Take a look at the back of your phone book. Chances are there is an advertisement from an attorney who would like you to consider whether you may be a victim of medical malpractice. If you think maybe you have been, you can call for a free consultation.
Have you recently received medical care? Was the outcome less than ideal? Maybe, just maybe, if something had been done differently, the outcome would have been better. And maybe a jury could be convinced of that and award you a sizable sum of money - of which the attorney would take perhaps 40% plus expenses.
As you have surely noticed, tort reform has been a hot topic for many years. A "tort" is a civil wrong, and an alleged tort is the basis for a civil liability lawsuit. There are many things wrong with our tort system, and enumerating them could fill this entire essay. One of them, perhaps the most fundamental, is the implicit assumption held by so many people that if something bad happens, it must be someone's fault, and that person (or entity) should be made to pay. So, if you slip and fall, that's an accident. But if you slip and fall on property owned by someone else, and that someone else has liability insurance, there ought to be a way to show that person was somehow at fault and should pay damages. Even if the accident was really no one's fault, you may well be able to collect some money because the insurance company finds it cheaper to give you money than to litigate.
When the alleged tort is a negligent act in the provision of health care by a doctor, that is called a medical malpractice claim. What doctors and lawyers are taught is that proof of medical malpractice requires (1) a duty on the part of the physician toward the patient (which exists when there is a doctor-patient relationship); (2) a breach of duty (meaning negligence in the provision of care); (3) damages (harm to the patient); and (4) causation (the negligent, or substandard, care caused the harm to the patient).
That's what it says in the textbooks. That's not how it works in real life. All that is necessary is to convince a jury that maybe, just maybe, if something had been done differently, the less-than-ideal outcome would have been somewhat better.
As you can imagine, when people get sick or hurt and seek medical care, it is quite common for outcomes to be less than ideal. If people sued every time this happened, and every case went to trial, our court system would have no capacity for any other kinds of cases. The entire court system would be overwhelmed with medical negligence claims and couldn't possibly handle them all.
The fact that this isn't the situation is testament that common sense is at least somewhat common, and most people realize that when bad things happen it isn't always someone's fault.
But claims of medical negligence are common, and people sue. The attorneys representing the plaintiffs believe this is good. First I will tell you why they think that, and then I will tell you why they are wrong.
Lawyers have a different way of looking at the world from most of the rest of us. (I don't have any studies to prove this. I am simply expressing an opinion I have formed from many years of observation.) My perspective on human nature, which I believe is shared by most people, is that people are basically good, and we are raised with ethical and moral values that guide us toward doing the right thing. And the values with which we were raised serve as guideposts that we strive to follow in everything we do as we go through life. Certainly we make mistakes from time to time, but we try to live up to the principles we've been taught, whether they are grounded in religion, canons of ethics, secular humanism, or any other system for modeling human behavior.
Lawyers, on the other hand, believe that these systems are all abysmal failures, and that people do the right thing, and refrain from doing the wrong thing, primarily (or exclusively) because of a fear of legal consequences. We behave properly, and refrain from both criminal and civil wrongs, only because we fear being charged with crimes, tried and incarcerated, or sued and impoverished if we don't have adequate liability insurance coverage.
With this perspective on our society, it is easy to see why they believe that the right to sue is one of our most important legal rights, and anything that fetters that right in any way (such as a limit on how much money a jury can award for pain and suffering, also called "non-economic damages") is unacceptable.
Why are they wrong? Why is the proliferation of medical negligence claims not a good thing?
I'll start with something you've heard about - and about which I've written in this blog before: defensive medicine. This means doctors ordering tests they think are not really necessary but which will help, in the event of a bad outcome and a medical negligence claim, to show that they were being diligent and thorough. In other words, because any time a patient has a serious or complicated problem, we realize we might be sued if, despite our best efforts, things don't go well, and so we are preemptively building a case for the defense. This is an expensive way to practice medicine. How expensive is an open question, and certainly a matter of controversy, as I've described in earlier essays.
