Differing Philosophies

The Michigan Supreme Court has, in recent years, been paring back the ability of lower courts to interpret statutes beyond constructing their plain text. Following Scalia's writings, for example, the Michigan Supreme Court has all but eliminated the ability of state trial and appellate courts to interpret statutes to avoid absurd results.

Our Supreme Court has since criticized and substantially limited, if not eviscerated, the "absurd result" rule, agreeing "with Justice Scalia's description of such attempts to divine unexpressed and nontextual legislative intent as 'nothing but an invitation to judicial lawmaking.'" People v McIntire, 461 Mich. 147, 156 n 2; 599 N.W.2d 102 (1999), quoting Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press, 1997), p 21. Thus, whether the plain meaning of a statute may be avoided because its literal application results in an absurdity remains an open question in Michigan.

McGhee v Helsel, 262 Mich App 221, 226; 686 NW2d 6, (2004).

But while Scalia rules the day in Michigan, his philosophies are finding a less receptive audience among his peers. Today in Koons Buick Pontiac GMC, Inc. v. Nigh, the majority rejected the notion that the Court has no role in providing a reasonable interpretation to a carelessly drafted statute, leaving Scalia as a sole dissenter arguing for strict construction divorced from Congressional intent and predecessor statutes.

Some might view this as hair-splitting, with the majority of Justices arguing that where the language is unambiguous, it is inappropriate to correct a drafting error by Congress, but it was nonetheless appropriate to look to extrajudicial sources in the instant case because the statute was ambiguous. Scalia is much more textual in his legal interpretations, statutory or Constitutional - except... well, when he isn't. Like in his preference for the expansion of sovereign immunity, a concept strangely absent from the Constitution. But I guess "that's different". [Insert Emerson Quote Here?]

In any event, should Scalia ever tire of his brethren, I'm sure he can get a job clerking for Chief Justice Corrigan. ;-)

Oh No.... We Must Save The Children

Yesterday, Nicholas Kristof brought us a peculiar editorial in which he argued:

Iraqis are paying a horrendous price for the good intentions of well-meaning conservatives who wanted to liberate them. And now some fuzzy little kittens, who want nothing more from life than lapping milk and having their ears scratched, are seeking a troop withdrawal that would make matters even worse.

Well, not quite. He actually said that it was "some well-meaning liberals", not fuzzy little kittens. But the logic is about the same - some undefined group with no discernible power base is alleged to want something that is not going to happen. And this is a problem because... what? Kristof needed a hook for his columns, and bashing "well-meaning liberals" is easy? (And what would he say of those conservatives who are arguing that we should cut our losses and get out? Well-meaning, or no?)

But the weakness of his analysis doesn't end there. He claims an enormous loss of life among Iraqi civilians as a result of the invasion, arguing,

That's apparently because of insecurity. A doctor in Basra told me last year how physicians and patients alike had had to run for cover when bandits attacked the infectious diseases unit, firing machine guns and throwing hand grenades, so they could steal the air-conditioners. Given those conditions, women are now more likely to give birth at home, so babies and mothers are both more likely to die of "natural" causes.

I haven't read the Lancet article, but let's take Kristof's spin that the deaths are effectively all the result of a security void, and not a direct consequence of warfare. Kristof suggests to us that the solution for a security void is to "stay the course" and... well, at a minimum keep the country from falling apart. Beyond that, Kristof has no apparent notion of what "staying the course" means - he simply predicts a humanitarian disaster with even greater loss of civilian life if we don't stay the proverbial course.

Perhaps Kristof needs to take a harder look at Islamic countries and their internal security situation. There is no question but that prior to the invastion Afghanistan was a failed state, for example, but the Taliban kept order in the streets. (Disagree with its techniques, certainly, but there was order.) That is to say, it is possible that a fragmented Iraq which falls into the hands of various factions of Islamic extremists would be far more secure for the people than the situation we have presently provided. That security would of course come at an enormous price in personal freedom, but if the goal is security police states and totalitarian governments usually have an edge over democracies.

Kristof understandably doesn't want that outcome, but instead of addressing it he pretends it does not exist. I guess, though, that it's easier to present false dichotomies, and criticize an undefined faction of "well-meaning liberals".

George Will Silliness

(George Williness?)

I'm not going to dismiss concerns about political diversity on campus, but it is pretty obvious that certain personality types are drawn to careers in higher education - and the low salaries that go with most professorships. Actually, Will more or less sneers at that notion:

But George Lakoff, a linguistics professor at Berkeley, denies that academic institutions are biased against conservatives. The disparity in hiring, he explains, occurs because conservatives are not as interested as liberals in academic careers. Why does he think liberals are like that? "Unlike conservatives, they believe in working for the public good and social justice." That clears that up.

