"Cafeteria Plans" Are Socialism?

After sticking his foot firmly into his mouth less than a month ago, Michael Kinsley's back with another healthcare column:

But there can be differences in how much care insurance plans will pay for. You should not be surprised if people who expect to have more medical expenses are attracted to plans that pay more of your medical expenses.

If there are multiple plans (as some of the reform bills require), healthy customers will drift toward the cheaper plans and sick or potentially sick customers will drift toward expensive ones. This trend will feed on itself. The cheap plans with healthy customers will be able to get even cheaper, while expensive plans, burdened by hypochondriacs in the mood for an MRI body scan as well as with the truly sick, will get pricier.

Employers typically offer group health insurance plans, often "cafeteria style", allowing employees to choose between plans and often between insurers, to try to find the best plans for their individual circumstances. Yes, quite obviously, people who expect to undergo a lot of routine care for a chronic condition, and who expect to be paying for equipment, medication, or both, to treat that condition, will typically choose a plan that minimizes their out-of-pocket costs. Yes, couples planning a pregnancy are likely to pick a plan that covers prenatal care and pregnancy more completely than one that does not. And so it goes.

It might astonish Kinsley to learn that major employers, probably including his own, offer this type of choice to their employees, likely including him, and that they have no real problem getting insurers to sign up to offer their plans as possible choices. But apparently it does? Granted, in the employment-based model, insurers get some protection from the fact that most people in the active workforce are reasonably healthy, and people can only switch plans once per year.

To prevent this "death spiral," some of the reform legislation calls for a sort of tax on lucky insurers, with the money going to the unlucky ones.

Kinsley doesn't mention any specific legislation, and I'm not aware of any that fits this description. I have heard proposals for health insurance "co-ops" instead of a public plan, which involve subsidies for sicker enrollees, but I haven't heard anything about taxing other insurers to finance those subsidies. And yes, if you can walk into an office any day of the year, no matter what the state of your health, and buy health insurance at the same rate as somebody who's in great health, some form of subsidy will be necessary or the system fails. And there are a lot of potential devils in the details of how the subsidy might be calculated. Kinsley's arguing that such a system would be divorced from market forces, which is true. But what are his solutions?

If the government requires insurers to accept all customers and charge all the same price, regulates all aspects of their marketing to make sure they aren't discriminating, and then redistributes the profits to make sure that no company gets penalized unfairly, in what sense is the industry still "private"?

The easiest thing for a columnist to do - swat down a proposal that nobody has made. Or is he describing what he believes the insurance companies have proposed as their alternative to the public plan?

And as long as the forces inherent in medicine - such as your natural reluctance to haggle over price with the doctor who will be conducting your brain surgery tomorrow - haven't disappeared, in what way will health care resemble a "free market"?

Kinsley's correct, neither healthcare nor health insurance are, or realistically can be, models of the "free market" in action. But what's his point - what direction does he believe reform should take?

The Innumerate Michael Kinsley

It should, perhaps, go without saying that you shouldn't take financial advice from a guy who can't do simple math, but in case you somehow glossed past this doozy from Michael Kinsley on healthcare reform:

My list would start with malpractice reform. An achingly balanced CBO report last year cited a study showing that victims of medical negligence are 2 1/2 times more likely to get compensation than people who were not victims. This was an argument against reform: that for every dollar going to victims of malpractice, "only" 40 cents goes to plaintiffs who have no case at all.

Does it need to be explained that his conclusion isn't supported by his claimed data? Nothing in the snippet he presents describes either the frequency of claim by people who are "not victims" or the relative amounts of recovery.

Kinsley could have easily tracked down the study online. It's easier than ever - before I had even finished typing the third word of the title into Google, it was offering to auto-complete the title as a search term. Ten seconds.

Looking at some of the data from the study, the issue seems to be this: The study found that of 1452 malpractice claims, 889 involved both error and injury. Of those claims, 73% of claimaints received compensation. In contrast, by the study's criteria, 515 claims involved injury without medical error at 37 claims involved neither injury nor medical error. Of those claims, 151 (27%) resulted in compensation. 73% is "approximately 2 1/2 times" 27%.

