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.
Tuesday, March 27, 2012
Gun Control and the Slippery Slope
Every time there is a shooting that makes the national news because the number of victims was more than one or two, and especially if it was quite a bit more than that, we are sure to hear proponents of stringent gun control measures calling for a ban on high-capacity magazines. The idea is that being able to fire numerous rounds without having to reload the gun makes a deranged killer even more deadly. And so, if there is a limit of ten rounds per magazine, the killer will be forced to stop and reload more often than if the magazine holds 15 or 17 rounds.
Such a proposal will invariably be labeled a "common-sense" gun control measure. Anyone who opposes it will be accused of somehow being in league with psychopaths and criminals - who, after all, are the only ones who "need" large-capacity magazines, for the purpose of killing as many victims as possible in the shortest possible time. Oh, and the police need them, too, so they won't be "out-gunned" by the lawless.
Twenty-five years ago, when talk of banning "assault weapons" was approaching a fever pitch, a colleague who was an avid pistol shooter told me, in a conversation about gun control, that no one "needs" a semi-automatic rifle.
[For those unfamiliar with the mechanics of firearms, a semi-automatic rifle or pistol fires one bullet with each squeeze of the trigger, and the next round is "automatically" fed from a magazine into the chamber. This is different from a "machine gun," which will fire bullets in rapid succession if the trigger is squeezed and held. The typical machine gun is capable of "selective fire." Squeeze and release the trigger: one round at a time; squeeze and hold: rapid fire of bullet after bullet until the trigger is released. Some weapons offer the option of three-round bursts. In military parlance, an "assault weapon" is one that can be used to lay down a field of fire, which necessitates the mode known as "full auto." So only a machine gun, or selective fire rifle, meets the definition of an assault weapon. Many people use "assault weapon" to describe semi-automatic rifles and pistols, sometimes out of ignorance, sometimes to make them sound as though their only raison d'être is wanton destruction of human life.]
First, let us take note of the fact that owning a selective fire rifle (lawfully) requires a special license that is very expensive, and an awful lot of paperwork. And the firearms themselves are quite pricey. They are very rarely found on the street. Then we can move on to examine the difference between ten- and thirty-round magazines for use in a semi-automatic rifle or ten- and fifteen-round magazines for use in a semi-automatic pistol. The difference is simple. One must reload once or twice, versus not, in order to fire 30 rounds. How much extra time does that take? And does the pause to reload give a person who might try to stop the shooter time to intervene?
With a little practice, the time to reload is extremely brief: perhaps a second or so. And if you think you can tell when the shooter is pressing the release button to eject the magazine, with the right hand, while reaching for a fresh magazine with the left hand, thus identifying the moment when a flying tackle will put a stop to the carnage, consider this: the way most guns are designed, there is quite possibly still a round in the chamber, and the shooter can fire it at you. Bad plan.
So let's move on a little further. How about banning semi-automatic pistols and rifles (except for use by law enforcement, which means they are still being manufactured, and criminals will still get hold of them), and restricting people (the law-abiding, anyway) to revolvers? They typically hold six cartridges (bullet plus gun powder plus a "primer" to ignite the powder in a metallic case) and take much longer to reload than a semi-automatic pistol. Hmmm. Well, they do take longer to reload, but a lot longer? Not necessarily. There is a device called a speed loader that makes the process a lot faster, especially with practice. Ask any police officer who carried a revolver in the days before most agencies switched to semi-auto pistols.
Maybe we should restrict civilians to single-shot firearms that must be reloaded after each round is fired. After all, a responsible and skilled hunter believes in the "one-shot kill." Why do you need a quick follow-up shot? Ask a good hunter whose first shot didn't put the animal down right away about the importance of a follow-up shot. And then there is the matter of using guns for self-defense, but that is another argument altogether, especially when you're talking to people who think a law-abiding citizen who buys a gun for self-defense is much more likely to shoot his spouse in anger, or by mistake, than to use the gun in defense of home and family.
By now you should be able to see that the title revealed where this was going. And that is the problem with the societal debate on gun control. Every time the proponents of gun control measures put forth what they call a "common-sense" measure, the advocates for gun rights immediately see what will follow it, and what will come after that, and so on.
For much of the 20th century, a citizen with a clean record willing to subject himself to an extensive background check, pay a hefty fee, and do lots of paperwork could get a license to own a selective-fire rifle. Then in 1986 it became illegal for a person with such a license to purchase such a weapon manufactured after that year. The supply of eligible firearms thus severely limited, their prices have since skyrocketed (unless you buy them illegally, or re-engineer a semi-auto rifle to fire in full-auto mode, which is both illegal and much more technically difficult than news reports would have you believe).
So it's extremely difficult and expensive to purchase a selective-fire rifle. Beginning in 1994, and for a period of ten years, certain semi-automatic rifles and pistols, and high-capacity magazines, were illegal; that ban expired, but there are frequent calls for its reinstatement. Many proponents of gun control frequently argue for banning all semi-automatic firearms, and gun-rights advocates are quite certain that a complete ban on private ownership of firearms will eventually follow.
