Wednesday, July 26, 2006

Tierney Spins in Cirles on "Honor"

Behind the NY Times firewall, John Tierney shares his opinions on honor, insisting that in the Middle East they follow a "traditional" concept of honor which is alien to us:
In the West we’ve redefined “honorable” as being virtuous, fair, truthful and sincere, but that’s not the traditional meaning. Honor meant simply the respect of the local “honor group” - the family, the extended clan, the tribe, the religious sect. It meant maintaining a reputation for courage and loyalty, not being charitable to enemy civilians. Telling the truth was secondary to saving face.
If the concepts are that far apart, at what point should we recognize that we are discussing two separate concepts, even if we classify both as "honor". If the West views an orange as a tasty piece of fruit, and the Middle East views it as the result of a combination of red and yellow pigments, the fact that we can agree that both are orange doesn't mean that we're discussing the same thing. It is far too simplistic to suggest that, even if in other cultures the ties are stronger, people in the West don't form intense bonds to friends and family, to the point of being willing to lie, steal, or kill to protect their "honor group". Isn't it more than a bit simplistic (and perhaps more than a bit bigoted) to suggest that honor in the Middle East is synonymous with lying to save face?

Tierney elaborates on Western "honor":
Instead of might-makes-right, Christianity preached turning the other cheek. Instead of according special honors to an elite class of men, it preached egalitarianism and love toward strangers. It emphasized inner virtue, not outward glory.

The result was a new honor system in the West, chivalry, that was an uneasy combination of Christian virtues and knightly violence. Eventually, with the decline of the aristocracy and the rise of the bourgeois and democracy, the system evolved into what Bowman calls honor-by-merit, epitomized by the Victorian ideal of the gentleman who earns his reputation by working hard, playing fair, defending the weak and fighting for his country.
Another way of looking at this would be that the "honor group" became expanded to include a much larger population, and thus the requirement that to remain honorable you had to respect the rights of that larger population. A longer historical view might question what seems to be portrayed as a direct causal connection between Christianity and an interpretation of honor that arose in a small island nation some 18 centuries after Christ's birth. A more cynical view would be that this presentation of public virtue was not necessarily maintained behind closed doors. A more honest view would be that, whatever the Victorian reality may have been, we've not done a good job of living up to that ideal - and perhaps we never have.
The problem today, as Bowman sees it, is that the whole concept of defending one’s honor has been devalued in the West — mocked as an archaic bit of male vanity or childish macho chest-thumping. But if you don’t create a civilized honor culture, you risk ending up with the primitive variety.

“The honor system in Arab culture is the default honor system, the one you see in street gangs in America — you dis me, I shoot you,” says Bowman, a scholar at the Ethics and Public Policy Center. “We need a better system that makes it honorable to be protective of those who are weaker instead of lording it over them.”
If by honor we're talking about multi-generational honor-based blood feuds, well, yes... we of the West do tend to look down on that. But our culture is immersed in what Tierney contends is the "traditional" form of honor. We espouse a business culture which favors deception, if not outright lying, in order to maintain market advantage. We root for our local sports team, simply by virtue of its proximity. Our blood-soaked action heroes bring in hundreds of millions at the box office, and have even been known to ride their popularity into political office. We increasingly follow a concept of the meritocracy where the rich deserve to be wealthy beyond imagination, and the poor deserve penury. As a nation, we essentially shrug when the President demonstrates no particular concern about the loss of civilian life in a nation with which we are at war or which we don't deem to be of strategic importance, or with the secret detention and mistreatment of people our nation holds prisoner. When was the last national election where Victorian notions of honor were put ahead of winning?

Tierney's adopting a comparison of Arab honor to that of the inner city gang member? Is it that Tierney sees Arabs as being violent thugs, supporting themselves through crime, and who would kill a complete stranger over a pair of sneakers? Or is the parallel drawn exclusively in relation to taking revenge on someone for "dissing" you, in which case a less inflammatory example may have been G.W. Bush's five consecutive years of declining to attend the NAACP's annual convention? Perhaps instead, Tierney presents the parallel so that we can be drawn into his perspective - Arab culture, like street gang culture, is something to be eliminated without regret.