The second reason, and one which I think is the most important, is that our medical tort system doesn't do what it's supposed to do. The system should accurately identify patients who have been harmed by avoidable medical error, fairly evaluate the economic damages, and compensate the patients accordingly. Substantial research shows this is not happening. Many people get money in the absence of real damages (!), or get an amount of money in no way commensurate with damages. Simultaneously, many patients deserving of compensation don't get it. And many people who would be compensated if we had in place a system that worked properly never realize they were harmed by avoidable medical error and never seek compensation. Oh, and by the way, a very large share of the money that is paid out by insurance companies goes not to patients but to lawyers.
The third reason is that our present system poisons the doctor-patient relationship. Doctors see every encounter with every patient as a lawsuit waiting to happen. I could write a very lengthy essay on the pernicious ways in which this damages the very human interaction that takes place between patient and physician. Suffice it to say that it is evil.
Yes, evil. I used that word in the title, and again here, because it is provocative. Like Ronald Reagan's phrase "evil empire" or GW Bush's "axis of evil." It makes people of opposing viewpoint bristle. Attorneys who represent medical malpractice plaintiffs will bristle at the use of the word to describe their phone book advertising. That's OK with me. Because I think most everybody else looks at the world differently and will understand what I mean.
Friday, April 20, 2012
Saturday, April 7, 2012
Stand Your Ground
A young man was shot to death in Sanford, Florida (north of Orlando) in late February. The incident involved a man who was participating in a neighborhood watch program and had a permit to carry a gun. Diverse versions of what happened that day have been reported by the news media, with the shooter claiming self-defense, while those who see his actions as criminal note that the decedent was unarmed.
This has focused attention on a provision of Florida law known as "stand your ground." Many critics appear to be blaming the law for creating a Wild West mentality in the Sunshine State. But it seems a stretch to suggest that such laws encourage vigilantism or cause people to feel justified in shooting each other at the slightest provocation.
An understanding of the meaning of the phrase "stand your ground" in this context requires an awareness of the variety of legal treatments of self defense that may be found in different jurisdictions.
A series of laws enacted in England - including the Firearms Act (1920); the Prevention of Crime Act (1953); an omnibus revision of criminal law (1967); and a sweeping ban on handguns (1998) - has created a very different legal climate for self defense in Britain from what exists in the United States. In England, just about any implement may be judged an "offensive weapon" when used to injure another person; its possession will then be retrospectively treated as a crime. (In fact, police may stop and search a person and charge him with a crime for possession of an "offensive weapon" that has never been used.) When a person uses force in self defense, that use of force will be judged in retrospect. The standard is not whether a reasonable person placed in a situation would be fearful of serious harm from an assailant, but rather whether the fear turned out, when all was said and done, to have been warranted. Many observers have concluded that the right of self defense effectively no longer exists in England. Well publicized cases seem to substantiate this view. Published "Guidance" from the Crown Prosecution Service suggests that a decision to prosecute based on assessment of reasonableness of force will be strongly influenced by the consequences of the use of force and the use of a dangerous weapon. So you can be fairly certain that self defense involving a knife or firearm and serious harm to the assailant against whom you are acting in self defense will turn you into a criminal defendant.
Many Britons are quite unhappy with this situation, and Conservative Prime Minister David Cameron is on record as saying the right of self defense, long a feature of English Common Law, should be restored to its rightful place in statute.
The situation in the U.S. is a veritable crazy quilt. There are jurisdictions where one cannot lawfully possess a handgun in one's home, and many more where it is difficult or impossible to obtain a permit to carry a gun lawfully in public. On the other hand, in many other locales, a permit to carry must be issued to any citizen with a clean record. In two states (Vermont and Alaska) one does not even need a permit.
In some jurisdictions there is a duty to retreat. If you are threatened by a criminal assailant in your own home, you must try to escape. You may act in self defense only when you have reasonably concluded that death or grievous bodily injury is imminent and that there is no possibility of escape. Other jurisdictions have established what is commonly called the Castle Doctrine, meaning you have no legal duty to retreat from your own home and may use force (including lethal force) to prevent serious injury to yourself or your family.
But what if you have a permit to carry a handgun in public places, and you are attacked in a public place? A law such as Florida's says you may "stand your ground" - meaning you may use force in self defense if you are any place where you have a right to be.
