Beelzebub Blues

I used to think the Devil was messing with my politics. Now I know it's just those damn Senators.

Medical Malpractice -- Defensive Medicine

Clark Newhall sent me a letter and a copy of The Medical Malpractice Myth. Thanks. I'm enjoying the read. But, I think you miss my point.

I believe that medical malpractice occurs. Of course it does. Medicine is a human endeavor -- susceptible to human mistakes.

I believe that people subjected to medical malpractice should be compensated.

But I don't believe that lawyers should be unjustly enriched at the expense of medical malpractice victims. Nor do I believe that medical decisions should be driven by litigation concerns; instead, they should be driven by what is best for patients. To that end, I have a few questions:

1. Why do medical malpractice attorneys take such a big chunk of the money that is intended to compensate medical malpractice victims?

If the justification for taking a third or more of the victim's money is that the legal work is so darn tough and unpredictable, then let's simplify the process (a.k.a, "reform"), like my legislative colleagues helped me do regarding compensation for car-accident victims?

2. Is defensive medicine always a myth?

Many women would like to give birth naturally after having a previous c-section. However, many hospitals don't allow this, it seems, more as a reaction to litigation concerns than medical concerns. In that situation, it seems that litigation concerns waste resources and, worse, threaten great harm to people. Women are forced to either (1) give birth naturally, away from a hospital (which can be a health risk in a VBAC situation, since uterine-scar tearing is possible) or (2) undergo a surgical procedure they would rather avoid (which poses significant risks, in normal course and in cases of human error).

So, don't get me wrong. I'm not against compensating victims or against thwarting malpractice. I'm against lawyers walking away with so much of the victim's money and with lawyers driving medical decisions that are harmful to patients.

Welcome Home 222nd!

The Triple Deuce has returned home from Iraq! We are so pleased, and we are honored by their service.

C'mon, Get Happy

Three things to be happy about:

Wikipedia

Pandora

Havaianas.

UPDATE (6/22/06): Here is a New York Times article on Wikipedia. Of course, some of the Wikipedia entries won't be perfect. But most that I've referenced have been superb. And considering that Encyclopedias used to cost thousands of dollars (and become outdated quickly), Wikipedia is miraculous.

As for Havaianas, let's see what Wikipedia has to say on the subject. 2 billion pairs! That would circle the globe 50 times.

A Response to "Medicaid -- Tort Reform"

I argued here that litigation costs and concerns are squandering some of our Medicaid monies. Charlie Thronson disagrees. He writes:

I agree with you that it never hurts to review the current system in any
government program, but I don't agree that the current Medicaid costs,
cutbacks or funding problems can be laid at the feet of those people who
are injured or killed as a result of substandard medical care.

The Institutes of Medicine (hardly a "trial lawyers" group) have
estimated that preventable medical errors kill between 40,000 and 90,000
Americans each year, making medical errors the 7th leading cause of
death in the United States. Hundreds of thousands of other people who
are not killed outright are injured, many very seriously. Utah has some
part in those alarming statistics.

The usual whipping boy for alleged "litigation-driven" medical costs is
what is called "defensive medicine." In my experience, "defensive
medicine" is in the eyes of the beholder: Take the case of 4-year old
[Jane]. Her mother pled with the ER doctors at [Hospital X] to do a
simple blood test to rule out meningitis. They expressly refused,
saying it was an unnecessary cost (at $15). Thirty-five hours later,
Jane was dead from bacterial meningitis.

In virtually all of the cases I have done, the problem is health care
providers ignoring clear warning signs, assuming that the problems they
are seeing are benign. If "defensive medicine" means doing those things
that the accepted medical standard of care requires, then it should be
encouraged. On the other hand, if "defensive medicine" means doing
tests or procedures that are excessive or unnecessary, then it is a
clear violation of both state and federal law, as well as the ethical
rules of the profession.