This, you see, is the slippery slope.
We've seen it with waiting periods. How about a background check? Just look at the records to make sure the prospective buyer is not a convicted felon. That can be done instantly with modern computer systems. But why not a three-day waiting period anyway, a "cooling-off" period to help avoid tragedy for the temporarily unhinged suicidal or homicidal person? If three days is good, wouldn't seven be even better? How about 30 days? Yes, those exist in some locales.
There may be some "common-sense" gun control measures that few rational gun owners would find truly objectionable. Except for the slippery slope. As long as law-abiding gun owners who believe in their right to keep and bear arms, as a natural right of self-defense protected by the Second Amendment to the U.S. Constitution, believe that every gun control measure enacted will be followed by more and more until their rights are a memory ... as long as that is the case, which will be as long as gun control proponents give frequent and ample evidence that this is their agenda ... we will never achieve anything remotely approaching societal consensus on just what "common sense" would dictate.
Update: July 21, 2012
In the wake of a massacre in a movie theatre in the early hours of 7/20/12 in Aurora, Colorado, New York City Mayor Michael Bloomberg has renewed calls for stricter federal gun control. New York has very strict gun laws, but Mayor Bloomberg believes the reason that the rate of violent crime is rising in NYC while it is falling for the nation as a whole is that the influx of guns from outside the state cannot be controlled without new federal laws. Most (if not all) of that influx is the result of illegal commerce in guns, so exactly how new laws would solve the problem is unclear.
Political pundits are saying Congress and the Obama Administration will go nowhere near this issue in a presidential election year. Republicans are consistently pro-gun-rights, and Democrats fear the National Rifle Association. Many believe Al Gore would have won Tennessee and West Virginia - and the White House, without Florida - in 2000 if not for his strident pro-gun-control policy positions.
Thousands of Americans have become instant experts on the complex issue of gun control and are expressing their views on social networking sites. It is remarkable how many people are sure they have the solution to one of the most consistently vexing problems of modern American society.
In 1968 Bobby Kennedy and Martin Luther King, Jr. were assassinated. The Gun Control Act of 1968 followed. More than four decades later we seem no closer to real answers.
For those interested in a critical examination of the issues and the full spectrum of perspectives, I recommend The Gun Control Debate: You Decide. This is a collection of articles assembled in a cohesive volume by editor Lee Nisbet, Ph.D. in 1991 and updated for the 2001 second edition.
Such a proposal will invariably be labeled a "common-sense" gun control measure. Anyone who opposes it will be accused of somehow being in league with psychopaths and criminals - who, after all, are the only ones who "need" large-capacity magazines, for the purpose of killing as many victims as possible in the shortest possible time. Oh, and the police need them, too, so they won't be "out-gunned" by the lawless.
Twenty-five years ago, when talk of banning "assault weapons" was approaching a fever pitch, a colleague who was an avid pistol shooter told me, in a conversation about gun control, that no one "needs" a semi-automatic rifle.
[For those unfamiliar with the mechanics of firearms, a semi-automatic rifle or pistol fires one bullet with each squeeze of the trigger, and the next round is "automatically" fed from a magazine into the chamber. This is different from a "machine gun," which will fire bullets in rapid succession if the trigger is squeezed and held. The typical machine gun is capable of "selective fire." Squeeze and release the trigger: one round at a time; squeeze and hold: rapid fire of bullet after bullet until the trigger is released. Some weapons offer the option of three-round bursts. In military parlance, an "assault weapon" is one that can be used to lay down a field of fire, which necessitates the mode known as "full auto." So only a machine gun, or selective fire rifle, meets the definition of an assault weapon. Many people use "assault weapon" to describe semi-automatic rifles and pistols, sometimes out of ignorance, sometimes to make them sound as though their only raison d'être is wanton destruction of human life.]
First, let us take note of the fact that owning a selective fire rifle (lawfully) requires a special license that is very expensive, and an awful lot of paperwork. And the firearms themselves are quite pricey. They are very rarely found on the street. Then we can move on to examine the difference between ten- and thirty-round magazines for use in a semi-automatic rifle or ten- and fifteen-round magazines for use in a semi-automatic pistol. The difference is simple. One must reload once or twice, versus not, in order to fire 30 rounds. How much extra time does that take? And does the pause to reload give a person who might try to stop the shooter time to intervene?
With a little practice, the time to reload is extremely brief: perhaps a second or so. And if you think you can tell when the shooter is pressing the release button to eject the magazine, with the right hand, while reaching for a fresh magazine with the left hand, thus identifying the moment when a flying tackle will put a stop to the carnage, consider this: the way most guns are designed, there is quite possibly still a round in the chamber, and the shooter can fire it at you. Bad plan.
So let's move on a little further. How about banning semi-automatic pistols and rifles (except for use by law enforcement, which means they are still being manufactured, and criminals will still get hold of them), and restricting people (the law-abiding, anyway) to revolvers? They typically hold six cartridges (bullet plus gun powder plus a "primer" to ignite the powder in a metallic case) and take much longer to reload than a semi-automatic pistol. Hmmm. Well, they do take longer to reload, but a lot longer? Not necessarily. There is a device called a speed loader that makes the process a lot faster, especially with practice. Ask any police officer who carried a revolver in the days before most agencies switched to semi-auto pistols.