Will seems to think he's insightful when he writes,

that the "first protocol" of academic society is the "common assumption" -- that, at professional gatherings, all the strangers in the room are liberals.

I wonder if he would write a similarly insipid and whiny column about the overrepresentation of political conservatives at professional gatherings of business executives.

There He Goes Again

I know some people are enamored with Joe Lieberman. I even know of an ostensibly "center left" blog whose proprietors were dreaming a few months ago about a Democratic "McCain/Lieberman" ticket. (Yes - they do seem to qualify as "people unclear on the concept".)

But I've never cared for Lieberman. When he speaks about an issue, his comments usually betray a surprising lack of acumen - he doesn't seem to know the facts, nor does he seem to understand the issues. The alternative explanation is that he does know what he is talking about, but rather than advancing a sensible approach based on fact, logic, and law, he instead panders to the "family values" crowd, railing against immorality in a manner that, for somebody sworn to uphold the Constitution, is reckless and irresponsible.

Case in point: "JFK Reloaded. Lieberman starts with righteous indignation - and surely, if anything is offensive, it is that particular video game. "I hope somebody in a position of authority will review whether this game has gone over the line." But then this:

"I hope somebody in a prosecutor's office will take a look at this," said Sen. Joseph Lieberman, D-Conn., referring to "JFK: Reloaded," a game by the Scottish video-game company Traffic in which players peer through a rifle scope and attempt to re-create Lee Harvey Oswald's assassination of the 35th president.

"You can get arrested for threatening presidents and any behavior that suggests you are contemplating taking violent action against an elected official. The line between this and this 'JFK: Reloaded' game is, in my mind, close," said Lieberman, who has led earlier Senate decency campaigns involving movie, video and music ratings.

So is he that ignorant of the law and Constitution? Or is he engaged in mindless, irresponsible pandering? A little of both? A lot of both?

The Price of Being an Occupying Power

"The most moral army in the world".

Am I, Um, Missing Something?

In the United States, exit polls "showed" us that Kerry was going to win a decisive victory over the incumbent President Bush. The consensus is now that the polls were wrong.

But the same papers which told us that the U.S. polls were wrong are suggesting (or crying) "shenanigans" over election results in the Ukraine, where exit polls suggested that the challenger was going to beat the incumbent.

Oh, wait - I'll bet it is just that with Ukraine's firmly established democratic traditions, and the amount of money and prestige on the line behind their pollster's efforts to presage the election return, it is simply impossible that their pollsters erred. (Counting the votes to determine the victor? How old-fashioned.)

I'm not saying that election returns in the Ukraine are untainted. Heck, even in this country we suffer the taint of such election peculiarities as the "vote whores" of Texas. But I'm not one to hang my hat on exit poll results, here or there.

Applying Scientific Methodology To Security Screenings

Imagine that the police show up at your house, and insist upon searching your closets. They explain that once a year or so, somewhere in the United States, they catch a murderer hiding in a closet, and thus they have to do closet screenings "just in case". They advise you of safety regulations which may cause them to seize certain items as a result of their search - they'll be taking your wire coathangers, for example. And if you argue, they'll probably search a bit more intensively, maybe also searching your crawlspace and attic.

Obviously, the police aren't on their way to randomly search a closet near you. The "general warrant" which allowed the British authorities to search a neighborhood on generalized suspicion was one of the abuses which led to our constitutional protections against unreasonable searches and seizures. And such searching would be regarded, quite correctly, as an extraordinary waste of time and resources.

Except at airports. Perhaps our government can be made to realize that searching people who have no conceivable relation to airborne crime or terrorism is, similarly, a waste of time and resources. Perhaps there are even methods which could be applied to winnow down the list of suspects from "everybody" down to, well, people who might intend harm to their fellow air travelers. But as long as our transporation security agents feel unduly threatened by the likes of Patti LuPone and Cat Stevens, I wouldn't count on it.

Applying Scientific Methodology to Educational Technique

In a recent discussion of the No Child Left Behind Act, it was suggested that busting the "educational cartel" would be a step forward in public education. It was also suggested that to question the efficacy of charter schools or whether present voucher proposals are sensible is tantamount to "scrapping the whole idea" behind such projects. But the real problem goes much deeper than proponents of competition realize. Or perhaps they recognize the problems but aren't willing to adequately address them, or have other motives (such as obtaining public money for parochial school tuition) that they deem more important than actual improvement in our nation's system of education.

