So, earlier this week I thought I would write yet another blurb about healthcare, given the president’s address to Congress last Wednesday. Then, I read a report about campaign finance reform and the U.S. Supreme Court’s scrutiny of over a hundred years of jurisprudence concerning corporations’ ability to contribute money to campaigns and thought I would write about that. And THEN I read about how medical malpractice reform is cited by some as a key component of cutting health care costs. And again I read about protestors converging on Washington to protest… pretty much Washington itself. (Funniest thing about the article I read about the protest this morning was the difference in the estimated size—the principal organizer referenced “1.5 million people.” The AP and other organizations (not affiliated with the organizers) estimated “tens of thousands.” That’s quite an exaggeration! I think I spot a pattern here…)
So, I’ll take these one-by-one and offer up a few quick observations:
Medical Malpractice Reform
I was frankly a bit dismayed to hear Obama reference medical malpractice reform as an idea from the Republicans that could be incorporated into health care reform, ostensibly to control costs. Typically, when you hear “medical malpractice reform” that means hard-line caps on damages in lawsuits, a sort of brutal slapdown to people who’ve been hurt in my opinion. Such caps are appealing to people who don’t understand the legal system, because there seems to be a simple one-to-one connection: hey, let’s limit recoveries on these lawsuits, and insurance rates for doctors will go down, and maybe costs will go down, too. There are *so* many problems with hard caps on recoveries that it is sometimes difficult to sit down and talk through them all.
The first and I think biggest problem that non-lawyers don’t understand is that caps on damages don’t limit frivolous lawsuits. Frivolous lawsuits don’t go to trial and don’t end up with a big judgment. They get dismissed by a judge on a pretrial motion. Or, if there is enough doubt to go to trial, a jury reviews the evidence and determines whether or not a doctor has committed negligence—that is, screwed up and hurt someone really badly. Thus, a hard cap only limits damages for people who got really hurt as a result of a serious infraction on the part of a doctor, nurse, hospital, etc. E.g., to take the easiest example, “whoops, we amputated the wrong arm! Sorry, we’ll just have to go in there and cut off the right one tomorrow. Too bad you’ll be armless, but hey, mistakes happen, right?” (And yes, this does really happen).
But wait, you say—okay, maybe you don’t say, but let’s assume for the sake of argument that you did—aren’t these caps only on “pain and suffering” damages? Sometimes. That’s the current proposal from some in Congress. You could still get some damages for loss of lifetime income. But let’s take an example where that is not going to help. Let’s say that as a result of a doctor’s negligence, you lose an arm. Ouch! If you’re a high-caliber pianist, you’re likely to get a serious lifetime income award. But what if you’re a financial analyst? Or a customer service rep? It might be inconvenient to you to do your job one-armed, but no one would seriously argue that you couldn’t do it or that it’s going to seriously limit you in your career. You’re not likely to get much for that.
Doesn’t that seem wrong? Seems wrong to me. If someone cuts of someone’s arm (or kills someone, say), there should be financial recourse for that.
Second, does limiting recoveries in medical malpractice cases actually lower health care costs? The assumption is that those savings would be passed along to consumers. It’s also assumed that doctors would no longer practice “defensive medicine,” ordering unnecessary tests and treatments. Sounds reasonable. The problem is, there is no data to back up these claims. In fact, the most recent study I could find cites that medical malpractice premiums represent one-half of one percent (0.5%) of total health care costs in this country. That seems a fair price to pay for legitimately injured people to have some kind of recovery and peace of mind. It also confirms what I’ve understood based on reading I’ve done over the years: premiums have more to do with prevailing interest rates (as a result of insurance companies being big financial companies nowadays) than they do with lawsuits. This just proves that sometimes you have to look deeper, that the intuitive, simple “logical” link is not always the right one.
There is much more to say about this topic, but I’ve got other things on my mind. I hope I’ve at least created a little doubt in the minds of those who think that doctor’s negligence damages caps are the holy grail to controlling health care costs.