As for how you might transform the proposed Arab "primitive variety" of honor into a civilized honor culture, mabye Tierney would endorse attempting to introduce such concepts such as egalitarianism, and treating others as you want to be treated? He doesn't state what he has in mind, probably because the only things he could propose would undercut his thesis. As, for that matter, would any effort to examine the history of conflict in the Middle East through his prism of street gang philosophy. It's too easy to stand Tierney's arguments on their head: if Hezbollah hadn't "dissed" Israel by kidnapping its soldiers, and Israel weren't concerned about "looking weak" by negotiating a prisoner exchange, would we be seeing this massive military assault on Lebanon, or hearing Alan Dershowitz argue that "Every civilian death is a tragedy, but some are more tragic than others"?

Tuesday, July 25, 2006

Vishal Castun's Big Bluff

Reading the article at, Web Site Encourages Blacklist of Med-Mal Plaintiffs, I can't help but wonder if the author got a press release from the owner of and took it far too seriously.
The site,, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney.

* * *

The registered operator of the Web site, Medico-Judicial Online Media, has begun gathering data on Florida medical malpractice cases filed after July 4, said company spokesman Vishal Castun. The operators plan to make the database available for free starting next July, and eventually hope to publish a database covering medical malpractice cases across the United States.
So we have a site which nobody has ever heard of before, promising a database which is not yet available, to help doctors blacklist patients and to encourage medical malpractice plaintiffs to sue their lawyers... for malpractice? The apparent basis for the claim against the lawyer would be,
Prior to filing your medical malpractice lawsuit, your attorney should have counseled you regarding the pros and cons of filing your suit. Your attorney should have explained to you that information relating to your case would become a matter of public record and that the public would have the unrestricted right to view it. This should have been summarized for you in a written document called an "informed consent" which you should have been required to sign. If your attorney proceeded with a lawsuit without warning you of the risks involved, you may be the victim of Legal Malpractice and may be entitled to compensation.
Has this proposed theory of legal malpractice held water in any U.S. jurisdiction? Because according to the article, Castun intends to float the site exclusively by offering advertising opportunities to legal malpractice lawyers. Of course, "Castun declined to identify the principals behind the project."

I think what we have here is a person who bought a URL a few years ago, has been wondering what to do with it, got a brainstorm and sent off some press releases, but doesn't have anything approximating a real business plan. But I'm sure he'll cash your check if you want to sponsor him.

A quality law firm website?

You shouldn't assume that yesterday's boilerplate law firm website, which you probably already overvalue, will maintain its search engine performance or get the best price through Google's "pay per click" AdWords service unless you pay some attention to quality. There are aspects of quality you may expect - adding content to the site helps. If all you have is the web designer's initial boilerplate, think about adding some original material.

It is safe to assume that your site already has a "contact us" feature of some sort - consider a "contact us" page. Does your site have a privacy policy? What about external links - I'm not suggesting that you send your visitors off to other websites or your competitors, but apparently this is now factored into your site's algorithmically determined quality so you may wish to consider adding some links to legal reference sites, government offices, courts, or other similar resources your visitors might find useful.

Saturday, July 22, 2006

Is Strength Like "Cool"?

If I remember my studies from Fonzerelli 101... If you're cool, you don't wonder if you're cool - you just are If you wonder if you're cool, you're most certainly not cool.

Does the same hold true of people who spend countless hours wondering whether something will make them "look weak"? Are the truly strong predisposed to this type of internal (or public) debate? Can a truly strong person walk away from a debacle because he isn't afraid that people will think he's weak - or doesn't care, because he knows they're wrong? Is part of strength not fearing being called or perceived as weak?

Can you truly be a strong leader if your biggest fear in life is a proliferation of bumper stickers reading "W Stands For Wimp"?

Strength and Silverbacks

I don't pretend to be an expert in anthropology, but in my recollection of the documentaries I've seen about the great apes there is an alpha male who controls his family, and who attempts to drive off any males who might threaten his position before they become large and strong enough to do so. This has given rise to the image of the 800 pound gorilla - fighting as necessary, sometimes to the death, but keeping his family in line and competitors out of his territory primarily through displays of grunting, growling, and physical strength. It is important, of course, for the alpha male not to "look weak" because this might inspire a potential competitor to try to literally knock him off his throne.