Maybe we should restrict civilians to single-shot firearms that must be reloaded after each round is fired. After all, a responsible and skilled hunter believes in the "one-shot kill." Why do you need a quick follow-up shot? Ask a good hunter whose first shot didn't put the animal down right away about the importance of a follow-up shot. And then there is the matter of using guns for self-defense, but that is another argument altogether, especially when you're talking to people who think a law-abiding citizen who buys a gun for self-defense is much more likely to shoot his spouse in anger, or by mistake, than to use the gun in defense of home and family.
By now you should be able to see that the title revealed where this was going. And that is the problem with the societal debate on gun control. Every time the proponents of gun control measures put forth what they call a "common-sense" measure, the advocates for gun rights immediately see what will follow it, and what will come after that, and so on.
For much of the 20th century, a citizen with a clean record willing to subject himself to an extensive background check, pay a hefty fee, and do lots of paperwork could get a license to own a selective-fire rifle. Then in 1986 it became illegal for a person with such a license to purchase such a weapon manufactured after that year. The supply of eligible firearms thus severely limited, their prices have since skyrocketed (unless you buy them illegally, or re-engineer a semi-auto rifle to fire in full-auto mode, which is both illegal and much more technically difficult than news reports would have you believe).
So it's extremely difficult and expensive to purchase a selective-fire rifle. Beginning in 1994, and for a period of ten years, certain semi-automatic rifles and pistols, and high-capacity magazines, were illegal; that ban expired, but there are frequent calls for its reinstatement. Many proponents of gun control frequently argue for banning all semi-automatic firearms, and gun-rights advocates are quite certain that a complete ban on private ownership of firearms will eventually follow.
This, you see, is the slippery slope.
We've seen it with waiting periods. How about a background check? Just look at the records to make sure the prospective buyer is not a convicted felon. That can be done instantly with modern computer systems. But why not a three-day waiting period anyway, a "cooling-off" period to help avoid tragedy for the temporarily unhinged suicidal or homicidal person? If three days is good, wouldn't seven be even better? How about 30 days? Yes, those exist in some locales.
There may be some "common-sense" gun control measures that few rational gun owners would find truly objectionable. Except for the slippery slope. As long as law-abiding gun owners who believe in their right to keep and bear arms, as a natural right of self-defense protected by the Second Amendment to the U.S. Constitution, believe that every gun control measure enacted will be followed by more and more until their rights are a memory ... as long as that is the case, which will be as long as gun control proponents give frequent and ample evidence that this is their agenda ... we will never achieve anything remotely approaching societal consensus on just what "common sense" would dictate.
Update: July 21, 2012
In the wake of a massacre in a movie theatre in the early hours of 7/20/12 in Aurora, Colorado, New York City Mayor Michael Bloomberg has renewed calls for stricter federal gun control. New York has very strict gun laws, but Mayor Bloomberg believes the reason that the rate of violent crime is rising in NYC while it is falling for the nation as a whole is that the influx of guns from outside the state cannot be controlled without new federal laws. Most (if not all) of that influx is the result of illegal commerce in guns, so exactly how new laws would solve the problem is unclear.
Political pundits are saying Congress and the Obama Administration will go nowhere near this issue in a presidential election year. Republicans are consistently pro-gun-rights, and Democrats fear the National Rifle Association. Many believe Al Gore would have won Tennessee and West Virginia - and the White House, without Florida - in 2000 if not for his strident pro-gun-control policy positions.
Thousands of Americans have become instant experts on the complex issue of gun control and are expressing their views on social networking sites. It is remarkable how many people are sure they have the solution to one of the most consistently vexing problems of modern American society.
In 1968 Bobby Kennedy and Martin Luther King, Jr. were assassinated. The Gun Control Act of 1968 followed. More than four decades later we seem no closer to real answers.
For those interested in a critical examination of the issues and the full spectrum of perspectives, I recommend The Gun Control Debate: You Decide. This is a collection of articles assembled in a cohesive volume by editor Lee Nisbet, Ph.D. in 1991 and updated for the 2001 second edition.
Sunday, March 25, 2012
Old Dog, New Tricks: Catching Up with Medical Technology
I spent last week learning the fundamentals of using ultrasound in the bedside evaluation of the patient in the emergency department. The use of this technology expands the three senses I routinely employ when I examine patients.
In the traditional physical examination the doctor looks at the patient, uses a stethoscope to listen to sounds made by the organs, and feels with his or her hands to discover anatomic abnormalities. Ultrasound has the most profound effect on the visual examination, as it permits the physician to look inside the body. No longer dependent on the reflection of visible light from the patient to the examiner's eye, the doctor can "shine" the ultrasound beam into the body from the surface and see (on a monitor) the images produced by the reflection.