What is most striking about K-12 education is that, save for a constant parade of gimmicks, it remains pretty much what it has always been. Put kids into a building, shuffle them off to a classroom, sit them behind desks, lecture, and test. Granted, schools have added labs and hands-on components to many classes to provide something beyond the lecture, but if you remember your school days you probably remember some horrible, ineffective laboratory work. I recall chemistry labs which may as well have been cooking classes - follow the recipe and get graded on how well it turns out, whether or not you learn anything. And, as much as Canada was trying to encourage bilingualism, the language "lab" component that was grafted on to the ineffective classroom instruction was a waste of time.

Language instruction fascinates me, because it is typically done badly in classrooms, with the only alternative people seem willing to recognize being language immersion courses. Yet for decades there have been alternative programs, including high-cost programs offered to business clients and government programs offered to diplomats, which promise a working vocabulary and functional conversational proficiency through short-term training. That is, they promise to deliver in the short-term a result that most schools, public and private, can't deliver despite forcing children to suffer through year after year of classroom instruction.

And no small part of the problem is that languages are typically taught in about as unnatural a manner as teachers can concoct - memorize vocabulary lists and verb conjugations, delay teaching complicated verb forms, provide a unduly limited vocabulary, stage stilted 'conversations' based on that limited vocabulary, and otherwise work to ensure that even after several years of study a diligent student will still need a dictionary to struggle through a children's story in the foreign language under study.

It isn't that it would be hard to come up with a better way to teach language. As previously suggested, alternative methods already exist. They simply aren't being used in most classrooms, whether because teachers (and teaching schools) are too used to existing methods, because it would be "too expensive" to switch to new methods, or possibly because nobody even thinks to attempt it.

And don't get me started on history instruction - the rote memorization of names, dates, places and events. It is easy to find children who "hate history" - but for the most part, they haven't had any opportunity to learn history. As those who love history and absorb history books know, history is full of wonderful and fascinating stories and narratives. Unfortunately, it is hard to fit in those stories - which might give rise to an actual learning experience - because those darn kids have such a hard time absorbing the dry, sterilized list of names, dates, places and events that most school teachers believe constitute "history", and which are going to be the central focus of "the test".

How about something as basic as reading? There are countless products pitched at schools to help children "learn to read". There are noisome battles between "whole language" advocates and "phonics" proponents, each of whom have their own gimmicks, products, and ideologies. But why is the focus more on the marketing of ideas and products than on the scientific basis for those ideas and products? It is possible to test products and teaching techniques, and to get quantifiable results in relatively short order. But, even when people try to apply scientific methodology to reading and language instruction, who is listening?

Most private schools follow teaching models very similar to those offered in public school. Those schools and school models which come up with innovative teaching or classroom technique rarely see their techniques picked up by other schools, public or private. Even when a good idea is adopted, it is often simplified, modified, or misinterpreted from the outset - without respect to how the original idea worked - and its remains may be subject to further misapplication by a classroom teacher.

It seemed like charter schools would offer an opportunity for true innovation. Freed from the public school bureaucracy, a charter school should be able to innovate, and should be able to test and apply educational models and techniques which offer more than the status quo. But to date, even when charter schools are attached to universities or teachers' colleges, that doesn't seem to happen. Gifted education? Across the board the response seems to be "enrichment" - which is a nice-sounding word but usually translates into "give the smart kid some busy work" - or accelerating the curriculum.

You would almost think that, as long as their kids are scoring reasonably well on "standardized tests" and bring home acceptable "grades", most parents, even when they are paying for their kids' school tuition, are sufficiently happy to regard their school as a convenient babysitting service. Because most parents express satisfaction with their child's school, yet that's largely what they get.

A Strange World

In a world where it is assumed that medical costs will always go up at a rate which significantly (if not vastly) exceeds inflation, one would think that a new, non-invasive and highly accurate test which can be administered at a fraction of the cost of its predecessor would be, well, good news. So the announcement of a new form of CT scan that is likely to replace angiograms seems promising:

The scans can largely replace diagnostic angiograms, the expensive, onerous way of looking for blockages in arteries, and can make diagnosis so easy that doctors would not hesitate to use them. They are expected to cost about $700, compared with about $4,000 for an angiogram.

According to Epix Pharmaceuticals, this new technology"may provide an alternative for the 4.5 million diagnostic X-ray angiograms performed in the United States annually at a total cost to the healthcare system of over $9 billion.". But it seems that some doctors and industry analysts can find a dark cloud for every silver lining. As the New York Times editorializes,

From a patient's viewpoint, the heart scans have a lot to recommend them. They take seconds to conduct and require no recovery time, whereas an angiogram takes 45 minutes and requires hours of recuperation. The scans can also spot danger spots in the arteries that might be missed by an angiogram. The downsides are that heart scans subject a patient to far more radiation than most diagnostic procedures, and they are quite apt to spot things that are of no medical consequence but that one might feel compelled to do something about. In the end, the patient might undergo additional tests and procedures - all of them carrying some degree of risk - to eliminate a potential problem that did not really need to be fixed.

