead by warlords - which the Afghani people had already rejected in place of the Taliban - to return. Consequently, the country slipped inexorably back into the hands of the Taliban. Afghanistan became probably the most corrupt nation on earth under Bush's leadership and our occupation. Estimates put corruption at 20% for any action, meaning, in addition to taxes, you had to pay 20% of your salary to just get ANYTHING done. The people were furious.

Obama insisted on a major change in the Karzai government, and has insisted on the placement of officials not for nepotism or favors, but based on seeking to employ those who aren't corrupt. It's not changed things much YET, but it IS a start, and vastly superior to the apathy and neglect heaped upon the nation by Bush. Afghanistan is the FAR HARDER war to win, but as can be seen by these three events, progress is FINALLY being made. Will it result in some sort of stable, non-extremist government, I don't know, and I can't say. I advocated leaving because I thought we'd gone too far, lost too much, to have a chance. We may not win, but I was wrong, and we have a chance.

The shame of it all is, despite these MASSIVELY more meaningful events than anything Bush ever accomplished in Iraq, Obama is seen as weak. He is anything but in terms of placement of military leaders, of insistence on listening to military and intelligence experts, in terms of gaining the cooperation of reluctant allies, but he IS in terms of holding his political opponent's feet to the fire. In short, Obama may win all the battles, but lose the war (of popular opinion) because rather than engage in the same kind of mean, but effective politics Bush so ably engaged in, Obama desires to be "Presidential" and tactful. If he continues to be unwilling to call a spade a spade, he will see his majority in the House shrink to a very small number, and possibly lose his majority in the Senate - and with it, he will become an impotent President - and with THAT, he likely will not win reelection in 2012, and we will put back in place the same kinds of mendacious people as we ousted in 2008 from the White House. We'll have President Palin or President Huckabee or some other Limbaugh boot-licker who will again neglect Afghanistan and Pakistan and we will see a resurgent extremist movement. If Obama doesn't get that his job is to protect the country first before his legacy as a statesman with a virulently uncooperative Republican party which has shown time and again it puts party and political victory FAR ahead of country - then he is a weak leader and the country will follow him and his legacy down the rat-hole.

Sunday, February 14, 2010

Happy Valentines Day to Penigma Readers!
May you each celebrate this day
by loving well and being well loved
in some special way.

Thursday, February 11, 2010

Tinker, Tailor, Soldier, Sailor

The KSM trials will not be held in New York.

This much is not news, it was inevitable. Even if the trial had started in the city, a change of venue request would have been considered and resolved before the opening arguments were given, and the process for finding another county in New York in which to hold the trial would have taken place. So the recent decision not to have the trials in New York city saves 'We the Taxpayers' a few weeks and a few dollars. Huzzah.

The real issue is whether or not KSM (Khalid Sheikh Mohammed), the alleged but obvious mastermind behind the 2001 terrorist attack should be tried by a civilian court or by a military tribunal.

I believe that the main reason that many people assume that KSM should be tried by tribunal is that he is not an American citizen, and therefore not a civilian. This is erroneous because it assumes that the status of “civilian” is reserved only for Americans. I’m sure there are plenty of Europeans (to name a few) that consider themselves civilians. [Tomorrow’s headline: ROMAN POLANSKI TO FACE MILITARY TRIBUNAL.] KSM is a civilian, if not an American. But this does not preclude a military tribunal. After all, civilians can also be soldiers. Anyone who is a prisoner of war is subject to military tribunal. KSM is most definitely a prisoner, but prisoner of war?

Five men do not an army make.

What are the grounds by which these terrorists are considered military? They are not soldiers. They are not generals. They are evil mass murdering madmen.

That is not to say that we are not at war.

We declared war against Iraq. They were not affiliated with Iraq. We declared war on the Taliban. They were not affiliated with the Taliban.

If a handful of Canadians took down the Sears tower [or whatever they call it these days: money well spent, Whoever Owns the Old Sears Tower] they would not be tried as soldiers, they’d be tried as civilians.

You could argue that they are war criminals because we are fighting a “war on terror”. But we are also fighting a “war on drugs.” When we catch drug dealers and smugglers, we don’t open up tribunals. If that were the case MPs and tanks would be patrolling the corners in Baltimore and Washington.

Conservatives like to lob accusations at Democrats of being fascist, of using the government to oppress the people. What they are asking is for the military to be given powers over civilian matters. I do not personally put a lot of faith in slippery slope arguments, but conspiracy theorist conservatives should be concerned that such a move will eventually lead to martial law. I just want to point out that in the historical pattern of fascism the government does not take over the private sector until the military takes over the government. So people that accuse liberalism as fascism should keep their eye on the military more so than the White House.

Many conservatives equivocate in their translation of “jihad” as a holy war. The terrorists declared their attack as an act of jihad, and conservative America is all too anxious to embrace both aspects of that claim, “holy” and “war.” It makes us feel so very special when God and Country are on the line. We want to believe that our loved ones died for God and the U.S.A., not for Being In the Wrong Place at the Wrong Time and the Borough of Manhattan. The unwilling sacrifice made by the victims of 9/11, including the families, friends, and loved ones of those lost is no less grave or meaningful if you call it a war or an attack. Trying KSM in civilian court will not change the fact that New Yorkers died for their country.