The reality is that patients are often given short shrift in medical
services, and Medicaid patients are at the bottom of the barrel in terms
of the attention they are given by most health care providers. The
reality also is that the state pays out millions of dollars for health
care costs caused by medical errors. Some of this is recouped for the
state by the attorneys representing these injured people (the dreaded
"trial lawyers") and is part of the $3.4 million reimbursed to the state
this fiscal year. Roughly the same amount was recovered by victims'
lawyers and returned to the state last year.

So while studying the issue is laudable, I respectfully suggest that the
Legislature should also study why so many Utah citizens are injured or
killed from medical mistakes, how much Medicaid pays for these mistakes,
and what can be done to curb this serious problem.

(I took the liberty to change the name of the girl and the hospital.)

UPDATE (6/21/06): And then there's Clark Newhall, who writes, "Frankly, I am surprised that a person with the intellectual capacity to obtain a law degree would fall for the anecdotal hysteria that passes for health care debate in Utah." I'd like to publicly thank the members of my law school study group for translating all those fancy lawyer words into pictures I could understand.

Best Heavyweight Ever

Muhammad Ali. Between 1964-1967, not only unbeatable. Untouchable.

Stop the Presses!

The Trib's editorial board has grappled with the complexities of Medicaid and figured out a solution:

The Legislature can still redeem itself by creating a program that provides the most care for the most people at the least cost, without expecting doctors and dentists to either absorb the cost or pass it on to their paying customers, and without whining that it's all the federal government's fault.

Most care, most people, least cost, adequate pay for doctors, ignore federal funding. Brilliant! The committee members will want to know about this.

UPDATE (minutes later): For a more informative take on the topic, here is the D-News editorial.

Everyone Is a Winner

A Virginia high school had 41 valedictorians. The other students, presumably, were salutatorians: except for one guy. So that the valedictorians and salutatorians could feel better about their titles, they designated that guy Class Bonehead.

My brother worked hard to be valedictorian of our high school, and would have been but for a "B" in drivers ed. Life is competitive. Some can parallel park, and some can't.

Bush, Duvall, and Urquhart

On Letterman last night, Robert Duvall talked about a recent meeting with President Bush. Duvall said he and the Prez agreed on the best brisket in the world. Of course, I knew he was talking about either Kreuz Market or Smitty's Market in Lockhart, Texas -- both restaurant owners being estranged heirs to the same recipe. According to Duvall, Bush and Urquhart, the winner is -- Smitty's.

Early Voting

Bob Bernick has a good article on early voting. Instead of fear providing the impetus for legislative authorization, as Bob argues, I'd say it was more due diligence to make sure we got it right. But, whatever. Early voting is here, and I hope it helps.

Bob's point about distributed voting changing campaign strategies is right on point. And, thank heavens. Last minute mailers can be beneficial -- if they are "Vote for Jane. She's the best!" But, all too often, they are "Don't vote for Bill. He's a liar and a crook!" And, at that time, of course, Bill has no time to speak to the charges in a way that voters can evaluate the truth of the allegations. Distributed voting forces candidates to get in their summation points earlier, and might cut down on some of the nonsense.

With over a week before the actual primary, I'll get in my final say on all the candidates vying for elected office; at some level, they're all crazy.

Medicaid – Tort Reform

I was asked whether tort reform should be part of our study of Medicaid. Yes. Litigation and litigation concerns take up a big chunk of the available Medicaid monies. Therefore, we should study whether this aspect of the system can be improved, in order to provide better services to more people.

Lawyers tend to get hot and bothered when “tort reform” is mentioned. But the public shouldn’t let the heat kill the discussion. Reform simply means to do something different and better. Anyone who thinks that there is no room for improvement in medical malpractice litigation is nuts.

Talk with an ER doctor sometime about the waste of Medicaid resources caused by defensive medicine. Doctors often order up costly tests they believe are redundant or superfluous. Why? So that, just in case something freakish happens, testimony in court would reflect that the doctors jumped through lots of hoops. It’s not good medicine. It’s just costly steps taken to prepare for cross examination in those unpredictable and exceptional cases where something goes wrong.

If something goes wrong, doctors providing Medicaid services need to be ready to answer: “Can tests X, Y, and Z help diagnose that condition? Did you conduct all those tests?”