At first blush, it will take a lot of overuse of this new technology before we're losing money on the deal. Epix suggests a savings of $9 billion per year - but using the Times' figures, we're looking at savings approaching $15 billion per year. Those figures translate into somewhere between 12 million and 21 million new prescriptions for cardiac diagnostic imaging before we're losing money. (That's four to six times the rate at which angiograms are presently ordered.) Whatever skepticism is coming from within the industry, let's hope doctors are more responsible than that, in wildly prescribing this new test, or (as is implicit in some of the "doom and gloom" cost forecasts) in overprescribing it to pay for expensive new equipment.

But one might also note that this highlights something that few analysts have dared to interject into debates over the cost of medical care. It is possible for costs to come down - way down - for certain procedures. And it is possible that the ultimate result will be a vast cost savings over present diagnostic procedures, as imaging tests become less invasive and more accurate, and as methodological scientific study of the results of new imaging tests provide a science-based rationale for determining which medical treatments are most effective and when additional intervention is required.

I Know - We'll Poll The Soldiers, And....

Apparently not wishing to be outdone in the idiotorial business by Anne Applebaum's amazing entry on electronic voting, Tom Friedman shares his, um, insight into when it will be time to give up on Iraq:

Readers regularly ask me when I will throw in the towel on Iraq. I will be guided by the U.S. Army and Marine grunts on the ground. They see Iraq close up. Most of those you talk to are so uncynical - so convinced that we are doing good and doing right, even though they too are unsure it will work. When a majority of those grunts tell us that they are no longer willing to risk their lives to go out and fix the sewers in Sadr City or teach democracy at a local school, then you can stick a fork in this one. But so far, we ain't there yet. The troops are still pretty positive.

Well, let's hope that the troops are positive. The suicide rate among troops in Iraq is already pretty alarming, and we don't need any more incidents of "fragging". Troop morale is unquestionably important.

But in his zeal to support the war, he comes up with a notion that even his optimistic troops might find absurd - the notion of quitting a war in the event of poor morale among the soliders, or a large scale mutiny. Perhaps one of them can jot Mr. Friedman a note explaining that the military is not a democracy, and (within that context) why officers carry sidearms instead of something that would be, say, more useful for shooting enemy soldiers. Someone might also wish to remind Mr. Friedman that the zeal with which troops take to a cause is not always a good measure of the rightness of the cause and, even though the test may seem to work in the context of this military action he supports, he may find himself unwilling to apply the same standard to myriad other conflicts, past, present and future.

Like A Phoenix From The... Okay, Not Quite, But....

The CJR Campaign Desk site, which provided some pretty good analysis of media coverage durign the Presidential election, has announced its new name and role:

Welcome to CJR Daily -- emphasis on the word "daily" -- an outgrowth of Campaign Desk. Our intent is to critique press performance in real time, day in and day out, and along the way to examine the forces -- political, economic, technological, social, legal -- that affect that performance.

Let's hope, then, that they can keep up their energy and enthusiasm ad the CJR Daily.

She's Kidding, Right?

Anne Applebaum today suggests that it is okay for us to vote on ATM-style voting machines with no paper record or audit trail, because she often chooses not to take a paper receipt when she withdraws cash from her bank's ATM machine, and even purchases items or pays bills online with her credit card. Anne seems to be confusing the absense of a paper receipt with the absence of an audit trail. The financial transactions she describes are carefully tracked by the vendor, by her bank, by her credit card companies, and by any other affected financial and commercial institutions, each of which have systems in place to ensure that transactions are not lost.

If her point were that it is possible to implement a pretty sound system of verification without issuing paper receipts, there might be some merit to her column. But as it is, she doesn't even understand the issues.

Medical Malpractice Mythology

Apparently things work like this at the Washington Post. They find an interesting topic, find a person with good qualifications to author a piece on that subject, then... run the resulting work on the editorial page so that they don't have to fact-check. Today, they present a magnificent example of distortion through an editorial on medical malpractice, by William R. Brody, president of Johns Hopkins University.