When ultrasound is used to examine the heart and blood vessels, it is possible both to see and to hear blood flow. And this technology enables the physician to combine seeing and feeling in ways otherwise impossible. When I see a patient with pain in the upper abdomen on the right side, I may press where I think the gall bladder is to see if that hurts. With ultrasound, I can see the gall bladder when I'm pressing, so I not only know whether the gall bladder looks diseased, I can also tell directly whether it is tender to touch - important because that helps to confirm that it is the diseased gall bladder that is causing the patient's pain. Similarly, when I see a woman with pelvic pain, I can not only see that she has ovarian cysts (which are very common and usually asymptomatic) but can also tell whether they are tender to touch, and thus likely (or not) to be the source of her pain.
[For those curious about the other two senses, I'll just say there are many things the astute clinician can discern about patients by smell, but nowadays we don't really employ taste. I can only imagine how that would be regarded by a disciplinary review board.]
We now use ultrasound to examine the body quite literally from head to toe. Ultrasound can reveal important findings of injury to and disease of the eye, and it can be used to find fluid in the joint of a toe and facilitate withdrawing some of that fluid through a needle to send to the laboratory and confirm the diagnosis of gout. We may use it to help us see a large vein in the neck as we place an intravenous line there, or we may evaluate blood flow to the brain through the carotid arteries. We can also examine blood flow through the arteries and veins in the arms and legs. There are many things we can find out by employing ultrasound to evaluate organs in the chest, abdomen, and pelvis, from structure and function of the heart, to diseases of the liver and kidneys, to whether a pregnancy is in the uterus (where it belongs) or in one of the Fallopian tubes (where it may rupture and kill a young woman).
Perhaps the most exciting use of ultrasound is in the rapid detection, in an injured patient, of internal bleeding in the chest, abdomen, or pelvis. This can tell us right away that a patient must go directly from the emergency department's trauma bay to the operating room (do not pass go, do not collect $200) because of major bleeding. Rapid decision making is critical in such a situation, because minutes can, quite literally, mean the difference between life and death.
When I was in training in the mid-80s, there was no such thing as the use of bedside ultrasound in the ED. The first paper about the use of ultrasound in emergency medicine was published in 1988. The American College of Emergency Physicians (ACEP) offered its first course dedicated to the subject in 1990. The Society for Academic Emergency Medicine developed a model curriculum for training emergency physicians to use ultrasound and published it in 1994. ACEP's Ultrasound Section has done a great deal of extraordinary work, including the development of ACEP's emergency ultrasound guidelines, first published in 2001 and revised in 2008.
Many emergency departments, including most of the ones where I've practiced over the years, still do not have ultrasound capability, because the ED does not have an ultrasound machine or the doctors aren't trained to use one (or both). But last summer I joined the staff at an academic medical center, and not only must I know how to do this, but I must acquire mastery sufficient to teach the next generation. So I have just taken the first step on the path to that mastery.
The path is long. If you want to be a technologist ("ultrasonographer"), that takes two years. The training program is also two years for echocardiographers, those who use ultrasound strictly for imaging the heart. Of course physicians learning ultrasound have a big initial advantage, because we already know the anatomy and physiology of everything we want to examine. On the other hand, ultrasound is only a relatively small part of our practice, because we don't use it on everybody, and so that greatly lengthens the learning curve.
Forty hours of highly intensive instruction was a good start, though. If you have occasion to see me as a patient, expect me to try to come up with a reason to examine some part of you with ultrasound. But don't worry. It doesn't hurt, it has no known adverse effects, and because I'm learning, there will be no charge. And I might just find something important, or at least be able to tell you the bad thing we worried about is not there. After more than a quarter century in practice, I am doing something that will make me a better doctor. Yes, I am excited.
In the traditional physical examination the doctor looks at the patient, uses a stethoscope to listen to sounds made by the organs, and feels with his or her hands to discover anatomic abnormalities. Ultrasound has the most profound effect on the visual examination, as it permits the physician to look inside the body. No longer dependent on the reflection of visible light from the patient to the examiner's eye, the doctor can "shine" the ultrasound beam into the body from the surface and see (on a monitor) the images produced by the reflection.
When ultrasound is used to examine the heart and blood vessels, it is possible both to see and to hear blood flow. And this technology enables the physician to combine seeing and feeling in ways otherwise impossible. When I see a patient with pain in the upper abdomen on the right side, I may press where I think the gall bladder is to see if that hurts. With ultrasound, I can see the gall bladder when I'm pressing, so I not only know whether the gall bladder looks diseased, I can also tell directly whether it is tender to touch - important because that helps to confirm that it is the diseased gall bladder that is causing the patient's pain. Similarly, when I see a woman with pelvic pain, I can not only see that she has ovarian cysts (which are very common and usually asymptomatic) but can also tell whether they are tender to touch, and thus likely (or not) to be the source of her pain.
[For those curious about the other two senses, I'll just say there are many things the astute clinician can discern about patients by smell, but nowadays we don't really employ taste. I can only imagine how that would be regarded by a disciplinary review board.]