It is a plaintiff lawyer’s dream to have a doctor answer, “Yes. Each of those tests can help diagnose the condition. But test X catches it 99% of the time. Tests Y and Z can be helpful in some cases, but the tremendous cost of providing those tests for every patient would mean that many other patients would not even receive basic care in some other part of the Medicaid system. Therefore, I decided it would be a better use of scarce resources to provide top-notch service for lots of people rather than top-notch-double-redundant service for half as many people and half as many conditions.”

Maybe the State should better define how we allocate these precious resources.

Philanthropists Step Up

James Sorenson and Intermountain Health Care have donated $2M, to help provide dental care for Utahns in need. Thank you for your great generosity.

How Much Should Government Provide?

My first year in the Legislature (2001), the State had a huge surplus (we thought). As we were moving toward setting aside about $20M for the rainy-day fund, a fellow-freshman representative pleaded, "How can we consider setting aside this money when there's so much need?" It raises an interesting and important question: how much should government pay for?

A good summary of the budget is found here. Because the budget is just under $10B, I'm going to round off dollars. The big 3 expenditures are education (42% of the budget), health and human service issues (24% of the budget), and transportation (11% of the budget). So:

$4.2 billion is spent on education. Who thinks that is enough?
$2.4 billion is spent on health and human service issues. Who thinks that is enough?
$1.1 billion is spent on transportation. Who thinks that is enough?

Advocates for each item above would say that billions more are needed for just that item alone. Okay. Where would we find it?

There are 4 real sources (and, of course, combinations of the 4). Take it from other programs, take it from citizens' wallets, get the private sector to fund it, or grow the economy to generate more revenues.

Other programs. After the items above are funded, 23% of the budget ($2.3 billion) is left to fund all other state agencies, programs, prisons, law enforcement, state buildings, parks and anything else the State does. Who thinks that is enough? Some programs can be trimmed or eliminated, to push money elsewhere. But, to grasp the size of the task, remember that $30M has to be found in some program or combination of programs just to move the public education budget 1%.

Citizens' wallets. If more money is needed but can't be taken from other programs, it has to be taken from the citizens. Reasonable minds can differ on appropriate tax burdens. However, I would hope that everyone would recognize that, at a certain level, high taxes generate even less revenues -- because they scare away productive citizens and jobs. My feeling is that our tax burden (around the 9th highest in the Nation) is too high and currently thwarts our economy. Grabbing more of our citizens' money would be harmful: that's my opinion.

Private sector. Regarding the Medicaid dental issue, I wrote that the private sector might be encouraged to help with some of the funding (even more than it currently does).

Senate candidate Pete Ashdown recoils at the idea of the private sector pitching in. Pete commented:

Herbert Hoover had a similar idea in regards to caring for the sick and infirm who are unable to pay. It didn't work out so well.

Charity is an essential part of being human, but the coffee can at 7/11 isn't going to always buy that needed liver. The Veterans Administration has demonstrated an efficient way for government to provide insurance for our heroes, all we need to do is properly fund it. The private sector on the other hand has done a disasterous job on funding American and business health care needs.

Using the liver analogy, 1/2000th of the overall burden wouldn't be the cost of the liver transplant but, rather, would be the cost of the ride to the hospital. Nonetheless, his point seems to be that government should be expected to provide more than it currently does, though he does not say where the revenues should come from.

Economic growth. A commentor to this post states:

Investing in Utah's economy will provide those who are in need of State assistance with improved access to resources, broader funding of necessary services, and a bridge to self-sufficiency.

The Angry Citizen. And, then, representing the position that doesn't advance anything (the strong dissent with no substantive suggestion), is the comment to this post on how the current Medicaid program faces the real-world problem of dentists not taking Medicaid enrollees:

Then find a way to make it work Senator, BUT MAKE IT WORK!

I'm not sure why he used just one exclamation point, but that was his call to make.

So, to help us MAKE IT WORK!!!, what would you suggest is the proper role of government in funding services and programs, and how should we best go about it?