Brody announces that there are five myths of medical malpractice, and sets about advancing various myths in the guise of "rebutting" his contrivances. His first "myth" is that "The medical malpractice crisis is someone else's problem, not mine." to which he replies by asserting that people are losing access to medical care and "doctors are leaving practice in the face of unaffordable insurance premiums", or otherwise cutting back on services. He does not explain how doctors can increase their incomes, even taking malpractice insurance into consideration, by quitting their highly compensated profession. Nor does he explain in what, if any, specialty a medical professional can see a significant drop in malpractice premiums by "cutting back on the services they offer". That is, without so dramatically changing their practices they effectively qualify for insurance under a different specialty or subspecialty.

Further, where is the evidence that doctors are fleeing the profession? Florida had more licensed doctors in 2003 than in 1998, with an increase in new applications, despite a supposed "malpractice crisis". This year the chairman of the Pennsylvania Medical Society was forced to admit that he made up his three-year claim that doctors were leaving the state in large numbers, when confronted with documentation of an 800 doctor gain. In 2003, the GAO documented that in 2001 there were more doctors in Washington, in both rural and urban settings, than there had been ten years earlier. Ohio had a five percent increase in medical licenses issued between 1998 and 2003. Illinois showed a 30% increase in doctors between 1994 and 2004. North Carolina documented an increase in OB/GYN's from 843 in 1997 to 937 in 2001, despite the fact that the specialty has borne some of the highest premium increases of any field of medicine.

Other than in insurance industry and lobbyist rhetoric, where is this supposed "flight" from the profession actually manifested?

Brody also suggests that malpractice insurance costs may make medical care unaffordable. That claim may sound like a bad joke to anybody who is uninsured or underinsured, as medical care is already unaffordable. And the adequately insured aren't particularly concerned, because... well, they have insurance to pay the bill. As Brody later addresses the cost of "malpractice" under a later myth, I'll leave this issue for the moment.

Brody's second "myth" is "We need to preserve the current legal system to guarantee a fair hearing and provide compensation for patients harmed by the health care system.". Brody argues that the present system is unfair and is "essentially a lottery" - a claim doctors seem inclined to make. To back up this claim, Brody first misrepresents the findings of a 1991 study which "found that nine out of 10 victims of disability-causing malpractice go uncompensated The study actually found that only approximately 1 in 8 malpractice victims, as defined by the study protocol, pursue claims against the medical professionals who harmed them.

By contrast, our estimate of the statewide ratio of adverse events caused by negligence (27,179) to malpractice claims (3570) is 7.6 to 1. This relative frequency overstates the chances that a negligent adverse event will produce a claim, however, because most of the events for which claims were made in the sample did not meet our definition of adverse events due to negligence.

CONCLUSIONS. Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.

I agree completely with the study's authors that the malpractice system is a poor tool for identifying substandard practice, and obviously a great many patients forego any effort to receive compensation for their injuries. But to claim that because only a small number of people who are harmed by malpractice choose to sue, the system is a lottery, is a rather shameful distortion of the study's purpose and findings. If anything, the study is good news for doctors - it suggests that the vast majority of patients understand their humanity and forgive their errors.

Further, the logical consequence of Brody's misrepresentation is that the system would be more "fair" if every patient harmed by malpractice filed suit. That would mean a literally exponential increase in malpractice litigation. And I think he knows that - but was simply anticipating that nobody would look behind his numbers.

Brody's next claim takes on the other side of the coin, claiming, "a recent study by Harvard University researchers found that 80 percent of malpractice claims were filed against doctors who had made no error whatever." This appears to be a reference to the 1991 Harvard Study which, consistent with the New England Journal of Medicine study, found that in 1984 only one in eight bona fide victims of malpractice sought legal remedy. (This is recent?)The study presents some issues of methodology and definition which weaken some of the arguments made from its findings, both for and against "malpractice reform". Brody, though, probably should have mentioned this finding: The tort system "appears to do a surprisingly accurate job of sifting out the valid from the invalid claims (in the latter cases paying the claimants nothing or just a small amount of damages)."

Brody's last point is similarly dishonest - he claims on the basis of recent medical findings that certain past litigation over cerebral palsy is called into question. It is a good thing to revisit old science, and certainly there have been vast improvements in medicine and medical care as a result of a better understanding of disease and its causes. However, you can only apply that science going forward. Brody appears to intend to mislead his readers into thinking that juries relied on bad science, rather than the best available science, in deciding cerebral palsy cases - and that simply isn't true. Don't get me wrong - there is plenty of room for improvement in the litigation of "bad baby" cases - but Brody's approach to the subject is fundamentally (and in my opinion intentionally) misleading.

