P.L.A. - A Journal of Politics, Law and Autism

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Saturday, January 18, 2003
The Damages Cap

President Bush went to the battleground state of Pennsylvania yesterday to announce his proposed tort reform initiative for medical malpractice suits. The core of the proposal is a $250,000 cap on the recovery of non-economic damages in medical malpractice cases.

The purpose of the proposal is to lower the premiums charged for medical malpractice insurance coverage. The Bloviator suggests that damage caps are effective for lowering premium rates.

Why was the cap set at $250,000?

Juries are asked to perform a difficult task. When a person has been harmed by the negligence of another, we ask the jury to compensate the injured party for the pain and suffering caused by the negligence.

It is beyond dispute that pain and suffering is a real, actual, legitimate loss. The hard question is how much money is required to compensate for a given amount of pain and suffering. There is no scale that actually balances pain on one side of the scale and money on the other side. The Bush administration suggests that a lifetime of pain and suffering result in compensation of a maximum of $250,000.

Perhaps we can put that amount into perspective by comparing it with other values within our society.

In 1999, Ken Lay dispatched an empty Enron jet to France to fetch his daughter Robin home from Nice. The cost of that flight was $125,000, or one-half of what the Bush administration considers to be the value of a lifetime of pain and suffering.

The Bush administration’s latest tax cut proposal would have reduced Dick Cheney’s taxes by $220,000 in the last year he worked at Halliburton. That tax relief is approximately 90% of what the Bush administration believes to be the damages for a lifetime of pain and suffering.

Invested in 10-year Treasury Notes currently yielding 4.02%, $250,000 could provide a yearly income of $10,050. A full-time minimum wage earner makes approximately $11,850 per year.

Last year, Braves pitcher Gregg Maddox earned more than $13,000,000 and pitched almost 200 innings. Mr. Maddox earned more than what Mr. Bush feels is adequate compensation for a lifetime in a wheelchair for every four innings he pitched.

Former Tyco executive Dennis Kozlowski spent $2.1 million on a birthday party for his wife (more than Mr. Bush feels is fair for 8 people having to live while hooked up to tubes unable to feed themselves).

A lifetime with brain damage caused by medical negligence, according to the administration, should result in compensation for pain and suffering that is less than the cost of a 2002 Rolls-Royce.

The Whitewater Independent Counsel’s office spent in excess of $52,000,000 (the compensation due for 208 crippled children) to determine that “the evidence was insufficient to prove to a jury beyond a reasonable doubt that either President or Mrs. Clinton knowingly participated in any criminal conduct.”

Air Force One costs about $40,000 per hour to operate, so the President could take about a six-hour flight for the compensation due for a lifetime spent without the use of arms or legs.

The pharmaceutical industry gave approximately $17.5 million to Republicans in the 2002 election cycle. Those contributions represent the maximum pain and suffering compensation due for 70 brain-damaged babies.

Microsoft recently declared its first dividend. Bill Gates will receive $97.9 million from that dividend (tax free if the President’s proposal is enacted). Thus, the dividend will pay Mr. Gates more than the compensation due for a lifetime of pain and suffering each and every day of the year.

A Saudi Prince recently gave $500,000 to the George Herbert Walker Bush Scholarship Fund at Andover, our current president’s prep school.

Courtside tickets to Los Angeles Lakers games are $1,750 per ticket. Purchasing two season tickets would cost more than the Bush administration believes should be paid for having to spend the remainder of one's life being unable to breathe without a ventilator.

By all accounts, President Bush clowned and partied his way through Andover and Yale. The cost of tuition is $28,500 at Andover and $35,000 at Yale. The eight years of tuition for the education Mr. Bush treated so cavalierly is in excess of the $250,000 cap that Mr. Bush thinks should apply to people whose life has been ruined by medical negligence.

If a cap on non-economic damages is necessary, we think that $250,000 is too low. We suggest a cap equal to one year’s compensation of the most highly paid employee of the insurance company or hospital involved in the suit.

Defensive Medicine

The issue of tort reform in medical malpractice cases seems to be everywhere. A former trial lawyer, Senator John Edwards entered the race for the Democratic nomination for President. In West Virginia, doctors are on strike protesting increases in premiums for medical malpractice insurance. President Bush advocates capping non-economic damages in medical malpractice cases.

One issue that always arises when the topic turns to medical malpractice is “defensive medicine.” Some doctors and tort reform advocates contend that the fear of law suits causes doctors to order or perform tests and procedures that are not medically necessary.