I am not sure if this is the model that people like William Kristol intend to follow when they express their never-ending fears that if the U.S. does one particular thing or the other it will "look weak". People like Kristol seem to use this argument to shape a particular course of action - it becomes an argument of convenience where any course of action they endorse makes the U.S. "look strong", and anything else makes the U.S. "look weak". Unfortunately, these arguments seem to have been fully embraced by the White House, which (despite having tried to make us "look strong" through an invasion of Iraq, the aftermath of which is now said to make us "look weak") seems petrified of "looking weak".

I could argue first that these notions of "strength" are less thoughtful than those of the literal 800-pound gorilla, who attempts to rule over his family until he is frail and elderly by never involving himself in a fight he can't decisively win. The pre-9/11 complaints of the U.S. as an 800-pound gorilla were more in line with perceptions of an alpha male gorilla - with the strongest military in the world, the U.S. had a lot of weight to throw around (even without firing a shot). This seemingly aggravated some on the right who took the position that it is worthless to have a strong military unless you used it - but there is no question but that the U.S. was perceived as strong. Perhaps no moreso than by those on the right who wished us to engage in active military intervention in a number of nations, including Iraq, so we could bend or force the rest of the world into the image we desired. (You know... like Kristol's club, PNAC.)

Yet it seems that it is the Kristol/PNAC approach to the world that makes the U.S. seem weak. They confuse the power of having a might military force at your disposal with the power of that mighty military. We kicked Iraq's door down in a most impressive manner - but the manner in which the Bush Administration subsequently drove us into a ditch in its handling of the occupation (Kristol's metaphor) now supposedly make us "look weak". So we have to attack additional nations, like Syria and Iran, so we can again "look strong". It has been noted that this presupposes that we can control the perceptions of others - a valid point. But on a more mundane level, perhaps the problem is that the easiest way to look strong is to intimidate your way to victory without having to physically fight. And perhaps the real problem is that once you "look weak" in the outcome of even a single fight, your image is diminished and (as Mike Tyson will attest) can't be restored even through a string of additional fights against easier opponents.

Perhaps Kristol's vision of geopolitics derives from listening to Kenny Rogers songs, where the good guy always wins.

A Solution for Lebanon?

Oh, it's probably ultimately unworkable, but so is every other solution.

The context: Israel (and most of the rest of the world, apparently including most Arab states) wants to see Hezbollah disarmed. It could not achieve disarmament through eighteen years of occupation of southern Lebanon, and is now attempting to achieve disarmament through an air campaign which will, in all likelihood, destroy much of Hezbollah's arsenal while increasing Lebanese and Arab enmity toward Israel and sympathies with Hezbollah - like the occupation, a recipe for short-term gain and long-term pain. Israel has never wanted any significant international military force on its borders (and after the last time it was attempted not many foreign militaries have much interest in trying to act as peacekeepers). Israel distrusts the United Nations, and no UN force would be of sufficient size and strength to disarm Hezbollah.

So... How about trying something completely different? Bring in a UN force to monitor Lebanon's borders with Syria. Bring in a sufficient foreign miltary and police force to maintain order and stability in those areas of Lebanon north of the Litani River while the Lebanese military responds to Hezbollah. And make Lebanon and its military, supported by contributions of foreign training and military hardware, responsible for policing and controlling areas controlled by Hezbollah, including Lebanon's border with Israel. (Ideally, subject to practical limitations and security issues, the Arab states which oppose Hezbollah could be enticed to contribute manpower to any police force required as part of this effort, such that under most day-to-day circumstances the man on the street in Lebanon would encounter the face of an Arab policeman rather than a foreign soldier.) The people of Lebanon will see for themselves in Hezbollah is willing to kill Lebanese soldiers in order to maintain its military operations - something that should bring some sense of sobriety to the notion of Hezbollah as fighting for Lebanese independence and freedom from foreign occupation. And it keeps western forces off of the front lines.