But as the study plainly states:

Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs. A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter. In a sense, our findings lend support to this view: three quarters of the litigation outcomes were concordant with the merits of the claim.

That is, Kinsley would have difficulty being more wrong if he tried.

Since Kinsley raised the subject, though, it is fair to ask "Exactly what would this 'malpractice reform' look like?" Would it diligently ferret out all actual claims of malpractice - as the study indicates, "the great majority of patients who sustain a medical injury as a result of negligence do not sue." Apparently not. Even if administrative costs were pared to the bone for such a system, that approach would significantly increase expenditures on medical malpractice claims. What if there were better ways to ferret out claims without merit?

Although one third of the claims we examined did not involve errors, most of these went unpaid. The costs of defending against them were not trivial. Nevertheless, eliminating the claims that did not involve errors would have decreased the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls). In other words, disputing and paying for errors account for the lion's share of malpractice costs.

So what precise reforms does Kinsley propose that will save us the 13-16% of current malpractice expenditures that go to defending against claims that should not have been filed?

The authors of the article explain why these cases are filed in the first place:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.

Well, we could require the disclosure of the outcome of peer review to patients and their families. (You think doctors howl about malpractice... just try legislating public peer review.)

Having noted the fact that a huge factor in the cost of malpractice litigation lies in trying to penetrate the wall between the patient and information that can lead to proper assessment of malpractice cases, the authors of the study make this curious suggestion:

The combination of defense costs and standard contingency fees charged by plaintiffs' attorneys (35 percent of the indemnity payment) brought the total costs of litigating the claims in our sample to 54 percent of the compensation paid to plaintiffs. The fact that nearly 80 percent of these administrative expenses were absorbed in the resolution of claims that involved harmful errors suggests that moves to combat frivolous litigation will have a limited effect on total costs. Substantial savings depend on reforms that improve the system's efficiency in the handling of reasonable claims for compensation.

The authors' mistake, of course, is in assuming that malpractice reforms are primarily meant to reduce frivolous litigation. It should be patent from the result that they are designed to make it more difficult and enormously more costly to get any malpractice case to trial, to increase risk to the plaintiff's lawyer both by vastly increasing the amount of money it takes to litigate a claim and by forcing a significant expenditure to investigate other claims before they can even be properly reviewed for merit, and to place economic pressure on the plaintiff to settle by dragging out the litigation process and by imposing caps that limit the amount of damages that a severely injured plaintiff can recover.

If we truly wanted to create an efficient system that allowed plaintiffs' lawyers to minimize the number of questionable cases they bring, reduced the cost of litigation, shortened the time it takes to litigate a case, and ensured that people received fair and appropriate damages, a good place to start would be by jettisoning the "reforms" that have been implemented to date that largely benefit the insurance industry and taking a good hard look at other systems. I suspect that malpractice victims would be largely supportive of a two-track system, one of which involves fair, fast administrative review of malpractice claims but with limits on non-economic damages (perhaps even a schedule of damages) and limits on attorney fees similar to worker's comp, and a more traditional tort-based system. Mind you, a number of "small damages" cases that aren't economically viable under the current system (e.g., negligent misdiagnosis of appendicitis resulting in a rupture) might become viable under such a reform, but damage awards for such claims should be small. I'm not convinced that such a system would turn out to be cheaper, but it should turn out to be a lot more fair and a lot more efficient than a pure tort-based system.

In short, the study Kinsley indirectly relies upon suggests that we would get minimal savings from reforms directed at "frivolous" cases, but that the greater sin of the current system is that an even greater number of actual malpractice victims end up with no recovery. That is, if you were to somehow make the authors' wishes come true, and the system were made more accurate, you would end up increasing the cost of the system due to the appropriate grant of compensation to claimants who are wrongly denied recovery.

I don't think Kinsley's a stupid man. But given the magnitude of his errors on this subject, he should perhaps reflect on whether he should limit his writings to subjects he actually understands.