Estimates of the costs of defensive medicine vary greatly. The estimates range from $25 billion per year to $100 billion dollars per year.

If those estimates are even remotely correct, defensive medicine is an issue that needs to be addressed. The entire health care system pays only about $5 billion per year for malpractice insurance coverage. Having doctors spend up to $100 billion of other people’s money each year so as to avoid less than $5 billion in potential liability does not make any sense.

Regardless of the exact cost, defensive medicine should be minimized or avoided. Defensive medicine, by definition, increases the cost of health care to the entire society without the justification of medical necessity.

The tort system imposes liability for malpractice on doctors only if the doctor is found to be negligent. In medical malpractice cases, a doctor is negligent if he or she violates what is termed the “standard of care.”

Tort reformers argue that having juries determine whether the standard of care was violated causes unpredictable results. At medical malpractice trials, the expert witness for the plaintiff testifies that the defendant doctor violated the standard of care. The doctor’s expert witnesses testify that the standard of care was met in every respect.

The jury members, who probably have little or no experience with the highly technical issues involved in modern medicine, are called upon to find the truth. Doctors feel that juries are not qualified to make that decision. Doctors, therefore, have little confidence that the jury’s view of the standard of care will match their own.

At the time the doctor is making the medical decision concerning whether or not to order an additional test or procedure, no bright line labeled the “Standard of Care” is available for consultation. The line is drawn in retrospect after the damage and subsequent litigation. Since the doctor has little confidence that the ultimate judge of the standard of care is competent, he or she may order additional tests or procedures out of fear that the failure to do so will later be found to violate the standard of care.

One way to end the pressure to practice defensive medicine is to have a set of bright lines defining the standard of care in all common and many rare situations. The doctor can then know that the additional test is required or is not required by the standard of care and that his or her decision will not be later second guessed by people without medical training.

How can such bright lines be determined in advance?

The problem is particularly difficult. Each patient, particularly in complex situations, presents a unique set of symptoms and risks. No two complex cases are exactly alike. It is very hard to write rules that contain bright lines in highly complex situations.

Secondly, each of the options available to the doctor has its own set of potential risks, rewards and costs. As a society, we simply cannot afford for each patient to have all of the procedures and all of the tests that might prove beneficial. Someone has to decide whether the potential benefits of the procedure are worth the costs. Doctors are trained in making people well. They have no particular expertise in making socio-economic choices.

The decisions concerning the type and amount of care that we can afford are by necessity political. Doctors cannot be expected to provide their services for free. They cannot be expected to order tests unless someone is willing to pay the costs of such tests. Only the society can determine whether a 2% chance of not finding a tumor in early stages is worth a $2000 test. The society may make that determination directly, or it may delegate the decision to individuals or the marketplace. In any event, the society has to determine how those decisions are to be made. That determination is political by its very nature.

One solution to the problem of defensive medicine is to adopt a single payer system of health care finance. If the government purchased all of the health care provided in the society, the decisions concerning the costs and benefits of medical procedues and tests would be made by the society as a whole through the political bodies.

By determining that, in a certain circumstance, the society either would or would not pay for a certain test or procedure, the bright line of the standard of care would be established.

Doctors, when considering a test or procedure, would determine whether or not the cost of that procedure would be paid. If the society chose not to pay for the test in that circumstance, the doctor would know that it was not required by the standard of care. The doctor would run no liability risk in falling to order the test.

We are not sure whether or not a single payer system of financing health care would be good public policy. We are still thinking about that issue. We are reasonably confident, however, that it would go a long way towards solving the problem of defensive medicine.

Friday, January 17, 2003
The Loss of A Friend

Jim Capozzola writes about the loss of his friend Richard Silbert. If Richard had held the picture of Marlene Dietrich high, we would have joined the parade.

Thursday, January 16, 2003
Public College Admissions

Sam Heldman writes:
First, you've got to figure out why we admit people to public universities. It's not as a reward for making good grades in high school. It's so that we can improve our society -- spending public resources to expand the minds of a lucky relatively-few, so that they will go on to do things that will make the world better. Admission is not an entitlement that arises from being smart. It is a matter of being chosen to be the subject of a public investment. Second, we have decided that we ought to invest in just about as many minority kids, proportionately, as white kids. Why? Because it seems pretty obvious to us that this is the way to improve the world -- not by reserving this public good mostly for white folks, but by spreading it around. The world will be better more quickly, we think, if there are black lawyers as well as white lawyers, Hispanic engineers as well as Anglo engineers, etc. And it also appears to us that any fairly-designed system of assessing "merit" just would result in approximately proportionate representation among races and ethnicities -- that is definitional, we think, as to the words "fairly-designed" and "merit". Third, if we went solely on SATs, LSATs, and grades, we wouldn't achieve this goal -- so we make adjustments. It's not a perfect system, but no one has ever yet designed a perfect system for measuring or even defining human merit in any sphere. So get over it.