If this plan were to work you should end up with a well-trained, well-disciplined Lebanese army which can ultimately maintain control of the entire nation, reducing the likelihood that Hezbollah will again be able to develop a significant militia. Perhaps a Lebanon that looks something like Jordan - but with an elected government instead of a monarchy.

Friday, July 21, 2006

Cosby on Poverty

I had thought that enough time had passed that Bill Cosby would no longer be subjected to screeds accusing him of being unfair to the African American poor. Wrong. Michael Eric Dyson just can't stop pouring it on.
By convincing poor blacks that their lot in life is purely of their own making, Cosby draws on harsh conservative ideas that overlook the big social factors that continue to reinforce poverty: dramatic shifts in the economy, low wages, chronic underemployment, job and capital flight, downsizing and outsourcing, and crumbling inner-city schools.

None of these can be overcome by the good behavior of poor blacks.
Dyson claims that the problem is that Bill Cosby is looking only at individual choice, while disregarding societal issues which affect those choices. But couldn't it be said of Dyson that his arguments minimize the importance of individual choice while holding greater society responsible for poverty? Is there any reason why poverty cannot be attributed, quite correctly, to both problems with society and to poor choices by individuals? Dyson would not claim that poor people are inherently criminal, or programmed for teen pregnancy - quite the opposite:
In rigged town-hall meetings, Cosby assembles community folk and experts who agree with his take on black poverty: that it's the fault of the poor themselves.

It's often difficult to point out just how harmful that sentiment is, because most black folk do believe strongly in taking their destiny into their own hands. They believe in hard work and moral decency. They affirm the need for education and personal discipline. When they hear Cosby say that poor black folk should go to work, stay out of jail, raise their children properly and make sure they go to school, they nod their heads in agreement.
So these are "rigged town-hall meetings" which are attended by people who Dyson argues actually do reflect the majority opinion? That's an interesting way to "rig" a meeting.

Presumably these people agree with Bill Cosby that individual choice - the choice to take the path they model, or such individual choices as becoming an unwed parent, joining a gang, committing crime, or vandalizing the neighborhood are not made inevitable by poverty. Sure, societal problems can make it more difficult to make the correct choices, and from a "big picture" perspective you can show correlations between certain of society's ills and a greater number of poor choices by those affected by the ills. But is it not true that many of the problems can be fixed, or at least improved, from the bottom up as well as from the top down? And given the tendencies of today's society, is it really constructive to sit around and wait for a top-down fix, while ignoring the individual choices which collectively make inner city life so miserable for so many?

Thursday, July 20, 2006

Brooks on Middle East Democracy

Today's column by David Brooks is worth reading, if you are able to peek behind the firewall. The bulk of the column is an unfortunately brief synopsis of the debate of two experts on the Middle East, Reuel Gerecht and Jeffrey Goldberg. Gerecht argued that democracy will in the short-term result in extremist governments with a profoundly anti-Israel bias, but that this pain is a necessary part of developing the institutions integral to democracy:
The only way to reform the Middle East, Gerecht concluded, is by changing political institutions and enduring as the spirit of democratic self-government slowly changes society. There will be a period of fever, but the fever will break the disease.
Goldberg argued that even if the roots of democracy were to survive such an initial period, such a period could easily stretch on for more than a century of jihadism against Israel and, internally, tolerance of such acts as "honor killings".
In Goldberg's view, cultural reform has to precede political reform. The West should continue to champion the Arab world's liberal modernizers, who believe in pluralism and human rights and who may have deeper roots in society than we think.
Gerecht notes that democractic movements have made some real advances; Goldberg notes that even with their participation in democracy key regional players such as Hamas and Hezbollah will always embrace Jihad.

Brooks himself sees the Bush Administration as taking Gerecht's position that institutions shape behavior, and "hanging tough" on the issue of democratic reform. And he argues that neither model is "winning" but that a worse outcome would be to return to the stablility of autocratic regimes such as those of Egypt and Saudi Arabia which spawed 9/11. (Brooks doesn't mention the sad state of democratic reform in those nations.)