Medicaid – A New Possibility

Medicaid issues are generating a robust discussion and some interesting possibilities. The discussion could benefit from some solid numbers. It is important to note that a lot of money is spent in Utah on Medicaid and other Health and Human Services issues. HHS issues already receive 24% of our total budget ($2.4 billion out of a $10 billion budget). And Medicaid grows faster than any other part of the budget.

Like most areas of the budget (education and transportation, to name just two), there isn’t enough money to satisfy all Medicaid requests. So, we have to do our best to prioritize. For Medicaid, that means the Legislature works to fund the core program. Despite Utah’s rapidly-escalating Medicaid expenditures, it is increasingly difficult to provide core services, because (1) the federal government is cutting back significantly on its contribution and (2) service providers are refusing to see patients for the amounts being offered per visit.

For these reasons, the Legislature authorized a special interim committee to study Medicaid issues and figure out how better services can be provided to more people. In the last Special Session, the Legislature chose not to fund an optional dental program until the comprehensive study had been undertaken. Later, HHS also agreed not to reprioritize its discretionary funds to cover the dental program. I believe that the dialogue generated by those decisions ultimately will be beneficial.

As I discussed in the previous post, the first draft isn’t always the best. The path we were on with Medicaid dental care clearly wasn’t working. Dentists, in large numbers, are refusing to see the Medicaid enrollees. Simply putting more money into the current program largely would have been a hollow gesture – more money sitting in an account with dentists refusing to provide the services.

But, already, shortly after the Legislature and HHS decided not to spread funding to the optional program, it looks like a third way might be emerging. The Governor might have hit upon a better path for the future regarding optional Medicaid programs – looking to Utah’s tremendous compassion and sense of volunteerism. Attempting to find solutions (or at least partial solutions) for tough issues, I have often advocated such a path.

The reality is that volunteer programs probably have to come from the CEO (e.g., Mitt Romney and the unprecedented volunteer efforts for the 2002 Olympics). Raising campaign funds immediately after his election, the Governor showed a staggering ability to command the attention and excitement of the private sector. Now, he seems to be turning those talents toward the tough issues of the State. The Governor already has located a private donor who has offered $1M to help out with the dental care, and other offers to assist are pouring in. (It really does happen. Two-months ago, I located a donor who was willing to help in another difficult arena). Were the Governor to lend some of his considerable political capital to organize an effort to (1) raise private funds for optional Medicaid expenditures and (2) entice health care providers to provide even more care in this arena, amazing things could occur to complement the Legislature’s efforts to better provide for the core program.

I am not aware that anything like this has ever been attempted in the Medicaid arena. But, based on the outpouring of concern that has been expressed for optional services, it might have a chance of working in Utah. Or, it at least might help provide a piece of the puzzle. Though I'd imagine the Governor's people are already on top of this, I will ask Legislative Counsel to explore the possibility of setting up a program to allow tax deductions for such contributions.

Of course, there's no way that private donations could replace the $2.4 billion dollars of taxpayer money that are directed toward Health and Human Service needs in Utah each year. And there's no way that private donations could even put much of a dent in just the annual double-digit caseload and inflationary growth of Medicaid. Tax revenues will continue to fund those core concerns. But, if private donations could even make a fractional contribution to the overall system, that would mean a great deal in human terms.

UPDATE (6/13/06): Information on making donations is here. And, not surprisingly, Utah was ranked first in volunteerism. It is one of our greatest assets.

Checks, Balances, and Progress

The first draft of an idea isn’t always the best. Many times, revisions and input from other sources help improve a product, decision or service. By constitutional design, state policy mostly is set through such give-and-take. When one body rebuffs the agenda of the other (Senate v. House, Governor v. Legislature), it sends the topic back to the drawing board. As the Governor points out, it typically is not that anyone is playing politics with serious issues. It is simply the process at work. Two recent events illustrate the process.

Legacy Highway – Legacy Highway posed the first significant disagreement between the Legislature and the Current Administration. The Administration had done a very good job of negotiating the broad outlines of an agreement to end the tremendously expensive and wasteful stand-off with environmental groups. Because any legal agreement over $1 million requires legislative approval, the Governor and Lt. Governor met with House and Senate Republican Leadership to explain the agreement. After a robust discussion, Leadership voted unanimously to not accept the agreement as it then existed but, rather, to work to improve a few elements of the agreement.