We now use ultrasound to examine the body quite literally from head to toe. Ultrasound can reveal important findings of injury to and disease of the eye, and it can be used to find fluid in the joint of a toe and facilitate withdrawing some of that fluid through a needle to send to the laboratory and confirm the diagnosis of gout. We may use it to help us see a large vein in the neck as we place an intravenous line there, or we may evaluate blood flow to the brain through the carotid arteries. We can also examine blood flow through the arteries and veins in the arms and legs. There are many things we can find out by employing ultrasound to evaluate organs in the chest, abdomen, and pelvis, from structure and function of the heart, to diseases of the liver and kidneys, to whether a pregnancy is in the uterus (where it belongs) or in one of the Fallopian tubes (where it may rupture and kill a young woman).
Perhaps the most exciting use of ultrasound is in the rapid detection, in an injured patient, of internal bleeding in the chest, abdomen, or pelvis. This can tell us right away that a patient must go directly from the emergency department's trauma bay to the operating room (do not pass go, do not collect $200) because of major bleeding. Rapid decision making is critical in such a situation, because minutes can, quite literally, mean the difference between life and death.
When I was in training in the mid-80s, there was no such thing as the use of bedside ultrasound in the ED. The first paper about the use of ultrasound in emergency medicine was published in 1988. The American College of Emergency Physicians (ACEP) offered its first course dedicated to the subject in 1990. The Society for Academic Emergency Medicine developed a model curriculum for training emergency physicians to use ultrasound and published it in 1994. ACEP's Ultrasound Section has done a great deal of extraordinary work, including the development of ACEP's emergency ultrasound guidelines, first published in 2001 and revised in 2008.
Many emergency departments, including most of the ones where I've practiced over the years, still do not have ultrasound capability, because the ED does not have an ultrasound machine or the doctors aren't trained to use one (or both). But last summer I joined the staff at an academic medical center, and not only must I know how to do this, but I must acquire mastery sufficient to teach the next generation. So I have just taken the first step on the path to that mastery.
The path is long. If you want to be a technologist ("ultrasonographer"), that takes two years. The training program is also two years for echocardiographers, those who use ultrasound strictly for imaging the heart. Of course physicians learning ultrasound have a big initial advantage, because we already know the anatomy and physiology of everything we want to examine. On the other hand, ultrasound is only a relatively small part of our practice, because we don't use it on everybody, and so that greatly lengthens the learning curve.
Forty hours of highly intensive instruction was a good start, though. If you have occasion to see me as a patient, expect me to try to come up with a reason to examine some part of you with ultrasound. But don't worry. It doesn't hurt, it has no known adverse effects, and because I'm learning, there will be no charge. And I might just find something important, or at least be able to tell you the bad thing we worried about is not there. After more than a quarter century in practice, I am doing something that will make me a better doctor. Yes, I am excited.
Monday, March 12, 2012
Is Rush Limbaugh a Clear and Present Danger?
The First Amendment to the United States Constitution prohibits Congress from enacting any laws abridging freedom of speech or of the press. As with any other freedom, there is a societal expectation that it will be exercised responsibly. But what does it mean to exercise freedom of speech responsibly? The courts have given us very wide latitude. Perhaps most famous among relevant quotations are these words from Supreme Court Justice Oliver Wendell Holmes, Jr.: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." Although the ruling in which Holmes wrote those words in his opinion was later overturned, the principle was not: there is some speech that is sufficiently dangerous that it is not protected.
Although the First Amendment's protection of free speech has been interpreted broadly to cover a wide range of "expression," including the visual arts, the intent of the Framers was to protect political speech, and especially unpopular political speech.
Recently Rush Limbaugh directed his intemperate vitriol against the Obama Administration's decision to deny a religious exception for insurance coverage of prescription contraceptives (a topic on which I wrote earlier this month). But Limbaugh did not limit his attacks to the president or officials in his Administration. Rather, he included a Georgetown University law student who had testified before Congress, advocating such insurance coverage. She explained that the cost of prescription birth control is not inconsiderable. She was talking about hormonal contraception, but Limbaugh took the amount she estimated and applied it instead to one of the cheaper methods (condoms), calculating how often one must have sex to spend that much on birth control. Having done the faulty arithmetic, Limbaugh derided the law student as a "slut."
[It would, I think, have made just as much sense to do that arithmetic, assume the law student was in a monogamous relationship, and consider her intimate partner: "Wow. Lucky guy! Tired, but lucky." But I digress.]
While one who testifies before Congress makes herself into something of a public figure, there is certainly no expectation that she will then be subject to vile verbal attacks from those who disagree with her opinions. There was public outrage about Limbaugh's remarks, and a campaign quickly got underway to apply pressure to commercial sponsors of his radio show to withdraw their advertising support.
That is how it should be, I think. You don't like what Limbaugh says or how he says it? Convince those who support his program through advertising that being thus associated with him is not in their best interests. Commercial sponsors are very sensitive to what they believe are the public images of celebrities with whom they have relationships. Witness the reaction to the sexual promiscuity of Tiger Woods or the cannabis indulgences of Michael Phelps.