Rather than asking "who is right", perhaps the better approach is to ask how the two models can complement each other. That is, accept Goldberg's position that we need to change hearts and minds now to move people away from jihadism, but also to accept Gerecht's position that we need to build the institutions of democracy in order for it to be sustainable over the long term. Even if we assume the best of intentions, the Bush Administration's policies appear to be paving the way to jihadism. I'm not sure that Brooks would disagree; I think to the degree he treats the models as incompatible it is so that he can praise the Bush Administration for its embrace of the institutional approach without confronting its present failings.

Gerrymandered Nation

I saw Joe Scarborough joining in those on the right who presage that the Democrats will "take back Congress" this fall, while giving some cues which suggest that his prediction was not necessarily sincere. Not one word about the gerrymandering which has removed any real danger of election loss for the vast majority of Members of Congress.

What's going on? It's a "can't lose" for the right-wing talking heads. If they are right, they can pat themselves on the back for their "unbiased" predictions. If they're wrong, and I think most expect to be wrong, they can describe it as a great victory for the Republicans and a vindication of the President.

Personally, I think this is part of a coordinated media campaign.

Blogs and Negative Campaign Ads

In the last Presidential election, we saw certain blogs and websites emerge which professed to assess the veracity of campaign ads and statements by the candidates. Although I haven't been following the race particularly closely, I have noticed that in Ned Lamont's supporters in his race against Joe Lieberman choose not to wait for these sites to analyze Lieberman's ads - they link to the ads up on their unofficial Lamont weblog and make fun of them. It also seems to be one of the first places that Lamont's new ads apepar. Should the responses go over the top, well, it's unofficial. (And Lamont's campaign is doing quite well.)

I don't know how effective this is yet, but given that it is an inexpensive way to publish a response to an opponent's attack ads, and if done right may be one of the first places the media looks when covering campaign ads (you know - those "We don't agree with negative campaigning, but we will now play in full candidate X's latest attack ad" segments), I think we can expect to see this type of blog commentary in pretty much every contested race in the fall.

Sunday, July 16, 2006

Friday, July 14, 2006

That Tenacious Photocopier

It's always willing to put in overtime.

With three submissions in the lower court ending in defeat, it's time for an application for leave to appeal!

The best part - for this one they get to submit five copies to the court!

Everything Old Is New... to Thomas Friedman

Behind the Firewall, the New York Times' ostensible expert on the Middle East writes,
When you watch the violence unfolding in the Middle East today it is easy to feel that you’ve been to this movie before and that you know how it ends - badly. But we actually have not seen this movie before. Something new is unfolding, and we’d better understand it.

What we are seeing in Iraq, the Palestinian territories and Lebanon is an effort by Islamist parties to use elections to pursue their long-term aim of Islamizing the Arab-Muslim world.
This is new? Are we using geological measures of time? (Ten thousand years ago there were no elections at all, and now, suddenly....)

While Friedman suggests that this phenomenon is mostly a concern in nations like Iraq or Lebanon, or in the Palestinian Territories, where political factions may also contol their own militias. Is it truly a secret to Thomas Friedman that there have long been significant concerns over the possibility that democratic elections in the Middle East that anti-Western and Islamist groups may gain power or even control of the government if free elections were truly permitted in Saudi Arabia or Egypt?
The world needs to understand what is going on here: the little flowers of democracy that were planted in Lebanon, Iraq and the Palestinian territories are being crushed by the boots of Syrian-backed Islamist militias who are desperate to keep real democracy from taking hold in this region and Iranian-backed Islamist militias desperate to keep modernism from taking hold.
Is the problem, then, that there are Islamist parties, that there are parties which control militias, or just that there are Islamist parties that control militias? And in which of those regions are the Islamist parties actually complaining about democracy, or fearing that it might spread? When you're winning elections you generally want democracy to spread (even if you aren't particularly to maintaining it in the longer-term).