Healthcare "Rationing"

Michael Kinsley shares his views on healthcare and health insurance, opining,

Here is a handy-dandy way to determine whether the failure to order some exam or treatment constitutes rationing: If the patient were the president, would he get it? If he'd get it and you wouldn't, it's rationing.

Seriously, could he propose a less useful measure? Surprise! Every health insurance plan in the nation, from the worst to the best, is "rationing" because the President gets the undivided attention of Bethesda Naval Hospital when he gets, you know, an unexplained rash... or possibly even a splinter (there's a lot of old furniture, er, antiques, in the White House - it could happen). Certainly when he chokes on a pretzel or has a colon polyp. (And don't get me started on the "rationing" of fully staffed mansions, private jets, private helicopters, luxury retreats....)

Next, is Kinsley going to tell us that it's "rationing" that wealthy people can pay thousands of dollars to have a multi-day, multi-disciplinary physical examination at the Mayo Clinic, while most people get at best half an hour in the office of their family doctor? Sure, we can call it rationing, but even before considering costs there aren't enough doctors in the world to provide that level of care to every person in the U.S. And there's not a health insurance policy in the world that doesn't "ration" - by Kinsley's standard, severely ration.

It may seem absurd to worry about whether wealthy or well-insured people get every last test and exotic or speculative treatment when millions of Americans have no health insurance and millions more have gaping holes in their coverage. But the well-insured happen to include virtually all the people making the key decisions about health-care reform - members of Congress and their staffs, the White House staff, Washington journalists, and so on. These people's fears that they would lose the right to "choose my own doctor" (code for getting treatment with all the bells and whistles) helped kill Hillary Clinton's attempt to reform health care in the early 1990s. Fear of rationing could kill Obamacare for the same reason.

Let's assume its historical accuracy - that Kinsley and his friends got worked up at the notion that Hillary Clinton's healthcare reforms would have narrowed their coverage under their gold plated health insurance plans. Is Kinsley telling us that their narrow self-interest caused this nation's political and media leaders to lie to the public - to say, "You won't get to choose your own doctor," when they actually meant, "I would have to pay for more of my own healthcare"? And we're getting another round of deliberate lies from the same people, under the guise of "rationing"?

Another point Kinsley should make is that "rationing" under Obama's plan would only occur within the context of those who choose the public plan. You think you can do better under a private insurance plan? You want to buy supplemental insurance to cover things the public plan doesn't include? You'll have that right. So again, how is this "rationing" any different from the current system and how would it be worse to get additional choices?

Torture's Okay When We Do It

Quite a few justifications of torture....

Condoleeza Rice: With all due respect, we didn't torture Germans because, although WWII posed an obvious existential threat to our nation and our way of life, the Germans didn't attack us on our homeland... just repeatedly, in our territorial waters. Japan? No, with all due respect, I don't see how Japan would be relevant to my argument. Oh, and we didn't torture this time, either. Wait, you say we historically prosecuted people for water boarding and called it torture? Well, with all due respect... that's different!

Charles Krauthammer: Torture's immoral. Except for ticking time bombs. Or to torture "a high-value enemy" to save lives. Even if we don't know if the person is "high value" or has information that will save lives until after we torture them. (Did I mention, I love watcing "24"?)

Michael Gerson: I don't like the word "torture", and as a deeply moral person I find it better to define anything "they" do as torture and anything we do as "harsh interrogations". And let's start out by setting the record straight - while everybody else in the White House knew what was going on, and newspapers like the New York Times were publishing stories about water boarding, I had absolutely no clue that any of this was going on. I used to think harsh interrogations were bad, then I found out that other people spent time thinking about it. If you read the memos penned three years, eight months after 9/11, you'll see that people were still wrestling with how to justify harsh interrogations, and why what we were doing was different from, er, harsher interrogations. Compare and contrast WWII, where during the three years, eight months between our entry into the war and our declaration of victory over Japan, we did not spend three years, ten months thinking about anything we did, no matter how morally dubious. Oh, and my grasp of history is about as good as Condoleezza Rice's (who, again, I didn't talk to about harsh interrogations), so I think nobody lost any sleep over the creation and use of the atomic bomb, and nobody worried about the morality or criminality of fire bombing Dresden or targets in Japan. Besides, these are tough decisions, so we should accept anything a Republican President does as the pursuit of moral good in a complicated world.