As you can surely see, it is important to know what statute and case law say about your rights in the jurisdiction where you live and work and go about your daily business. The same is true if you routinely travel to other states. Does the state in which you are traveling recognize carry permits issued by your state? What are its legal requirements for acting in self defense?
What about defense of property? Some states authorize the use of force, even lethal force, in defense of property under some circumstances. So you can lawfully shoot a burglar in your home. Whether it is ethical to use lethal force in defense of property is another question entirely, and surely a more important one. I can imagine using lethal force in defense of property only under extreme circumstances, such as stopping an arsonist from burning down my house (because that could pose a danger to human life, including neighbors and firefighters).
Notice that none of this, even a "stand your ground" law, says you can go out looking for trouble. If you go out and pick a fistfight, find yourself on the losing end, even to the point of being in danger of serious injury, and then react by using a gun to bring the conflict to an end in your favor, you will have a very difficult case to make.
Science fiction author Robert Heinlein once said, "An armed society is a polite society." By this he meant that when people go about in public carrying guns, they tend to be more circumspect in their behavior, knowing that the presence of a gun raises the ceiling on escalation of any interpersonal conflict. They therefore feel obligated to avoid conflict and to de-escalate conflict when it occurs.
Unfortunately, many people who obtain permits to carry guns do not take the time and make the effort to familiarize themselves with the legal and ethical principles governing the use of lethal force in self defense. I have many times recommended the excellent book by Massad Ayoob titled In the Gravest Extreme: the Role of the Firearm in Personal Protection. I believe it should be required reading.
None of this answers the question of whether people should be able to use lethal force in self defense or under what circumstances. Should the Castle Doctrine be the law? What about "stand your ground" laws? These are questions on which we all have our own opinions. The record suggests that persons who own and carry lethal weapons lawfully rarely use them to commit crimes. Ardent advocates on either side of the gun rights issue cite statistics, often saying things that directly contradict each other.
I would encourage those who are interested to do a bit of serious research into the validity of claims and counter-claims about whether the private ownership of firearms by law-abiding citizens is good or bad for our society. I could try to convince you that my own views on this question are correct, but that would take a very long essay. If you know me, ask my opinion when you have plenty of time. If you approach the subject in a spirit of intellectual inquiry, I'll buy the beer.
This has focused attention on a provision of Florida law known as "stand your ground." Many critics appear to be blaming the law for creating a Wild West mentality in the Sunshine State. But it seems a stretch to suggest that such laws encourage vigilantism or cause people to feel justified in shooting each other at the slightest provocation.
An understanding of the meaning of the phrase "stand your ground" in this context requires an awareness of the variety of legal treatments of self defense that may be found in different jurisdictions.
A series of laws enacted in England - including the Firearms Act (1920); the Prevention of Crime Act (1953); an omnibus revision of criminal law (1967); and a sweeping ban on handguns (1998) - has created a very different legal climate for self defense in Britain from what exists in the United States. In England, just about any implement may be judged an "offensive weapon" when used to injure another person; its possession will then be retrospectively treated as a crime. (In fact, police may stop and search a person and charge him with a crime for possession of an "offensive weapon" that has never been used.) When a person uses force in self defense, that use of force will be judged in retrospect. The standard is not whether a reasonable person placed in a situation would be fearful of serious harm from an assailant, but rather whether the fear turned out, when all was said and done, to have been warranted. Many observers have concluded that the right of self defense effectively no longer exists in England. Well publicized cases seem to substantiate this view. Published "Guidance" from the Crown Prosecution Service suggests that a decision to prosecute based on assessment of reasonableness of force will be strongly influenced by the consequences of the use of force and the use of a dangerous weapon. So you can be fairly certain that self defense involving a knife or firearm and serious harm to the assailant against whom you are acting in self defense will turn you into a criminal defendant.
Many Britons are quite unhappy with this situation, and Conservative Prime Minister David Cameron is on record as saying the right of self defense, long a feature of English Common Law, should be restored to its rightful place in statute.
The situation in the U.S. is a veritable crazy quilt. There are jurisdictions where one cannot lawfully possess a handgun in one's home, and many more where it is difficult or impossible to obtain a permit to carry a gun lawfully in public. On the other hand, in many other locales, a permit to carry must be issued to any citizen with a clean record. In two states (Vermont and Alaska) one does not even need a permit.