Brody's third "myth" is that "The malpractice system is necessary to punish and remove incompetent health care providers." I'm not sure who is supposedly arguing this "myth" - the malpractice system is meant to compensate victims of malpractice. Discipline and removal of incompetent physicians is an entirely separate matter, handled by hospitals, licensing boards, and peer review panels. And on this subject, Brody's argument is wacky:

Unfortunately, the system that rarely provides just compensation for patients also perversely protects doctors who need to be removed from practice, by enabling them to sue other physicians who might step forward to question their competence. This undoubtedly has a chilling effect on whistle-blowing, and those who regulate doctors are often reluctant to suspend or revoke licenses without expert medical testimony.

He's, in my opinion quite deliberately, conflating medical malpractice litigation with lawsuits over defamation. While both are forms of tort litigation, from a lawyer's perspective there is a world of difference between litigating a defamation claim and a claim for professional negligence. Lawyers are reluctant to take defamation cases, as they tend to be difficult to prove and tend to result in small damages awards. Defendants cannot be sued over their opinions, and truth is an absolute defense to a defamation suit.

There is no rash of absurd or frivolous defamation cases by doctors against peer review panels - and, plainly, none that the tort reform lobbyists or the author of the editorial are willing or able to present. To the extent that a peer review panel smears the reputation of an innocent doctor, or abuses its position in order to exclude a competitor from practice, shouldn't there be legal recourse for the injured doctor? If not, why not?

Brody continues with the half-truth, "Nor does the current liability system provide a way to make health care safer." In a purely literal sense, that's true. But in practice, litigation has resulted in dramatic changes in the administration of health care, and significant improvements in patient safety. Anesthesiology used to be very much a "hit or miss" practice, with a very high level of injury and fatality particularly with general anesthesia. Following a wave of lawsuits, the science of that profession improved dramatically, with malpractice and maloccurrence dropping dramatically.

Brody goes on to claim,

What we need is a system that allows health care providers to work together to study errors and put practical improvements in place to prevent recurrences. The current system discourages doctors from talking about system failures for fear of being sued.

The "system" he appears to be describing is called "peer review", where doctors examine incidents of maloccurrence behind closed doors and make findings which are kept secret from the patients, their families, and the courts. What more does he want, in that respect? In terms of open discussion to improve patient safety, contrary to Brody's arguments, that is also occurring at a growing number of hospitals - and I haven't heard anything to suggest that the discussions have increased litigation, although there have been significant improvements in patient safety (e.g., with Ventilator-Associated Pneumonia).

Brody continues by arguing his fourth myth, "Malpractice costs are not a big deal -- they amount to less than 2 percent of total health care costs.". Brody correctly notes that two percent of a $1.66 trillion system is a lot of money. However, for obvious reasons, he doesn't return to his earlier claim that only about 10% of malpractice victims are compensated - given that earlier claim, shouldn't Brody be exceptionally pleased that the cost of malpractice is not ten times higher?

Also, Brody doesn't mention that approximately 10 to 20% of every health care dollar goes to... waste. As Physicians for a National Health Program noted,

Jobs with Justice will release a report on Oct. 7 showing that approximately $245 billion is wasted on private insurance red tape and protecting drug company super-profits each year. The study concludes that by providing insurance more efficiently and making drug companies sell in a more competitive market, the savings could be used to provide secure, affordable health care for all.

While I understand that medical malpractice is a personal issue for doctors, while waste is not, if a purported expert on the subject is going to make an economic argument that "2% of health care costs is a lot of money", it is not unreasonable to expect that the professional might put it into context by noting that it is far from the most significant area of potential cost savings.

Additionally, Brody presents no evidence that the figure is too high. (His evidence, as previously noted, is that the figure is actually too low.) He might as well be arguing that new cars cost too much on the basis of the percentage of an average household's income that goes to pay for a car - the fact that something is costly does not of itself mean that the cost is too high. And while I grant that it makes sense to work to lower the cost of something that is costly, it seems that the hundreds of billions presently going to pure waste would be an easier target for prompt and effective reform.

Brody next introduces the subject of "defensive medicine", claiming that if you go to a hospital with a headache " You are as likely to get a CAT scan as a couple of aspirin". I certainly hope that the standard of care at Johns Hopkins is higher than its President just suggested. However, it should be noted that the cost of "defensive medicine" is borne by the patient (or the patient's insurance company), and that if Brody's specific claim is true it is exceptionally profitable for his hospital and its radiology department. And while Brody claims "The added costs of defensive medicine are estimated at $50 billion to $100 billion per year", he provides no source for that claim, nor any explanation as to how the estimate was made.