Pat Buchanan: Torture's perfectly moral when we do it because we can assume that anybody we would torture is evil and doctors sometimes cause pain when they try to save a patient's life. Further, Taken, about a dad who tortures a kidnapper to free his daughter from white slavers, was a more popular movie than Rendition, a movie based on fact... (aren't facts a drag?) Further, if we don't torture people we won't prevent attacks that could have been prevented by torture, and no argument's better than a circular one.

Not that these examples from the "con" side are any better....

Michael Kinsley: If you voted in the 2004 election, unless the sole reason for your voting against Bush was torture, you're as guilty as the torturers themselves.

Richard Cohen: "Moral authority" is a worthless concept because terrorists think they have it, also (so imagine what I have to say about both teams saying a prayer for victory, get this, to the same God before a football game). Besides, lots of people have told me that torture works and, even though it didn't occur to me to ask what it means for torture to "work", they can't possibly all be wrong or lying - and I think it worked, once, to threaten somebody with being tortured by Mossad, even though prior torture of the same person hadn't worked. But still we shouldn't torture people because it it degrades us and runs counter to our national values, so we should ban it even though that doesn't make us safer. Also, the torture memos remind me of something a Nazi would write - and before you can torture anyone, you must first torture the law. But it's wrong and undermines the CIA to talk about prosecuting people who tortured the in order to authorized torture of people, rather than doing something to boost their morale like comparing them to Nazis.

Lies, Lies and More Lies

From around the web:

• Dan Larison wonders why the conservative media is unwilling to call out lies by the McCain Campaign - Tell the truth? "Why do that when lying works so well for them"

• James Fallows asks whether the media will treat obviously false claims by Palin in the same manner as they treated obviously false claims by Hillary Clinton.

• Michael Kinsley asks, Why do Lies Prevail - the primary "reason is that no one - not the media, not the campaign professionals, not the voters - cares enough about lying."

The "Experience" Argument

Michael Kinsley opines,

The whole "experience" debate is silly. Under our system of government, there is only one job that gives you both executive and foreign policy experience, and that's the one McCain and Obama are running for. Nevertheless, it's a hardy perennial: If your opponent is a governor, you accuse him of lacking foreign policy experience. If he or she is a member of Congress, you say this person has never run anything. And if, by chance, your opponent has done both, you say that he or she is a "professional politician." When Republicans aren't complaining about someone's lack of experience, they are calling for term limits.

That's why the important point about Palin's lack of experience isn't about Palin. It's about McCain. And the question is not how his choice of Palin might complicate his ability to use the "experience" issue or whether he will have to drop experience as an issue. It's not about the proper role of experience as an issue. It's not about experience at all. It's about honesty. The question should be whether McCain - and all the other Republicans who have been going on for months about Obama's dangerous lack of foreign policy experience - ever meant a word of it. And the answer is apparently not. Many conservative pundits woke up this morning fully prepared to harp on Obama's alleged lack of experience for months more. Now they face the choice of either executing a Communist-style U-turn ("Experience? Feh! Who needs it?") or trying to keep a straight face while touting the importance of having been mayor of a town of 9,000 if you later find yourself president of a nation of 300 million.

This is largely correct, but I think that Kinsley is missing something important. Experience leaves a track record, and a candidate's track record can help us understand how the candidate will govern, relate to subordinates and government agencies, and what issues they hold near and dear. Obama has given us plenty of reasons to believe he would be an effective President, but his history leaves us with a weak sense of what he stands for. You may recall a similar candidate from a recent election who exploited the ambiguity in his résumé and ran as a "uniter, not a divider", and who proved to be one of the most divisive presidents in U.S. history. No, I'm not saying that Obama's going to turn out to be another G.W., nor am I saying that the voters who giddily voted for G.W. despite his faint qualifications are more critical in their evaluation of a candidate as a result (even if they should be). But it's a valid issue to raise.