In some jurisdictions there is a duty to retreat. If you are threatened by a criminal assailant in your own home, you must try to escape. You may act in self defense only when you have reasonably concluded that death or grievous bodily injury is imminent and that there is no possibility of escape. Other jurisdictions have established what is commonly called the Castle Doctrine, meaning you have no legal duty to retreat from your own home and may use force (including lethal force) to prevent serious injury to yourself or your family.
But what if you have a permit to carry a handgun in public places, and you are attacked in a public place? A law such as Florida's says you may "stand your ground" - meaning you may use force in self defense if you are any place where you have a right to be.
As you can surely see, it is important to know what statute and case law say about your rights in the jurisdiction where you live and work and go about your daily business. The same is true if you routinely travel to other states. Does the state in which you are traveling recognize carry permits issued by your state? What are its legal requirements for acting in self defense?
What about defense of property? Some states authorize the use of force, even lethal force, in defense of property under some circumstances. So you can lawfully shoot a burglar in your home. Whether it is ethical to use lethal force in defense of property is another question entirely, and surely a more important one. I can imagine using lethal force in defense of property only under extreme circumstances, such as stopping an arsonist from burning down my house (because that could pose a danger to human life, including neighbors and firefighters).
Notice that none of this, even a "stand your ground" law, says you can go out looking for trouble. If you go out and pick a fistfight, find yourself on the losing end, even to the point of being in danger of serious injury, and then react by using a gun to bring the conflict to an end in your favor, you will have a very difficult case to make.
Science fiction author Robert Heinlein once said, "An armed society is a polite society." By this he meant that when people go about in public carrying guns, they tend to be more circumspect in their behavior, knowing that the presence of a gun raises the ceiling on escalation of any interpersonal conflict. They therefore feel obligated to avoid conflict and to de-escalate conflict when it occurs.
Unfortunately, many people who obtain permits to carry guns do not take the time and make the effort to familiarize themselves with the legal and ethical principles governing the use of lethal force in self defense. I have many times recommended the excellent book by Massad Ayoob titled In the Gravest Extreme: the Role of the Firearm in Personal Protection. I believe it should be required reading.
None of this answers the question of whether people should be able to use lethal force in self defense or under what circumstances. Should the Castle Doctrine be the law? What about "stand your ground" laws? These are questions on which we all have our own opinions. The record suggests that persons who own and carry lethal weapons lawfully rarely use them to commit crimes. Ardent advocates on either side of the gun rights issue cite statistics, often saying things that directly contradict each other.
I would encourage those who are interested to do a bit of serious research into the validity of claims and counter-claims about whether the private ownership of firearms by law-abiding citizens is good or bad for our society. I could try to convince you that my own views on this question are correct, but that would take a very long essay. If you know me, ask my opinion when you have plenty of time. If you approach the subject in a spirit of intellectual inquiry, I'll buy the beer.
Monday, April 2, 2012
The Federal Mandate: Eat Your Broccoli
Unless you were hiding under a rock last week - or assiduously avoiding coverage of national news - you know the U.S. Supreme Court was hearing oral arguments on the constitutionality of certain aspects of the Patient Protection and Affordable Care Act, also known as Obamacare. By the way, for those who have expressed disapproval of the use of the coined word "Obamacare" as derisive, disparaging, or pejorative, lighten up. President Obama himself has approved of its use.
While the high court heard arguments on whether these issues were even appropriately being considered (because the law hasn't taken effect yet) and whether the expansion of state-administered Medicaid programs required by the law violates states' rights, the central question that has generated the most interest is whether the individual mandate is constitutional.
Does, or does not, the U.S. Constitution confer upon Congress powers sufficiently broad to allow the national government to require all of us to buy health insurance? While there are many intellectually interesting arguments on various sides of this question, let me begin by telling you my opinion. The answer is no. Congress can confiscate my money through direct taxation and use it to pay for my health care through a federal program. Congress cannot, however, force me to buy health insurance though any powers accorded to it in the Constitution. I will go on to say that what they are allowed to do is much simpler than what they aren't allowed to do, and it would achieve the goal of universal coverage, while the individual mandate as written in PPACA will not.