CNN has provided some perspective on this issue. Their Web site ran a piece by Marc Randazza, a First Amendment attorney from Nevada, explaining the continued importance of protecting politically unpopular speech. There is no question that much of what Limbaugh has to say is politically unpopular with those who are not among his loyal radio audience. Randazza is the editor of his own blog, The Legal Satyricon, which posted his thoughtful essay. But it also posted (as did CNN) a piece by Jane Fonda, Robin Morgan, and Gloria Steinem, co-founders of the Women's Media Center, who say the FCC should boot Rush off the air. They warn of the consequences of "society tolerating toxic, hate-inciting speech." They exhort their readers to complain to the FCC about Limbaugh, the idea being that the FCC would respond by taking action to remove Limbaugh from the broadcast radio spectrum.
How exactly the FCC could do that without plainly violating the First Amendment is unclear. The FCC can fine stations that have programming that violates its standards of decency. It might be amusing to see whether the ACLU is willing to defend Limbaugh should FCC declare his show in violation of those standards. But the FCC could do that. And, if it did, that would silence Limbaugh once and for all. Just like it did Howard Stern. Oh, wait. Stern just moved to satellite radio. Could Rush do that?
And that brings me back to the opening question, because Rush Limbaugh cannot be silenced unless he is dangerous - by First Amendment standards. Justice Holmes wrote that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
In the spirit of full disclosure, I should acknowledge that I listen to Rush, because I am interested in a broad spectrum of opinion, which necessarily includes extremes. In the same spirit, I must acknowledge that I often become sufficiently exasperated with him to change the station. And that is a freedom we all have. I will continue to exercise that freedom, and I will defend Rush Limbaugh's freedom to go on expressing his opinions on the public airwaves, no matter how offensive or stupid they may be.
Although the First Amendment's protection of free speech has been interpreted broadly to cover a wide range of "expression," including the visual arts, the intent of the Framers was to protect political speech, and especially unpopular political speech.
Recently Rush Limbaugh directed his intemperate vitriol against the Obama Administration's decision to deny a religious exception for insurance coverage of prescription contraceptives (a topic on which I wrote earlier this month). But Limbaugh did not limit his attacks to the president or officials in his Administration. Rather, he included a Georgetown University law student who had testified before Congress, advocating such insurance coverage. She explained that the cost of prescription birth control is not inconsiderable. She was talking about hormonal contraception, but Limbaugh took the amount she estimated and applied it instead to one of the cheaper methods (condoms), calculating how often one must have sex to spend that much on birth control. Having done the faulty arithmetic, Limbaugh derided the law student as a "slut."
[It would, I think, have made just as much sense to do that arithmetic, assume the law student was in a monogamous relationship, and consider her intimate partner: "Wow. Lucky guy! Tired, but lucky." But I digress.]
While one who testifies before Congress makes herself into something of a public figure, there is certainly no expectation that she will then be subject to vile verbal attacks from those who disagree with her opinions. There was public outrage about Limbaugh's remarks, and a campaign quickly got underway to apply pressure to commercial sponsors of his radio show to withdraw their advertising support.
That is how it should be, I think. You don't like what Limbaugh says or how he says it? Convince those who support his program through advertising that being thus associated with him is not in their best interests. Commercial sponsors are very sensitive to what they believe are the public images of celebrities with whom they have relationships. Witness the reaction to the sexual promiscuity of Tiger Woods or the cannabis indulgences of Michael Phelps.
CNN has provided some perspective on this issue. Their Web site ran a piece by Marc Randazza, a First Amendment attorney from Nevada, explaining the continued importance of protecting politically unpopular speech. There is no question that much of what Limbaugh has to say is politically unpopular with those who are not among his loyal radio audience. Randazza is the editor of his own blog, The Legal Satyricon, which posted his thoughtful essay. But it also posted (as did CNN) a piece by Jane Fonda, Robin Morgan, and Gloria Steinem, co-founders of the Women's Media Center, who say the FCC should boot Rush off the air. They warn of the consequences of "society tolerating toxic, hate-inciting speech." They exhort their readers to complain to the FCC about Limbaugh, the idea being that the FCC would respond by taking action to remove Limbaugh from the broadcast radio spectrum.
How exactly the FCC could do that without plainly violating the First Amendment is unclear. The FCC can fine stations that have programming that violates its standards of decency. It might be amusing to see whether the ACLU is willing to defend Limbaugh should FCC declare his show in violation of those standards. But the FCC could do that. And, if it did, that would silence Limbaugh once and for all. Just like it did Howard Stern. Oh, wait. Stern just moved to satellite radio. Could Rush do that?
And that brings me back to the opening question, because Rush Limbaugh cannot be silenced unless he is dangerous - by First Amendment standards. Justice Holmes wrote that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
In the spirit of full disclosure, I should acknowledge that I listen to Rush, because I am interested in a broad spectrum of opinion, which necessarily includes extremes. In the same spirit, I must acknowledge that I often become sufficiently exasperated with him to change the station. And that is a freedom we all have. I will continue to exercise that freedom, and I will defend Rush Limbaugh's freedom to go on expressing his opinions on the public airwaves, no matter how offensive or stupid they may be.