Healthcare Reform in General
A couple of months ago, I suggested that the best way to reform healthcare would be to separate the unholy union between heath care insurance and the provision of health care, push insurers back to providing insurance rather than health care plans and require everyone to get catastrophic health care insurance (among other things). I recognized then as I recognize now that it is simply not politically expedient to tell all of America that we are completely blowing up the health care system that you know. You couldn’t change things that dramatically; i.e., you had to be able to say, as Obama said, “if you’ve got your employer-provided health care plan, there will be no change, you can keep it.”
But he did go with the mandate idea and used the same analogy I did: the analogy to automobile liability insurance. (Not that I claim any ownership of the analogy; and, in fact, it serves to show the efficacy of the comparison, because it is so obvious). I think it’s a great analogy, though it’s not perfect, obviously: driving a car is something that you can choose not to do (of course, outside of the northeast, forget it! This is America, we drive cars!). It’s also not a “right,” in the sense that health care is or may be (I’m not going to discuss this concept, but my inclination is that it is a right). But it provides an excellent justification for the mandate. The seat belt law is another good analogy—yes, you give up the “freedom” of being stupid and driving without a seat belt, but your liberty is infringed upon because the cost that saddles the rest of society is too great. Politicians have been so afraid to discuss the requirement of obtaining insurance, but the example is right there for us. I’m happy that Obama showed the grit to lay it out there.
It Was the Supreme Court, Stupid!
Remember the 2004 presidential campaign? There was sort of a sense of low expectations for both candidates from the perspective of what the individuals themselves would do in the office of president. The race became more about the “issues” (or did until Kerry was swift-boated). On one side, you had neo-conservatives playing up the fear of terrorism and, in this writer’s opinion, intentionally conflating the war in Iraq with 9/11. On the other side, you had growing skepticism of the reasons for the war and the foundation and trustworthiness of the sources suggesting the imminent production and use of WMDs (weapons of mass destruction). On one side you had the typical social conservative overweening concern with right-to-life issues, while on the other side you had right-to-choice issues and stem cell research (though that became a bigger deal in 2006). People did not see either candidate for the presidency as an inspirational leader, generally. The argument can be made that the better spin doctors won that election. But that is another topic (and one that I discussed briefly earlier this year when Obama was sworn in).
“It’s the Supreme Court, Stupid!!!” Remember that slogan? A prominent issue was the thought that the next (or same) president would appoint one and possibly two Supreme Court justices. That thought was borne out when Rehnquist was replaced by Roberts and O’Connor by Alito. The replacement of Rehnquist by Roberts as Chief Justice has been considered an ideological wash, though it is still a bit early in Roberts’ jurisprudence to say whether he is more or less conservative than Rehnquist or more or less prone to respect precedent (viz., more or less “activist”). But clearly the replacement of Sandra Day O’Connor, a straight down the middle centrist, with a true conservative in Samuel Alito (together with Antonin Scalia, called without affection “Scalito”) is a difference-maker and one that will last for quite a while, because the next justices to be replaced will be older liberals. Most of the focus of the shift to the right on the Court was on abortion, but we may be about to see a major ruling occur soon on campaign finance reform. Three of the Justices (Scalia, Thomas, Kennedy) are on record as saying they would be willing to reverse a law dating back over a hundred years preventing corporations from donating to political campaigns. The two who will apparently decide whether to overrule the established law will be the two new appointees. Most consider that Alito has made his mind up already, but some wonder whether Roberts, who prefers to rule narrowly, will be willing to sign a sweeping opinion.
I personally think it would be a poor result to allow corporations to donate to campaigns. We are a nation of people, not corporations. Corporations can’t vote and are driven by the single-minded concern of profit for their shareholders. Let’s leave it to human beings to make laws and consider notions of fairness, rights, and more communal concerns like, say, defense and the environment. Don’t corporations already have enough power?
In Conclusion
I was actually going to talk a little bit more about the protestors and seek to deconstruct the virulent anti-Obama movement, but I think that is a bit of a long conversation. It combines parts of a general upset about the state of the economy and unemployment, desperation in one’s own personal life, touches on racism in some cases, and in general is one of those open-ended discursive debates that merits a full discussion in a different entry. If I feel the urge.
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