We think Sam should be submitting an Amicus brief.

Tuesday, January 14, 2003
Dynamic Scoring For Spending Bills?

Kevin Drum points us a New York Times article on the revival of dynamic scoring of tax legislation for budget purposes:
The biggest rule change, however, is something that Republicans have long wanted, but thought too controversial to adopt when they first took over the House in 1995.

The Ways and Means Committee, where every tax law originates, will now be required to use "dynamic scoring," which estimates the cost of a tax change by predicting its impact on economic growth, rather than just calculating how much revenue would be lost or gained. Currently, Congressional economists use "static scoring," which assumes that a tax cut of, say, $100 billion will reduce government revenues by the same amount.

For years the supply-side economists have insisted that tax cuts stimulate the economy, producing increased government revenue that partially offsets the original cuts. But to their dismay, their own director of the Congressional Budget Office, Dan L. Crippen, rejected dynamic scoring. His term recently ended, and he was not reappointed. Replacing him is Douglas J. Holtz-Eakin, the top economist at the White House Council of Economic Advisers, who conservatives say is a champion of dynamic scoring. Indeed, the council used dynamic scoring to predict that rather than costing $359 billion over the next five years, Mr. Bush's tax cut will reduce government revenues by only $166 billion.

Tapped says that:
To put it bluntly, "dynamic scoring" gives the GOP further license to lie about their economic policies.

While we are confident that Tapped has accurately described the motives of the Republican majority in the House, we do not think that dynamic scoring is necessarily wrong in theory.

The purpose of the budget scoring is to provide lawmakers with accurate information concerning the fiscal impact of proposed legislation. If dynamic scoring is more accurate than static scoring, then, in theory, it is preferable.

It seems clear that tax cuts have some effect on economic activity and therefore on tax receipts. In an economy operating at less than full capacity, tax cuts should stimulate some economic activity. That additional economic activity should result in additional revenues to the treasury. Thus, dynamic scoring could, theoretically, be more accurate than static scoring for budget purposes.

Why then, do we agree with TAPPED’s assessment of Republican motivations? We have three reasons. First, we have no confidence that the folks determining the dynamic effect of tax legislation will be insulated from political pressure.

Secondly, it appears that the magnitude of the dynamic scoring is way out of line. The Counsel of Economic Advisers estimated that $395 billion dollars in tax cuts would result in a decline of government revenues of only $166 billion. In other words, the additional economic activity stimulated by the tax cut would generate $229 billion in tax revenue over three years. The federal government takes about 20% of national income. To generate $229 billion in revenue the tax cut would have to stimulate more than a trillion dollars in economic activity. That seems unlikely.

We hope that we got both the math and the economics of the last paragraph correct. Perhaps some readers more knowledgeable in economics will correct any errors we may have made.

The last reason why we think TAPPED is correct concerning GOP motives is that, apparently, the new dynamic scoring rules will apply only to tax cuts and not to spending increases. Spending increases also stimulate economic activity.

If the government builds a school building, it spends money on bricks, concrete, construction workers, architects and others. That spending directly stimulates the economy and results in increased economic activity. An increase in economic activity as a result of legislation is the sole justification for dynamic scoring.

If the purpose of dynamic scoring is to provide a more accurate guide to budget decisions, then it should be applied to spending as well as tax legislation.

If the GOP advocates dynamic scoring to increase the accuracy of budget scoring, there is no reason not to apply it to spending bills. If the purpose is to gain “further license to lie about their economic policies” then the dynamic effect of increased spending is irrelevant.

Monday, January 13, 2003
What Is Wrong With A Little Spin Among Friends?

Newsweek reports on a small piece of spin put out by the White House:
Bush wanted some answers from his team: the then Treasury Secretary Paul O’Neill, the then economic adviser Larry Lindsey, Commerce Secretary Don Evans and chief economist Glenn Hubbard. In the instant history that the White House put out last week, Bush’s question elicited a “universal consensus,” even from O’Neill and Lindsey, who would both shortly be fired. According to a senior administration official, all the men said their top priority was to end the double taxation of dividends. Not just to cut the tax on dividends paid by individuals. To end it.