On the other hand there's McCain, whose track record might be reassuring if he weren't so quick to repudiate any portion of it that he believes will interfere with his being elected - and, if necessary for election, to subsequently repudiate his repudiations. If the Republican Party could have rallied behind the John McCain who ran in 2000, I think he would have the potential to win in a walk. The reminted McCain who will say and do absolutely anything to get elected? This reinvented McCain makes me queasy.

How could anyone truly believe that Barack Obama's background and job history are inadequate experience for a president and simultaneously believe that Sarah Palin's background and job history are adequate? It's possible to believe one or the other. But both? Simply not possible.

If we're speaking of pundits then, certainly, Kinsely is right. Those who attacked Obama's qualifications to be President and now laud Palin's are liars. But Palin has another track record, and that's why she was picked - the religious right has good cause to believe that she's a sincere evangelical Christian with rigid, socially conservative views. It was on the basis of that track record, and the expectation that it would be possible to spin her thin political record as that of a reformer and economic conservative, that she was selected.

"I'm Your Lawyer. Here's Exactly What You Want To Hear."

In what seems to be a soft-sell of the Alito nomination, Michael Kinsley argues that his anti-Roe memos should be taken as his providing the President with a legal basis for views the President already held:

The memos gave the appearance of urging the Reagan administration to take a more conservative line on issues such as school prayer and employment discrimination. But White House press secretary Scott McClellan revealed that these were actually Reagan's views already. "I think what those files show is a young White House staffer helping to provide legal analysis in support of the president's agenda, President Reagan's agenda." In other words, Roberts supplied reasons for views Reagan already held. Roberts was just a repairman, fixing views he didn't necessarily own.

If he truly believes that, his piece should be titled "Why lawyers are useless" instead of "Why lawyers are liars". Now I will grant that there has been some real hackery in the Bush II White House, with lawyers presenting the most attenuated arguments to defend the indefensible, but those opinions were meant to provide the Bush II administration with plausible deniability when it was caught breaking the law. "Our lawyers said it was okay." It's something else entirely to suggest that a lawyer writing a memo in relation to existing case law should advocate the desired outcome rather than educating his bosses as to the actual state of the law. Kinsley continues,

When do lawyers become free to have their own agenda and say what they really think? Not when they leave the government and enter private practice. Roberts told the Senate Judiciary Committee that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer."

But there is a big difference between a lawyer's private thoughts and advice to a client, and what a lawyer might do or say when advocating for the client in court. A good lawyer will privately tell the client the state of the law, how to conform to the law, and the risks of trying to skirt a law - including considerations which weigh against what a client wants to do - but in court will present the strongest possible argument on behalf of his client, interpreting the law in the light most favorable to the client. The role of a lawyer who is advising a client is different from that of advocating for the client.

Kinsley reminds me of this lawyer joke:

A businessman was trying to choose a lawyer, but was being very careful about it. He scheduled appointments to interview three lawyers.

At the first lawyer's office, after an initial exchange of pleasantries, the businessman said, "Okay, let's get down to business. I have an important question for you, and I want you to think carefully before answering. How much is two plus two?"

The lawyer raised his eyebrows. "two plus two is four." The businessman thanked him for his time, and proceeded to his next appointment.

The second lawyer, who was also a CPA, seemed a bit more particular than the first lawyer. After an initial discussion, the businessman again announced that he had a very important question, and asked, "How much is two plus two?"

The second lawyer went over to a computer, and entered figures into a spreadsheet. "According to my calculations, two plus two is approximately four." The businessman thanked him for his time, and proceeded to his next appointment.

The third lawyer sat behind a big mahogany desk, and smoked a cigar. He seemed rather self-important as compared to the other two, but at the same time appeared to be much more successful. The businessman again announced, "I would like you to answer a very important question for me, before I decide whether I should use your services. How much is two plus two?"

The lawyer pulled the shades, locked the door to his office, and asked in a hushed voice, "How much do you want it to be?"

Kinsley is essentially arguing that the third type of lawyer is the norm and not the exception. Maybe Alito really does place himself in that third category, in which case Kinsley has convinced me that Alito does not belong on the Supreme Court.