To Friedman, democracy seems to mean "You should hold free and fair elections, and vote for whomever you want... as long as you elect the right person and party." Am I wrong, or are the shifts in mindset required for democracy and progressive government to take hold largely generational in nature - if you grow up with them, they seem like second-nature, but they're hard to impose upon a population which is used to something else. (And, unfortunately, they seem easier to tear down than to build up.) To state the obvious, even in the absence of private militias holding an election, even if it is free or fair, is no guarantee that a nation will be transformed into a democracy, nor is it a guarantee that the elected leader will be the person Thomas Friedman would prefer.

Wednesday, July 12, 2006

That's The Best Evidence He Can Find?

Describing how bloggers have embraced conspiracy theories, Eugene Robinson provides only one example to back up his claim:
Almost immediately after Lay's death was reported last Wednesday, bloggers began speculating that he had somehow faked his demise, which "conveniently" came just before his sentencing for his role in what was arguably the most spectacular business fraud in American history.

"I wonder how many doctors you need to bribe to fake your own death," Scott Adams, creator of the comic strip "Dilbert," wrote in his blog. "Is one enough? Or is there some special double-checking that the police do if the guy is heading for prison? I'm sure there's a body, but I wonder if it's his. I have a bad feeling that some pizza delivery guy's last words to his co-workers were 'Hey, I have a delivery to that Enron guy's house! Wish me luck!' "
Scott Adams? Isn't this a bit like citing to The Onion as evidence that American newspapers don't fact-check? (Or is it more like citing to a Eugene Robinson column....) For some reason, Robinson doesn't mention Adams' implication in the same post that Ken Lay may actually have been Burt Lahr.

Scott Adams apparently likes to write about conspiracy theories because they provide easy fodder for what he does - making jokes.
My favorite conspiracy theory is the one that says the world is being run by a handful of ultra-rich capitalists, and that our elected governments are mere puppets. I sure hope it’s true. Otherwise my survival depends on hordes of clueless goobers electing competent leaders. That’s about as likely as a dog pissing the Mona Lisa into a snow bank.

The only way I can get to sleep at night is by imagining a secret cabal of highly competent puppetmasters who are handling the important decisions while our elected politicians debate flag burning and the definition of marriage.

It’s the only explanation for how the governments of the world could be staffed with morons and yet everything still runs okay, sort of. Granted, things aren’t perfect, but when you hear our leaders talk, you have to wonder why our energy policy doesn’t involve burning asbestos on playgrounds. There must be some competent people pulling the strings behind the curtain, adjusting the money supply, twiddling with interest rates, choosing the winners for American Idol, and that sort of thin
I know it's fashionable for editorial columnists to dump on bloggers these days, but c'mon.

Sunday, July 09, 2006

CleanFlicks Struts Its Stuff

I read about the judicial shut-down of CleanFlicks on (where it's referenced as CleanFlix), and thought I would take a look at their site to see what the fuss was about. They claim that their editing is pretty seamless (you don't realize that you're watching an edited DVD), and they seem intent on demonstrating their prowess right on their main page.

Is this a seamlessly cleaned up polygamous family from HBO's "Big Love"?

Note that they also depict this family's house - which is very large with a three car garage. Three cars? Could it be a combination of the three neighboring houses (one for each wife) from Big Love? A news article explains,
As many as 90 video stores nationwide -- about half of them in Utah -- purchase movies from CleanFlicks, Lines said. It's unclear how the ruling may effect those stores.
There you go....

(Insert here any obligatory apologies to the good citizens of Utah.)

Saturday, July 08, 2006

Oh, That'll Happen....

History Professor Greg Grandin suggests that President Bush should press Mexico to undertake a recount of its Presidential election results:
The official tally gives Mr. Calderón a razor-thin lead, and there are credible reports of significant irregularities that could, at best, weaken the legitimacy of a Calderón presidency, and at worst, lead to escalating protests. The disputed votes include the 904,000 annulled ballots that come primarily from regions that went heavily for Mr. López Obrador, as well as discrepancies between the numbers handed in by polling stations and the actual ballots cast.

The best thing the United States can do now is to support the push for a recount and to refrain from calling on Mr. López Obrador to concede.
He seems sincere.... Is he a professor of ancient history?