If we turn to Harvard studies, as Brody did, we find that in 1990 a study by the Harvard University School of Public Health "did not find a strong relationship between the threat of litigation and medical costs". Or, more recently, a 1999 study from the Journal of Health Economics on the cost of Caesarean sections in states with or without damages caps, found "cost savings" of only 0.3% - and this in one of the areas ballyhooed by "tort reformers" as a centerpiece of defensive medical practice.

The study to which Brody apparently means to allude is the Kessler-McClellan study, a 1996 reporty by two Stanford economists. The General Accounting Office has found that the Kessler-McClellan study cannot be extrapolated in the manner chosen by Brody:

Because this study was focused on only one condition and on a hospital setting, it cannot be extrapolated to the larger practice of medicine. Given the limited evidence, reliable cost savings estimates cannot be developed.

This January, the Congressional Budget Office agreed:

When CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts.

Brody could, of course, demand a systematic study of "defensive medicine", its costs, and how savings might be achieved. But as his point is actually political, not economic, he instead prefers to make what he cannot resonable believe to be an accurate economic projection.

Brody's last "myth" is that "The current malpractice insurance system is in crisis because insurance companies are trying to cover losses from unwise financial investments made during the dot-com boom." His response to this is to argue that there has been an increase in the median malpractice award granted by juries between 1995 and 2000, and that there has also been an increase in the median settlement. That, of course, is fasinating - but in no way supports his argument. It is possible for the median award or settlement to rise for a large number of reasons, even as the overall cost of malpractice drops.

The best source of information on malpractice costs would come directly from insurance companies - but they are loathe to reveal it. So claims of increase in the median settlement or verdict come instead from informal sources, such as the reports of Jury Verdict Research, Inc., despite the disclaimer by JVR that its figures should not be used for public policy purposes. JVR, for example, makes no claim that its reports include all jury verdicts, estimating that they cover about 60% of jury verdicts. JVR also ignores all verdicts which return no damages award, verdicts reduced by judges, and verdicts overturned on appeal. It does not obtain its data in a methodological manner, and does not consider post-verdict settlement figures. JVR also makes no effort to distinguish between physician liability and hospital liability.

On those rare occasions when actual insurance figures are made available, as was recently the case in New Jersey, Massachusetts, Mississippi and Missouri, those actual figures revealed, in the words of an insurance industry executive, "Severity has not gone up, and in fact, it has gone down a little". Additionally, despite population growth, data from the National Association of Insurance Commissioners (NAIC) demonstrates a four percent reduction in medical malpractice lawsuits between 1995 and 2000.

So Brody presents flawed "median" figures, a tactic which suggests that "average" and "overall" figures don't support his claim. He doesn't present industry figures which show a decline both in damage awards and the frequency of malpractice litigation. And again he skips merrily past his earlier argument that 90% of malpractice victims go uncompensated - something that, if remedied, would escalate the cost of malpractice far beyond the increases in "median" verdict and settlement he claims.

Near the end of Brody's missive, there is a small truth: "A few new caps on liability costs aren't going to solve the problem.". For anybody interested in justice, caps are anathematic. Surely not even Brody would argue that it would increase fairness for the 90% of malpractice victims he believes to go uncompensated, for an additional group of severely injured malpractice victims to be grossly undercompensated as a result of arbitrary damages caps. Further, there is little evidence to suggest that caps will have any appreciable impact on the cost of malpractice insurance.

There is also something incredibly disingenuous in Brody's complaint that too much of a typical malpractice award is eaten up by attorney fees and costs. Doctors lobbies and the insurance industry have worked extremely hard to drive up the cost and burden of litigating malpractice cases - this is the inexorable result of their prior tort reform "victories".

Yes, it is possible to look at reform in a more global manner, and to try to work for a system that maximizes justice for both doctors and for patients injured by preventable medical error. But, given this "fast and loose" play with the facts, I am not optimistic that people like Brody are sincerely interested in achieving such a system.

But These Children Are Supposed To Be Left Behind

Amazing. Apparently some educators believe that "No Child Left Behind" is supposed to work like this: A school is declared "failing", so parents of children with substandard test performance transfer their kids to other schools, the better performing children stay behind, and the school performance magically "rises" without a lick of effort.

The legislation is intended to give struggling students the chance to move from high-poverty, low-performing schools, but Fairfax school officials have found that the students who take the transfers generally aren't the ones who need extra help.

Instead, they are like Umaid: higher-scoring students from middle-class homes. The trend, evident in suburban school districts nationwide, means that the receiving schools don't have to augment their remedial programs or worry about test scores dropping. It also means that resources spent on transfer students aren't going to the students who need them most, some educators said.