Sure they do....

After presenting a rambling, partisan caricature of the Democratic primary season, Michael Kinsley suggests,

The process the Democrats are putting themselves through resembles John Maynard Keynes's description of the stock market. The game isn't to figure out which stocks are most likely to do well but to figure out which stocks other investors think are most likely to do well. These other investors are thinking of other investors and so on. Keynes thought this helped explain the volatility of stock prices. Your judgment about other people's judgment, let alone other people's judgment about other people's judgment, is less certain and more subject to breezes of false or true insight and information than your judgment about your own judgment.

Something similar may be going on in the Democratic primaries. But the analogy breaks down, because only the Democrats are intent on figuring out what other people want. Republicans know what they want.

Oh, do they?

Let's look at the stereotype -

• Republicans want smaller government, but support a President under whom the government has grown explosively.
• Republicans want fiscal responsibility, but support a President whose fiscal policies are irresponsible and who has no interest in balancing the budget.
• Republicans want a government that stays out of their personal lives, but support a President under whom state intrusions into privacy without legal process or probable cause have reached levels unseen since the revolutionary war, who supports replacing state services with "faith based" services, and who seems to support a constitutional convention to define "marriage". (A constitutional amendment to effect a purely social matter? That's not "conservative" by any measure.)
• Republicans believe in state sovereignty and oppose nation-building, but support a President who initiated two of the grandest nation-building projects ever conceived.
• Republicans want "working men and women" to be able to "keep the money they earn", yet support a President whose tax policy overwhelmingly favors the rich and intentionally ignores the fact that the "Alternative Minimum Tax" will soon claw back the minimal tax relief his administration afforded to the middle class.
• Republicans oppose gun control, but support a President who will renew one of the most senseless pieces of gun control legislation ever conceived (banning certain guns based not on function but because they "look scary") - a measure originally signed into law by his father.
• Republicans believe in free markets, but support a President who imposes a wide range of tariffs and duties to prevent foreign competition.
• Republicans believe in a meritocracy, but support a President whose entire resume can be attributed to his family name and crony capitalism.
• Republicans don't believe in the "welfare state", but support a President who has created the largest new entitlement program since the New Deal, and a Congress which reroutes billions of dollars from "blue states" to subsidize taxpayers in 'red states".

Perhaps Kinsley is arguing that Repubicans are like sheep, blindly following a leader based upon his false "conservative" promises while unable to recognize that they are being led astray. But they know what they want....

I'm a good conservative, a family man. I believe in fiscal responsibility. I'm a uniter not a divider. I will bring a new era of responsibility to American government.... But we must set our priorities, so I'll get to all of that stuff....

As soon as we get back from Mars.

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Tell Me He's Smarter Than This....

In "O'Neill's Vanity Fair", Michael Kinsley sputters,

Speaking of blindsided, howzabout that killer quote describing Bush in Cabinet meetings as being "like a blind man in a roomful of deaf people." O'Neill says this is "the only way I can describe it," and I fear that may be true. It's vivid, and certainly sounds insulting. But what on earth does it mean? According to the New York Times and Los Angeles Times, it means Bush is "disengaged." The Washington Post story began, "President Bush showed little interest in policy discussions in his first two years in the White House, leading Cabinet meetings 'like a blind man in a roomful of deaf people . . . ."

I'm sorry, but how is being uninterested in policy like being a blind man in a roomful of deaf people? Are blind people uninterested in policy? Or, more accurately: Do blind people become less interested in policy when they find themselves in a room with deaf people? Does a blind man surrounded by deaf people talking policy issues think, "Oh, hell. These folks are going to go on and on and on about the problems of deaf people. Who needs that? I've got problems of my own." Is that O'Neill's point? And even if there is something about a roomfull of deaf people that makes a blind man disengage from policy issues, what does this have to do with President Bush and his Cabinet?

Is it truly that difficult for him to figure out? (Does anybody here need an explanation?)

I guess an alternative is that Kinsley thinks his readers are stupid, and hopes to confuse them. Either way, it doesn't say much about Kinsley.

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