The “universal consensus” touted by the White House took a hit today. The Pennsylvania Post Gazette reports the following:
Former Treasury Secretary Paul O'Neill, in his first public comments since being forced out of the Bush administration in December, said money from the president's $674 billion tax-cut plan would be better spent on shoring up the nation's ailing Social Security system.

In an interview Friday for the KD/PG Sunday Edition television show and in comments afterward, O'Neill said he saw minor value in eliminating taxes on corporate dividends as proposed by Bush but added, "I would not have done it."

We guess it depends on the definition of “universal.”

The Times, They Are A Changing

After the mid-term elections, it was widely reported that President Bush was a political colossus. He appeared to be politically unassailable. Mr. Bush had high approval ratings. He had gotten both his massive tax cut and a use of force resolution through Congress in his first two years. Mr. Bush took substantial political risk in 2002 and reaped the reward of Republican control of both houses of Congress. During the 2000 campaign as well as in his first two years, Mr. Bush had gotten a virtual free ride from the media. Mr. Bush has been described as the most powerful President since Lyndon Johnson.

We detect, however, a change in the zeitgeist. We believe that Mr. Bush’s popularity and political power have peaked and that his next two years will be much tougher than the last two years. There are a number of signs that point to erosion of Mr. Bush’s popularity and political power.

The first sign of slippage came in the two run-off elections in Louisiana after the midterm elections. Mary Landrieu won reelection to the Senate despite massive Republican resources poured into the state, a large White House effort including the personal attention to the race by Karl Rove, and the active support for the Republican candidate by President Bush.

In addition, in the Fifth Congressional District of Louisiana, Democrat Rodney Alexander beat Republican Lee Fletcher. That was an upset victory for the Democrats.

The second sign of slippage for Mr. Bush is in the polls. The mysterious Time Magazine poll showed his approval ratings at 55%. The poll has now been confirmed by an Ipsos-Reid/Cook poll showing Mr. Bush’s job approval rating at 58%. Link via Liberal Oasis.

MyDD also points out that President Bush’s reelect number in the Ipsos-Reid poll is less than robust. Mr. Bush’s job approval ratings are now significantly below those of Bill Clinton at the time of impeachment.

A third type of evidence showing a change in the zeitgeist with regard to Mr. Bush is the fact that the Republicans have had to back down from a number of positions in the face of political pressure. Mr. Bush initially backed Trent Lott remaining as Majority Leader of the Senate but had to back away from that position. The Republicans refused to extend unemployment insurance benefits in the last Congress but have now reconsidered. Republicans slipped the Eli Lilly protection provision into the Homeland Security Bill but now have announced that they will reconsider that provision as well as two others.

Perhaps the administration’s most remarkable retreat is in policy towards North Korea. The administration first denied that there was a crisis. They then equated talking to the North Koreans to appeasement. The administration then tried to avoid responsibility for their own mistakes by blaming the Clinton administration. Now, they are seeking to talk to North Korea. They have chosen former Clinton administration U.N. Ambassador Bill Richardson to handle the talks. They have hinted that they will provide energy assistance to North Korea if a deal on North Korea’s nuclear program is reached. In other words, they are now pursuing the Clinton policy that they were deriding as appeasement just a couple of weeks ago.

The fourth item that causes us to think that a change in the political weather is occurring involves the reactions to President Bush’s proposal for an alleged stimulus package.

After Bush introduced his tax cut package in 2001, all Republicans and a number of Democrats rushed to support it. The reaction to Bush’s 2003 proposal was quite different. At least five Republican Senators have expressed doubt concerning the package and one Republican, Lincoln Chafee of Rhode Island, has announced that he will not support it. Many of the twelve Democrats who supported the 2001 tax cut are openly skeptical of the 2003 proposal. For instance, Louisiana Senator John Breaux and California Senator Diane Feinstein each supported the President’s 2001 tax cut package and each have criticized the 2003 proposal.

The fifth development that suggests that the times are changing is the behavior of the media. While the media still treats Bush better than it ever treated Bill Clinton or Al Gore, Bush’s coverage is changing. There are a number of examples of those changes.

Dana Milbank in the Washington Post openly mocks the White House’s insistence that the President is “engaged” on every issue:
International environmental concerns? "The president has already been very engaged in these issues and plans to be engaged," Paula Dobriansky, undersecretary of state for global affairs, said in August. The India-Pakistan standoff? "The president is fully engaged," White House press secretary Ari Fleischer said in June. The review of military resources? "The president has been engaged," Defense Secretary Donald H. Rumsfeld attested last year. The China spy plane crisis? "He has been very engaged," said a senior Bush aide, briefing reporters.