Sunday, March 4, 2012
Covering Contraceptives
The recent discussions of health insurance coverage for contraceptives have prompted me to take a look at a question I hadn't thought about in years. I have been vaguely aware that some paid prescription plans covered contraceptives and others did not. Recently the Obama Administration attracted attention by declining to allow exemptions, for reasons of religious objection, to the requirement in the Affordable Care Act that FDA-approved contraceptives be covered by health insurance policies without cost sharing.
At first I was intrigued by the subject because it appeared to raise an issue of constitutional law. Was refusing to allow a religious exemption a violation of First Amendment protections of religious liberty? First Amendment jurisprudence is both fascinating and daunting because there is so much case law. You cannot simply read the text and have a complete understanding of religious liberty in the United States. The plain language is very brief and very simple: "Congress shall make no law respecting an establishment of religion, or the free exercise thereof...." This simple text has been the subject of interpretation in many federal court cases over the past two centuries, a review of which is, I can safely say, far beyond the scope of an essay for this blog. Suffice it to say that "the free exercise" of religion is at the core of quite a few such cases.
A young law student attends a Jesuit university, and the health insurance provided by that university does not cover contraceptives. Many other universities not only cover prescription contraceptives but provide them to students at subsidized prices. Is this a matter of the free exercise of religion? I suppose the Jesuits think it is. I find myself inclined to agree with them, but then I am also sympathetic to the argument that employers will opt for coverage that does not include contraception for purely economic reasons (in other words, they're cheap) while claiming religious objection (maybe the company's owners are Catholics who assert their belief in Church doctrine). I am having trouble making up my mind about this, which is, I think, a good thing, given the complexity of the issue. But it would surprise me not at all if the Supreme Court were to say this provision of the Affordable Care Act is on the wrong side of the First Amendment.
Then I began to wonder about the economics of health insurance coverage for contraception. When I try to make sense of something complicated, I often resort to analogy. My employer offers vision care insurance as a stand-alone policy. That makes it very easy for the employee to evaluate its worth for the individual or the family. How much does the coverage cost? How much do we spend on vision care? Let's see: eye exams, glasses, contact lenses. It's not hard to do the arithmetic and come up with an estimate of whether the premiums are worth it.
Then I stopped and thought about it. Vision care insurance is not really insurance at all. Insurance is a way of pooling risk to protect against large losses that the individual cannot readily afford. So I have insurance on my car, because owning and operating a car presents some risks that I cannot readily afford, including expensive collision repairs, replacing the vehicle in the event of a serious crash or theft, or - and this is the really large risk - being held liable for personal injury to another person harmed in a crash.
Routine vision care provided by my optometrist isn't like that at all. I can certainly afford it. But my employer subsidizes the premium cost (which is why it's called a "benefit"), and my share of the premium is a good deal relative to the amount by which it reduces my out-of-pocket expenditures.
So what about contraception? Would I pay for coverage? Of course not. I don't use it. And even if I did, I'm not sure it would be a good deal. That's because it would probably be priced to offset the cost of the most expensive options, while my preference might be for something much cheaper. The expensive options are some of the higher-priced birth control pills, which can run $3 a day. But there are also BCPs that cost about one dollar a day, and other methods may be much cheaper. The long-term cost of an intrauterine device (IUD) is much less. An old-fashioned method, not very popular nowadays, the diaphragm, is highly effective when used properly, carries none of the risks associated with hormonal contraception, and is very cheap.
But coverage for birth control is not sold separately. It is included - or not - in health insurance policies that are primarily intended to protect us from high-dollar risks. Anyone who has ever had to receive inpatient care in a hospital or any kind of surgery or high-tech testing knows about that.
So I'm trying to make an economic case for including contraceptive coverage in health insurance. I can see the utility in including it for poor women on Medicaid, because the price may be an obstacle for them if they have to pay out of pocket. (Yes, I know, even the most expensive BCPs are cheaper than the pack-a-day cigarette habit many of them have, but they are addicted to nicotine, so they are not going to stop smoking to save the money to buy BCPs, even though a woman should not smoke and take the pill because of the risk of stroke and blood clots in the lungs).
But for women who can afford contraceptives, even if it means choosing one of the less expensive options, what is the economic argument for covering it through health insurance? All that does is drive up the cost, because the prescription plan administrator has overhead to cover and a profit to make. Not only that, but when a subscriber's out-of-pocket cost is just a co-pay, the high prices of some BCPs don't produce sticker shock, and that makes it easier for the manufacturers to charge much higher prices than they otherwise would. All in all, this seems a bad deal.
I suppose some will make the argument that unless contraception is provided "free" - see the words "without cost sharing" at the end of the first paragraph - some women will go without, which will increase the number of unwanted pregnancies. That, in turn, will increase either the number of abortions or the number of unwanted children, both unfortunate consequences. I imagine there are some public health researchers who have gathered empiric data and can tell us whether this intuitive assumption is correct. I imagine they can also provide an economic analysis comparing the cost of making contraception "free" with the cost burden of unwanted children growing up in families relying on government assistance for subsistence.