This created a very sore spot with the Administration and – even though everyone other than the plaintiffs would have to concur that the agreement subsequently was significantly improved – the topic remains a tender point. But, for the citizens, the give-and-take paid great dividends. Without it, we would have lacked finality. We would have been tied to the litigious groups through a consent degree and been subject to the whims of the judge without democratic recourse. Also, the very plaintiffs that cost the taxpayers hundreds of millions of dollars and years of delay would have enjoyed a “super seat,” greater than that of other citizens, on future planning issues. Davis and Weber County Legislators took tremendous heat from many of their constituents for not rubber stamping the first Agreement, but their strength paid off greatly and a proper balance was struck in the final Agreement.

Concurrent Enrollment – Concurrent enrollment allows high school students to receive college credit while taking certain high school courses. This year the State considered whether some of those costs should be paid for by the student receiving the credit or whether the costs should be recouped from the tuition of existing college students. The Legislature passed a bill that would allow the colleges to recoup some of their costs from the beneficiaries of the credits. The bill was vetoed. (My prior posts here and here).

While the veto means that fewer concurrent enrollment credits will be offered to high school students and that college students will pay higher tuition to fund the credits that are offered this year, the sun will still come up. I made my points in the debate. Others in the Legislature and higher education made their points. This issue simply went the other way. Supporters of the veto also have their strong reasoning to oppose the bill. But, everyone involved appreciates concurrent enrollment and wants the program to succeed. We simply did not hit on the best way to get it done. (I easily could have said the “feasible way” to get it done, but I believe deeply in representative democracy; these disputes typically lead to better solutions). We’ll take it up next year with an increased knowledge base and even greater involvement by the interested parties.

I believe in our system of government. I've seen it work. Struggles and disagreements are part of the process. The good news for all of us is that the public's ability to participate in the process is growing rapidly. And, that should lead to better results.

Cheatgrass

Today, I watched firefighters battle a blaze that threatened a few homes in Bloomington. Last July, I described problems that neglect and cheatgrass create for western rangelands, and concluded thusly:

Next time you hear extreme environmentalists talk about more wilderness, ask them how they're managing the land they've already locked up. As you watch the catastrophic fires this summer, ask yourself who gave these groups the keys.

For those wanting more information (and I'm sure that would include tens of people), the Utah Division of Wildlife Resources published an excellent article on cheatgrass (pp. 12-14).

UPDATE (moments later): Checking the link to the cheatgrass article, I noticed the preceeding article on Sage Grouse (pp. 6-11). Sage Grouse present an excellent case in point to illustrate how extreme environmental groups can hurt the environment and willingly do so. Sage Grouse populations are in rapid decline. The causes are multi-factoral, including real estate development and overgrazing. The greatest threat to the Sage Grouse (and many migratory birds), though, is exactly what I described last July in the link above -- encroachment of monocultural stands of cheatgrass and pinyon-juniper. The best tack we could take to save the Sage Grouse right now is to chain (and otherwise treat) many of the pinyon-juniper stands and, believe it or not, graze cattle on the improved range. Sage Grouse thrive alongside cattle. This presents a sticky truth for extreme groups. They have staked out strong fundraising positions that chaining and cattle are bad. One group states:

Numerous and sundry mechanical means are employed to physically destroy plant enemies. Prominent among these is "chaining," in which a heavy chain (or a heavy cable) is dragged between 2 crawler-type tractors to rip out all woody plants. The heavy equipment and huge anchor chain kill wild animals, destroy nests and burrows, kill many non-woody plants, damage the soil, drag and dislocate large rocks, and generally trash the land.

and

Ranching has wasted and is wasting the Western United States more than any other human endeavor.

But what if data shows that chaining and cattle are good for the sage habitat on which the Sage Grouse and so many other species depend? Answers to complex problems rarely are simplistic.

Blog Power

Blogs merely form a subset of communications. But what a beautiful subset it is. Blogs are inexpensive and, when well done, they can be startlingly piercing and authoritative.