Thursday, July 06, 2006

Oops - I missed an element

I had previously described the David Brooks path to a successful life:
The wealthy of our society are able to hire nannies, who can love their children and teach them how to resist the temptation of marshmallows before the age of three. Children of privilege, having both the love of an nanny and the power of self-distraction inculcated within them by the age of three, will be all-but-guaranteed that a suitable personality in high school, and success in their future lives. Unfortunately, this may leave the nanny too busy for her own children, who will succumb to the temptation of marshmallows and thus fail to achieve the American dream. Because, darn it all, good child care is just too expensive to provide to people who can't afford to pay for it themselves.
The missing element, filled in by Brooks a couple of days ago, is that the love of a good nanny raises the child's oxytocin levels. So I guess we can fix all of society's problems pretty easily, as oxytocin is injectable. Apparently oxytocin also makes school more interesting:
The dropout rates are astronomical because humans are not machines into which you can input data. They require emotion to process information. You take kids who didn't benefit from stable, nurturing parental care and who have not learned how to form human attachments, and you stick them in a school that functions like a factory for information transmission, and the results are going to be horrible.

The Gates Foundation recently sponsored focus groups with dropouts. The former students knew how detrimental dropping out would be. Most were convinced they could have graduated if they wanted to. But their descriptions of school amounted to a portrait of emotional disengagement: teachers were burned out and boring; discipline was lacking; classes weren't challenging; there weren't enough tutors and wasn't anyone to talk to; parents were uninvolved.
Brooks also notes, "In humans, oxytocin levels rise during childbirth, breast feeding and sex." Hm. I wonder if Brooks would nominate this gal for a teacher of the year award - she seems to be three for three.

Wednesday, July 05, 2006

There's No Such Thing As Defensive Medicine

At least, not in the sense that doctors, their insurers and their lobbyists contend.

The argument behind "defensive medicine" is that doctors are so fearful of being sued that they order unnecessary medical tests in order to avoid the possibility of being incorrect in a diagnosis. From a legal perspective this makes little sense, given that doctors dictate the standard of care. If a doctor can meet the standard of care defined by his own profession without prescribing the "unnecessary" test, there's no malpractice suit. Sure, it can be a bit more complicated than that if you have disagreement as to the standard of care. But if 99% of the doctors in a particular legal jurisdiction would not order the test, even in the unlikely event that an expert witness would assert that a violation of the standard of care had occurred, a plaintiff would have a hard time arguing that they're all falling below the standard of practice for that region.

Doctors' lobbies also like to assert that malpractice litigation is a "lottery" which has nothing to do with the question of whether or not malpractice actually occurred. If doctors truly believe that, then they wouldn't be ordering additional tests - as by their own claims the quality of their treatment (poor, good, great, phenomenal, or "defensive") has nothing to do with whether or not they will be sued. It would be nice if, on this issue, the lobbyists would decide which horse they want to ride. (But if nobody ever calls you on it....)