Surprisingly most opposition to a civilian trial for KSM seems to be that it will somehow lead to his acquittal (e.g. Congressman Peter King). Personally I find the opinion that 12 New Yorkers will unanimously find KSM innocent is downright laughable. Even if the defense manages to get 12 Muslim Arab-Americans on the jury, I hardly think they will be falling over themselves to thank KSM for the treatment they’ve been getting in their own country over the last ten years. I think it would be appropriate to give New York City the pleasure of convicting the man that attacked their city, and I wish they would have had the chance.

Of course, realistically speaking, a change of venue would have been inevitable anyway. Even if it wasn’t, there were still the complaints of the added security and its affect on local businesses. This takes us from the debate over whether or not KSM should get a civilian or military trial to the discussion of where the trial should be held and this discussion comes down to one thing.


The mayor of Newburgh, NY is begging to have the trials in his town... presuming that someone else will foot the bill and bring business to his town. Bloomberg and other city politicians were itching to have the trial in their city, but wanted the White House to foot the bill. Local business people were all in favor of having the trials downtown until they realized that it's not the sort of circus that sells popcorn, it could stretch out over a matter of years, and that the security measures would drive away business.

That this was even a political debate demonstrates nothing else than the state of bipartisanship in America today. When Holder announced his decision, anyone with a political affiliation was itching to find out what side of the fence they were supposed to be on. The blogosphere lit up with various concoctions of how the matter had far more at stake than money, to herd everyone to their designated political seating arrangements. Now that the Big Apple has been eliminated from contention as a location, the bipartisan buzz has died off revealing the real matter: a fight among Democrats about money.

So who should foot the bill?

If I had to venture a prediction, I would expect the same game of musical cities that was inevitable as soon as the closing of Guantanamo was announced. The Feds who are best equipped, will handle the trial in a smaller town which will cut down costs. It will probably be a once notable suburb that wants back on the map for something. And the collection plate will be passed from city to county to state before making the Federal rounds to pay for everything.

If it were up to me?

If the concern is strictly financial I'd set up a military tribunal. It would still cost the taxpayers millions of dollars, but government could bury it under discretionary spending which would keep the general public from further politicizing something that's completely out of their hands anyway.

Tuesday, February 2, 2010

Tort Reform vs. Defensive Medicine:

Dr. Kirsch - Michael - has been kind enough to offer us three articles on tort reform; what follows is the first. Welcome to our new commenter and now, guest author, Dr. Michael Kirsch of MD Whistleblower blog.

In my 20 years of medical practice, no issue provokes more physician angst than the unfair medical malpractice situation we physicians endure. It is the wound that will not heal. Physicians pursue one primary strategy to protect ourselves at the expense of our patients and society; we practice defensive medicine. Defensive medicine is omnipresent and burns up billions of health care dollars that we need so desperately.

Defensive medicine, I strongly believe, is practiced by nearly every physician in the country. If you suspect that this is hyperbole, ask your own doctor, although you may find him defensive about the subject. It’s not actual lawsuits that are suffocating doctors; it’s the fear of of being sued. The aura of litigation hovers in your doctor’s office during your office visits. It's like carbon monoxide. You can't see it or smell it. But, it is real and it is potent.

Attorneys and others reject our defensive posture. They argue that we should simply perform tests and treatments that are medically necessary. Good medicine, they claim, will protect us. Their truth, however, will not set us free. A physician who has a dagger raised above his head cannot ignore this threat when advising patients. ‘Good medicine’ won’t stop a case from being filed against an innocent doctor. A system that can ensnare an innocent physician for months or years is patently defective. We practice defensively as a filter to keep us out of the medical arena in the first place. If we are ultimately released after discovery and depositions, from a case that should never have involved us, we don't agree that our belated dismissal is evidence that the system is working.

Casey Fiano at American Issues Project blames avaricious trial lawyers for forcing physicians to become diagnostic testing machines. I don’t. While I agree that many trial lawyers have lost sight of the noble mission of their profession, they are operating within a corrupt, but legal system. We need new rules. If football games had no rules or referees, then every game would become a melee. Would this be the players’ fault?

Overlawyered points out that many unnecessary hospitalizations result from physicians who want to minimize their legal risk. Do patients want this? Ironically, a hospital, a big building stuffed with germs, should be the last place that any patient wants to spend a weekend. Of course, once in the hospital, defensive medicine goes ‘viral’, as consultants carve you up according to their organ of interest.

WeStandFirm points out that none of the players supports defensive medicine. The ordering physicians don't like it. The radiologists reading these unnecessary scans don't like. Insurance companies don't like it. Patients don't like it. Yet, we physicians practice it every day.

Happy Hospitalist summarizes the situation with simple elegance. Rarely will a patient get only what they need to make the diagnosis. They get far more than is necessary. You can call it good medicine. I call it fear.

I remember our athletic coaches who always emphasized how important defense was. Defense wins ballgames is still a classic sports maxim. This strategy, however, is wrong for doctors. Medicine should not be a contact sport. When defensive medicine triumphs, then patients lose. Does the public want a system that forces physicians to order tests and medical care that it doesn't need? Tort reform, while imperfect, can help heal the wound that harms patients, incinerates a fortune of money and abuses the medical profession. Aren't these 3 defects worthy of reform?