Yup. That's right. Smart kids don't need resources, and can do just fine in crappy schools. To his credit, a spokesman for Rep. George Miller (D-Calif.), one of the principal authors of the legislation, expressed that "the law also envisions times when successful students will transfer."

And this gets to a big part of the problem - schools can't fix what is going on at home. We as a society seem to think that a school should accomplish over the course of a few hours per day, in an ever-shrinking school year, what many parents can't be bothered to do for themselves. Why is it a surprise that the parents of higher-achieving kids are more attuned to their children's needs, and are more willing to take advantage of alternative educational opportunities when their children's schools are declared "failing"? That should have been expected - and it certainly should not be distorted into a problem.

More Red, Blue and Purple America

Maps with commentary from Michael Gastner, Cosma Shalizi, and Mark Newman at the University of Michigan.

The Demise of Democracy

Today, David Broder takes on the issue of redistricting - the creation of "safe districts" where the incumbent often runs unopposed, describing the account of a Florida resident.

"I pointed out to an election official at our polling place that there was no House race on the ballot, even though congressmen and women were up every two years. She immediately called the Volusia County supervisor of elections for an explanation.

"While she was on the phone . . . I was informed that my congressman, John Mica, was unopposed. I said, 'I knew that, but shouldn't his name be on the ballot, with a line below it for a write-in candidate?' That seemed traditional to me. I asked whether Mica didn't need to get at least one registered vote somewhere so he could be returned to Washington as an 'elected official' to serve another two years. The answer came back over the phone that Mica had been 'automatically reinstated in Washington.'

Last year, the Supreme Court came pretty close to declaring redistricting to be a "political issue", not ordinarily subject to judicial review. The Court was ostensibly frustrated with the fact that its prior decisions of the subject had not proved to create workable standards for the lower courts, and the growing minority argued that (absent patent illegality, such as redistricting with a racially discriminatory intention) the issue belongs in the political arena, not the courts.

Of course, as the Florida case detailed above indicates, and as the Republicans demonstrated in Texas, if you leave this to the politicians, they will do their utmost to skew the system away from democracy. (It is my cynical belief that, now that the Texas model has created a precedent, absent a legal declaration of its unconstitutionality that model will be followed by both parties in the future. But then, isn't it easier for all of us when our politicians are "automatically reinstated", and we don't have to be bothered with those unseemly elections, challengers at the polls, and recounts?)

Fascism or Puritanism?

In "The Puritanism of the Rich", George Monbiot challenges the notion that Bush embraces "soft fascism" (or any other sort of fascism), suggesting that Bush instead represents puritanism.

Puritanism was primarily the religion of the new commercial classes. It attracted traders, money lenders, bankers and industrialists. Calvin had given them what the old order could not: a theological justification of commerce. Capitalism, in his teachings, was not unchristian, but could be used for the glorification of God. From his doctrine of individual purification, the late Puritans forged a new theology.

At its heart was an "idealisation of personal responsibility" before God. This rapidly turned into "a theory of individual rights" in which "the traditional scheme of Christian virtues was almost exactly reversed". By the mid-17th century, most English Puritans saw in poverty "not a misfortune to be pitied and relieved, but a moral failing to be condemned, and in riches, not an object of suspicion ... but the blessing which rewards the triumph of energy and will".

* * *

Of course, the Puritans differed from Bush's people in that they worshipped production but not consumption. But this is just a different symptom of the same disease. Tawney characterises the late Puritans as people who believed that "the world exists not to be enjoyed, but to be conquered. Only its conqueror deserves the name of Christian."

If we're headed into a new Republican world of "Upstairs, Downstairs" or "Manor House, on which side of the staircase do you expect to find yourself?

What Bush and Mao Have In Common

According to The Guardian, in an article on China's "one child" policy:

"Liberalism," [Chairman Mao] wrote in his 1937 tract, Combat Liberalism, "stems from petit bourgeois selfishness, it places personal interests first and the interests of the revolution second ..."

Minor Distractions IV

While taking Emma to the hospital for her hearing test (a standard screening), I had to maneuver through some crowded spaces. Emma was in her car seat, as she was sleeping quite soundly and it is ideal that she be sleeping during the hearing test.

Typical male reaction: To not even notice that I was carrying a baby. One man glared at me as he walked in my direction, as if I was obstructing his path with a large suitcase rather than carrying a baby. (And I wasn't even blocking his path - he just wanted to pass on the right, where Emma was, as opposed to the left.)

Typical female reaction: Broad smile.

Red, Blue, and Purple America

What are purple mountain majesties, anyway, if not a symbol of America? Some fascinating maps of the red, blue and purple that constitutes America from lies.com.