All of that makes my head hurt, because it brings us around to the subject of personal responsibility (or lack thereof) and the poor life choices so many people insist on making. Too bad there is no way to fix that. It's also too bad that, one way or another, we all wind up paying for it.
At first I was intrigued by the subject because it appeared to raise an issue of constitutional law. Was refusing to allow a religious exemption a violation of First Amendment protections of religious liberty? First Amendment jurisprudence is both fascinating and daunting because there is so much case law. You cannot simply read the text and have a complete understanding of religious liberty in the United States. The plain language is very brief and very simple: "Congress shall make no law respecting an establishment of religion, or the free exercise thereof...." This simple text has been the subject of interpretation in many federal court cases over the past two centuries, a review of which is, I can safely say, far beyond the scope of an essay for this blog. Suffice it to say that "the free exercise" of religion is at the core of quite a few such cases.
A young law student attends a Jesuit university, and the health insurance provided by that university does not cover contraceptives. Many other universities not only cover prescription contraceptives but provide them to students at subsidized prices. Is this a matter of the free exercise of religion? I suppose the Jesuits think it is. I find myself inclined to agree with them, but then I am also sympathetic to the argument that employers will opt for coverage that does not include contraception for purely economic reasons (in other words, they're cheap) while claiming religious objection (maybe the company's owners are Catholics who assert their belief in Church doctrine). I am having trouble making up my mind about this, which is, I think, a good thing, given the complexity of the issue. But it would surprise me not at all if the Supreme Court were to say this provision of the Affordable Care Act is on the wrong side of the First Amendment.
Then I began to wonder about the economics of health insurance coverage for contraception. When I try to make sense of something complicated, I often resort to analogy. My employer offers vision care insurance as a stand-alone policy. That makes it very easy for the employee to evaluate its worth for the individual or the family. How much does the coverage cost? How much do we spend on vision care? Let's see: eye exams, glasses, contact lenses. It's not hard to do the arithmetic and come up with an estimate of whether the premiums are worth it.
Then I stopped and thought about it. Vision care insurance is not really insurance at all. Insurance is a way of pooling risk to protect against large losses that the individual cannot readily afford. So I have insurance on my car, because owning and operating a car presents some risks that I cannot readily afford, including expensive collision repairs, replacing the vehicle in the event of a serious crash or theft, or - and this is the really large risk - being held liable for personal injury to another person harmed in a crash.
Routine vision care provided by my optometrist isn't like that at all. I can certainly afford it. But my employer subsidizes the premium cost (which is why it's called a "benefit"), and my share of the premium is a good deal relative to the amount by which it reduces my out-of-pocket expenditures.
So what about contraception? Would I pay for coverage? Of course not. I don't use it. And even if I did, I'm not sure it would be a good deal. That's because it would probably be priced to offset the cost of the most expensive options, while my preference might be for something much cheaper. The expensive options are some of the higher-priced birth control pills, which can run $3 a day. But there are also BCPs that cost about one dollar a day, and other methods may be much cheaper. The long-term cost of an intrauterine device (IUD) is much less. An old-fashioned method, not very popular nowadays, the diaphragm, is highly effective when used properly, carries none of the risks associated with hormonal contraception, and is very cheap.
But coverage for birth control is not sold separately. It is included - or not - in health insurance policies that are primarily intended to protect us from high-dollar risks. Anyone who has ever had to receive inpatient care in a hospital or any kind of surgery or high-tech testing knows about that.
So I'm trying to make an economic case for including contraceptive coverage in health insurance. I can see the utility in including it for poor women on Medicaid, because the price may be an obstacle for them if they have to pay out of pocket. (Yes, I know, even the most expensive BCPs are cheaper than the pack-a-day cigarette habit many of them have, but they are addicted to nicotine, so they are not going to stop smoking to save the money to buy BCPs, even though a woman should not smoke and take the pill because of the risk of stroke and blood clots in the lungs).
But for women who can afford contraceptives, even if it means choosing one of the less expensive options, what is the economic argument for covering it through health insurance? All that does is drive up the cost, because the prescription plan administrator has overhead to cover and a profit to make. Not only that, but when a subscriber's out-of-pocket cost is just a co-pay, the high prices of some BCPs don't produce sticker shock, and that makes it easier for the manufacturers to charge much higher prices than they otherwise would. All in all, this seems a bad deal.
I suppose some will make the argument that unless contraception is provided "free" - see the words "without cost sharing" at the end of the first paragraph - some women will go without, which will increase the number of unwanted pregnancies. That, in turn, will increase either the number of abortions or the number of unwanted children, both unfortunate consequences. I imagine there are some public health researchers who have gathered empiric data and can tell us whether this intuitive assumption is correct. I imagine they can also provide an economic analysis comparing the cost of making contraception "free" with the cost burden of unwanted children growing up in families relying on government assistance for subsistence.
All of that makes my head hurt, because it brings us around to the subject of personal responsibility (or lack thereof) and the poor life choices so many people insist on making. Too bad there is no way to fix that. It's also too bad that, one way or another, we all wind up paying for it.
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