This president, it would seem, has been engaged more often than Elizabeth Taylor.

Glenn Kessler of the Washington Post recently wrote a story about the process by which Mr. Bush decided that “regime change” should be American policy towards Iraq. Process stories are never helpful to a politician.

The press core is showing open hostility towards the prevarications of Ari Fleischer. Helen Thomas asks why the President wants to kill innocent Iraqis.

Last Saturday, on the Atlanta Journal and Constitution sports page, a columnist remarked that NFL referees have made more errors in the playoffs “than George W. Bush without a teleprompter.” A year ago such a remark would not have been published.

Believe it or not, even Howard Fineman has written an article about the President that is less than a big sloppy wet kiss.

We do not believe that any of the above necessarily spells political defeat for the President. Mr. Bush has substantial political assets including incumbency, unmatched fund raising ability, large segments of the media that act as wholly owned subsidiaries of the Republican Party and substantial goodwill of the American people. A war in Iraq may rally the support of the American people.

Mr. Bush also has substantial liabilities including a keystone cop policy in North Korea, poor relationships with many allies, a weak economy (and the Fed fresh out of interest rate elixir) and a media that may finally be tiring of a three year old story line.

Mr. Bush’s popularity was never going to remain at the levels reached in the aftermath of 9/11. The winds of change are blowing. Only time will tell whether they become a gale.

Sunday, January 12, 2003
A Renewable Resource – Victory

Imagine a football coach taking a player aside at the beginning of the season and saying, “Please do not lift weights or work out this year. If you do you will not have the strength you need in the games.” That conversation would never happen because in sports, it is well known that exercising increases, not dissipates, strength.

The same is true of politics. Take the nomination of Judge Charles Pickering for example. Conventional wisdom has it that if the Democrats exercise their political strength to defeat Judge Pickering, they will be all tuckered out and unable to defeat other right wing activist judges such as Pricilla Owen.

ABC’s The Note writes:
So why are they sending him back for consideration? To draw attention away from Owen, who, the aide argues, IS a Karl Rove protégé and DOES fit the White House mold, and also away from their other judicial nominees. The theory being that Senate Democrats may only have the votes and the oomph to filibuster and kill one.

The Washington Post’s E.J. Dionne writes:
Politically, the renominations were shrewd. By sending Pickering up again, Bush signaled to his Southern backers that he was willing to stand up for a Mississippian against Senate liberals, despite Lott's defenestration. And the energy the Pickering and Owen battles will soak up may allow other ideological nominees to slip through.

One of our favorite bloggers, Sam Heldman of Ignatz agrees:
Having no Senator myself (because I live in DC), I am not in much of a position to tell any U.S. Senators what to do. But if I did have one, this is what I would tell him or her:
if there's only enough mojo for a small number of filibusters on judicial nominees, don't use up much of that mojo on Judge Pickering.

Heldman’s point is that Pickering is already a Federal District Court judge, is 60 years old and the increase in his power by elevation to the Court of Appeals will be small relative to the increase in power of other potential nominees.

The reason we disagree with Heldman is that we do not believe that there is a limited amount of mojo. Mojo is a renewable resource. If you use it and defeat Judge Pickering, your supply will increase in the fight over Judge Owen. People will sign on for the fight when they see that it is possible to win. The exercise of political power makes you stronger not weaker.

If Pickering is defeated, it will demonstrate that there are limits to Mr. Bush’s political power. That will embolden liberals and make it easier to garner support for opposing Owen.

Mr. Bush has demonstrated that Democrats who support him will be relentlessly attacked in any event. Ask Max Cleland. He voted for the Bush 2001 tax increase as well as the authorization for use of force in Iraq. As thanks, Mr. Bush and his allies attacked Mr. Cleland’s patriotism and ran ads with Cleland’s picture beside that of Osama bin Laden. There is no advantage to trying to appease Mr. Bush.

The right wing has an insatiable appetite for right wing activist judges. E.J. Dionne again:
They understand the power of the judiciary to shape American political life for years to come. They brazenly use their executive authority to fill the courts with their allies. Then they attack, attack and attack again when opposition senators dare invoke their own constitutional power to slow a juggernaut whose purpose is to remake the world according to the specifications of Justice Antonin Scalia.

Picking and choosing your battles will only provide victories for the right. It will not satisfy their desire for more activist right wing judges. The only available strategy is to fight and defeat each and every activist right wing nominee.