I believe we need universal coverage. I also believe we don't have it because most people who have health insurance in our current system are satisfied with what they have and don't want anybody messing with it. Perhaps if they understood how easy it is to lose that coverage in an economy in which job security is a fantasy, they would favor doing whatever works to achieve universal coverage. Effective political leadership, the kind that can explain things to John Q. Citizen and mold public opinion, is what we need - and haven't had.
Now let's get back to the question. If I refuse to buy health insurance, does that affect interstate commerce? Sure. Insurance is a mechanism for pooling risk. If lots of folks who are young and healthy and use very little health care refuse to participate in the pool, the cost of participating goes up for everyone else. And when they do get sick or hurt and require health care for which they are not insured and cannot pay, the cost shifting that results from that also drives up costs for everyone else. Inasmuch as the health care market is regional, or even national, my decision has an effect on interstate commerce. But the next question is whether Congress can use its power to regulate interstate commerce to force me to engage in that commerce when I have chosen not to.
When you start looking for analogies, you run into trouble. Can we find other examples of Congress forcing people to engage in interstate commerce? Does it make any sense that Congress should force people to engage in interstate commerce for the purpose of creating commerce that it can then regulate?
Justice Scalia used the food analogy that some have offered. You can go hungry for a while, but eventually you have to eat. While it is true, they say, that a person can stay out of the health care market for a time - perhaps even a long time - it is a virtual certainty that eventually that person will require health care and will then be engaging in this commerce about which we are arguing. That inevitability allows Congress to regulate the individual's behavior in anticipation.
Scalia noted that Congress isn't just regulating the commercial transaction between the provider and consumer of health care or between the purveyor and the purchaser of health insurance. No, Congress is telling the purveyor what kind of health insurance it must offer and the purchaser what kind he must buy. So, Scalia analogizes, Congress says not only must you eat, but you must eat broccoli. Others have expanded on this argument. Not just broccoli, but a broadly healthful diet. And join a health club. Exercise at least 5 days out of 7, for at least 30 minutes per day. OK, that last part may be way beyond regulating interstate commerce, but mandating that we buy health club memberships isn't, because there are several nationally franchised companies. Just tell me this: does the fact that I have an exercise room in my house with equipment for aerobics and weight training exempt me from this requirement? (And yes, if you're wondering, I actually work out almost every day.)
Time for a deep breath. How important is the individual mandate? Well, if you want to preserve the private health insurance market, and have any hope of controlling costs, it's very important. And don't forget that really popular provision of Obamacare, the part that tells insurance companies they cannot refuse to cover pre-existing conditions. If you don't make me buy health insurance, why shouldn't I just wait to buy it until I need it - when I get sick or hurt? Because then my condition will be labeled "pre-existing" and won't be covered. After all, the reasoning goes, what I'm trying to do is like buying collision insurance after I crash my car and expecting my claim for damages to be paid.
But if the individual mandate is unconstitutional, which I believe it is ... now what?
We could come up with another, even more incredibly complex piece of legislation to cover everyone. Or we could do the simple thing and create a single payer system (like Medicare for everyone) and hope that giving the government as much control over the rest of the health care system as it has over Medicare doesn't get us into trouble. (Remember P.J. O'Rourke's clever observation: "Giving money and power to government is like giving whiskey and car keys to teenage boys.")
We need universal coverage. Every single day in my job as an emergency physician I see many regrettable consequences of people's lack of health insurance. So take my word for it. Whatever approach we pick to achieve the goal of universal coverage, we have to pick something. What we're doing now isn't working. You pick. [By "you," I mean the American people.] Once you pick something, feel free to ask me whether it will work. I've seen enough things that didn't to be an expert on what will.
While the high court heard arguments on whether these issues were even appropriately being considered (because the law hasn't taken effect yet) and whether the expansion of state-administered Medicaid programs required by the law violates states' rights, the central question that has generated the most interest is whether the individual mandate is constitutional.