Blogs help the small guy make a point. Just ask Trent Lott or Dan Rather.

And they also can help the big boys. Of note locally are the several blogs of the Salt Lake Tribune.

The informality of blogs takes off some of the veneer and allows for pointed communication. Take General Motors, for example. GM -- no schlub at mass communications -- was called a "crack dealer" and otherwise berated by the New York Times. What would GM have done in the past? It could have sat back and taken it or run some sort of "we are not a crack dealer -- how dare you" campaign. Instead, it shredded the NY Times for its insularity and apparent one-sidedness, on the GM blog.

The question is whether anyone reads the GM blog. With links to the post, it obviously is getting good traffic. (But I wish they'd include a sitemeter.) I would guess the next step for GM is to more-broadly introduce the exchange (and their victory in it) to the mass media. The beautiful dichotomy of the exchange is that GM (by allowing uncensored comments on its blog) appears much more open and First Amendment friendly than the Times (which won't allow its writer's "crack-dealer" comments to be refuted by the steamy word "rubbish").

It's a new and very exciting world in communications. Big is small again. And this translates well to so many other areas. Like government. Just in the 6 years I've been in office, a constituent's ability to monitor his/her elected official has easily doubled. And, if they choose to use it, their ability to interact has doubled as well. And that can only lead to better results.

Education Funding -- Local Effort

The comments to this previous post touched on the efforts of school districts to directly improve their funding situation. Rep. Alexander discusses local funding efforts on his blog, including the vote his school district will have on the ballot this month to raise those funds.

Paying Teachers What They're Worth, Part 2

In the post below, I asked whether good teachers should demand to be paid more than bad teachers.

One reader referred me to an article about the D.C. schools considering performance bonuses for teachers and flexibility with Union rules.

This system would be the "hybrid option" of the math incentives bill I passed last session (compensation bonuses based on both inputs (certifications and degrees) and outputs (student performance)).

Another reader took me to task for separating the topics of collective bargaining and school choice. Interestingly, the actions of the D.C. district are being taken in response to choice. "The landscape has changed. Our parents are voting with their feet," [Union President George] Parker said. "As kids continue leaving the system, we will lose teachers. Our very survival depends on having kids in D.C. schools so we'll have teachers to represent."

The school board member who took issue below with my tone graciously contacted me off-line for a nice exchange. I'm glad she reminded me to also celebrate the great things that are happening daily in our public education system. We're doing a lot of good, and if we reason together we can do even better.

Paying Teachers What They're Worth

A few years before I joined the Legislature, I heard Tom Hatch speak. It was at a time that teachers were threatening to strike. A teacher demanded, "When will you pay us what we're worth?" Tom answered, "When you let us."

It is an odd phenomenon that the best teachers go along with collective bargaining agreements and don't demand to be paid more than mediocre or even bad teachers.

Saturday I heard Rick Hess speak about education reform. In his work, A Better Bargain, he makes the following points about collective bargaining contracts:

1. They restrict efforts to use compensation as a tool to recruit, reward, and retain the most essential and effective teachers.

2. They impede attempts to assign or remove teachers on the basis of fit or performance.

3. They over-regulate school life with work rules that stifle creative problem solving without demonstrably improving teachers’ ability to serve students.

Hess argues that collective bargaining agreements should be modified in 5 important ways:

1. Teacher pay should reflect the scarcity and value of teachers’ skills, the difficulty of their assignments, the extent of their responsibilities, and the caliber of their work.

2. Pension and health benefits should resemble those offered by other organizations
competing for college-educated professionals, which will entail shifting from industrial-era defined-benefit plans to defined-contribution plans better suited to the new economy and a professional workforce.

3. While reasonable safeguards are essential, tenure should be eliminated from K–12
schooling or, at a minimum, contracts and state laws should be modified to enable
management to more readily remove ineffective educators.

4. Personnel should be assigned to schools on the basis of educational need rather
than seniority.

5. Work rules should be weeded out of contracts, and contracts should explicitly define managerial prerogatives.