Further, there is no evidence that any tort reform measures have had any impact on so-called "defensive medicine". As it becomes harder and harder for patients - even those severely and clearly harmed by terrible doctors - to sue their doctors, you would expect that levels of so-called "defensive medicine" would decline. The fact that it doesn't suggests either or both of the following: First, "defensive medicine" is not so much about malpractice, as it is about being right. That is, a doctor is being perhaps excessively cautious in prescribing additional testing that the doctor does not believe to be necessary, but would rather be 99.999% sure in a diagnosis than a mere 99.9%... or 95% or 90%. Kevin MD apparently believes this to be the case, even as he continues to blame lawyers for this excess of medical caution:
Often, defensive tests are phrased like this: "I don't think that your headache is anything to worry about, but 'just to be on the safe side' (or 'just to be complete', or 'just so we're not missing anything'), let's do a CT scan to rule out a tumor." Patients will then be appreciative your thoroughness and completeness. It's really quite a positive-reinforcing phenomenon.
So the doctor is rewarded by the patient's gratitude, and the patient's being impressed by the thoughtful, complete care. The doctor bills for the services through the patient's insurance company, profiting from the supposed "waste" of defensive medicine. The insurance company agrees that the tests are medically necessary and thus pays for them. And, like everything else that is wrong with the world, all of this is somehow magically the fault of trial lawyers. Second, even if it is partially motivated by fears of liability, those fears are either exaggerated or irrational. If by objective measure the chances of being held liable for malpractice, and the maximum payout for any successful malpractice claim, go down, to the extent that "defensive medicine" is truly inspired by fear of litigation it too should decline. The fact that it does not means either that doctors are not responding rationally to the realities of malpractice litigation, or that one has nothing to do with the other. Over at DB's Medical Rants, a commenter claims,
A personal example: appendicitis. I was nearly alone among surgeons in my community, in wanting to see the patient before deciding if a CT was needed. Virtually every other would hardly take a call from the ER if the study hadn’t already been done. I felt that in the vast majority of cases, the diagnosis could be made on clinical grounds. And yet, in seeing a patient and diagnosing appendicitis, and recommending surgery absent a CT scan, I always felt a bit “out there,” and always felt the need to let a patient know it could be ordered and that in fact most would order it. It was, I’m happy to say, a rarity that a patient requested it after my full explanation. What’s the point? You tell me. I can’t figure it all out.
From a malpractice standpoint, the point would be that doctors are prescribing tests which have nothing to do with potential liability. The fear here is what? Ordering an appendix surgery on the basis of a physical examination and blood tests, but having it turn out that the patient's appendix is healthy? In what state would a lawsuit over such a misdiagnosis be economically viable for a plaintiff's law firm? What type of damage award might the patient expect? (Dare I venture, none and none?)

In Dr. Centor's "rant" preceding that comment, trial lawyers are somehow held responsible for the lazy practice of medicine:
As I consider defensive medicine, what I see (and admittedly I cannot quote a study) is testing prior to a careful history and physical. Why? Because one can always defend a test result, and the history and physical are not considered as definitive. Most patients who come through an Emergency Room in 2006 have a CT scan (I am being a bit hyperbolic here, but not overly hyperbolic). Ask any radiologist, internist or family physician about the number of unnecessary CT scans in ERs and they will all tell stories.
Let's see.... The doctor charges for the consultation (apparently without actually performing any service beyond referring the patient for testing), the doctor gets to see many more patients per hour by avoiding the time-consuming tasks of taking a thorough history and performing a physical, the lab charges for the tests requested, and the doctor charges again to tell the patient the test results... and with some doctors, the test is performed by a clinic in which the doctor holds a financial stake, such that the doctor profits further from the administration of what is argued to be an unnecessary test. Yet somehow it is the fault of trial lawyers that doctors don't bother to physically examine their own patients? It is defensive medicine to not physically examine a patient?

Dr. Centor asserts in relation to defensive medicine, " physicians and lawyers probably cannot have a constructive discussion on this point because we do not share a common understanding of vocabulary." If that's true, it would appear to be because as far as doctors are concerned, defensive medicine is something that is done by "other doctors," but rarely if ever by themselves. It is responsible for billions of dollars in medical costs, as long as you don't ask for any of those claimed costs to be supported by evidence. It is supposedly driven by tort litigation, even though its claimed prevalence is independent of "tort reform" measures which limit patient access to courts and suppress malpractice litigation. And any unnecessary or redundant testing is passed off as being "defensive medicine" even though an awful lot of that testing is actually documented as being the result of self-referrals (doctors administering the tests themselves, or having tests done at facilities in which they hold a financial interest), or within the context of clinics which need to maintain a level of appointments for their high-cost medical medical imaging equipment which would otherwise operate at a loss.

Dr. Centor gives the example of stroke patients getting "both an MRI and a CT of the head for routine strokes" where no useful additional information is likely to be obtained through the second test. He gives no evidence that the double-testing is in any way related to defensive medicine, or has ever helped a physician facing a malpractice suit over the inadequate treatment of a stroke victim. But such redundant testing would be extraordinarily profitable for the facility administering the tests.

I guess the problem is one of language - until doctors can articulate what "defensive medicine" is, when it occurs, how to recognize it, what it costs, and how it actually relates to the tort system, and why tests which could as easily (or more easily) be explained by other factors should be included within the definition, then no, they're not likely to reach any significant level of agreement with trial lawyers.