Does, or does not, the U.S. Constitution confer upon Congress powers sufficiently broad to allow the national government to require all of us to buy health insurance? While there are many intellectually interesting arguments on various sides of this question, let me begin by telling you my opinion. The answer is no. Congress can confiscate my money through direct taxation and use it to pay for my health care through a federal program. Congress cannot, however, force me to buy health insurance though any powers accorded to it in the Constitution. I will go on to say that what they are allowed to do is much simpler than what they aren't allowed to do, and it would achieve the goal of universal coverage, while the individual mandate as written in PPACA will not.
I believe we need universal coverage. I also believe we don't have it because most people who have health insurance in our current system are satisfied with what they have and don't want anybody messing with it. Perhaps if they understood how easy it is to lose that coverage in an economy in which job security is a fantasy, they would favor doing whatever works to achieve universal coverage. Effective political leadership, the kind that can explain things to John Q. Citizen and mold public opinion, is what we need - and haven't had.
Now let's get back to the question. If I refuse to buy health insurance, does that affect interstate commerce? Sure. Insurance is a mechanism for pooling risk. If lots of folks who are young and healthy and use very little health care refuse to participate in the pool, the cost of participating goes up for everyone else. And when they do get sick or hurt and require health care for which they are not insured and cannot pay, the cost shifting that results from that also drives up costs for everyone else. Inasmuch as the health care market is regional, or even national, my decision has an effect on interstate commerce. But the next question is whether Congress can use its power to regulate interstate commerce to force me to engage in that commerce when I have chosen not to.
When you start looking for analogies, you run into trouble. Can we find other examples of Congress forcing people to engage in interstate commerce? Does it make any sense that Congress should force people to engage in interstate commerce for the purpose of creating commerce that it can then regulate?
Justice Scalia used the food analogy that some have offered. You can go hungry for a while, but eventually you have to eat. While it is true, they say, that a person can stay out of the health care market for a time - perhaps even a long time - it is a virtual certainty that eventually that person will require health care and will then be engaging in this commerce about which we are arguing. That inevitability allows Congress to regulate the individual's behavior in anticipation.
Scalia noted that Congress isn't just regulating the commercial transaction between the provider and consumer of health care or between the purveyor and the purchaser of health insurance. No, Congress is telling the purveyor what kind of health insurance it must offer and the purchaser what kind he must buy. So, Scalia analogizes, Congress says not only must you eat, but you must eat broccoli. Others have expanded on this argument. Not just broccoli, but a broadly healthful diet. And join a health club. Exercise at least 5 days out of 7, for at least 30 minutes per day. OK, that last part may be way beyond regulating interstate commerce, but mandating that we buy health club memberships isn't, because there are several nationally franchised companies. Just tell me this: does the fact that I have an exercise room in my house with equipment for aerobics and weight training exempt me from this requirement? (And yes, if you're wondering, I actually work out almost every day.)
Time for a deep breath. How important is the individual mandate? Well, if you want to preserve the private health insurance market, and have any hope of controlling costs, it's very important. And don't forget that really popular provision of Obamacare, the part that tells insurance companies they cannot refuse to cover pre-existing conditions. If you don't make me buy health insurance, why shouldn't I just wait to buy it until I need it - when I get sick or hurt? Because then my condition will be labeled "pre-existing" and won't be covered. After all, the reasoning goes, what I'm trying to do is like buying collision insurance after I crash my car and expecting my claim for damages to be paid.
But if the individual mandate is unconstitutional, which I believe it is ... now what?
We could come up with another, even more incredibly complex piece of legislation to cover everyone. Or we could do the simple thing and create a single payer system (like Medicare for everyone) and hope that giving the government as much control over the rest of the health care system as it has over Medicare doesn't get us into trouble. (Remember P.J. O'Rourke's clever observation: "Giving money and power to government is like giving whiskey and car keys to teenage boys.")
We need universal coverage. Every single day in my job as an emergency physician I see many regrettable consequences of people's lack of health insurance. So take my word for it. Whatever approach we pick to achieve the goal of universal coverage, we have to pick something. What we're doing now isn't working. You pick. [By "you," I mean the American people.] Once you pick something, feel free to ask me whether it will work. I've seen enough things that didn't to be an expert on what will.
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