Your Honor I Object

Kennedy Death Leaves Some Things Unknown

Who can tell whether the death and late incapacity of Edward Kennedy has left health care reform from being negotiated across the aisle?  Certainly, Teddy could do deals and get compromise bills on the table and endorsements made.  I cannot call him a hero, he was not.  But he did understand the power levers in the Senate and he did almost always say what he meant and meant what he said.  Today's politicians often cannot or will not tell their constituents the truth. 

Almost always, controversial matters are resolved with less than perfect bills.  This summer we have seen unskilled politicians become embroiled over the Obama myth that everything has to be done all at once on one-sixth of the economy.  Kennedy would have probably helped by prioritizing those things most precious to the liberal agenda and carving those into a co-sponsored bill.

Daschle and similar ilk these days prefer to skirt issues and sweep facts under the table with an obvious objective of killing Physician run health programs and judgments.  We all know that the insurance industry needs to be reigned in and steps placed to keep people from being barred under "pre-existing conditions" and other similar travesties. 

Government could and should be the back-up to provide co-insurance for insurance plans for those few cases that are outliers and provide incentives and credits so that the costs charged are equitable for all.  It is not fair nor prudent for the United States to suddenly become the owner and manager of such a huge issue as health care.  We are too large.  Too many industries are intertwined here because of big Pharm and big imaging and bigger lobbies.  But we can plan for the future and launch a transformation that benefits all.  We all want everyone covered by a plan at least for routine care and prevention.
We all want doctors and hospitals to be able to pay for quality medicine.  What we don't want is for the government to become a Nanny state. 

The long term issues generated by the debate include the cost of care at the end of life.  The culture of the country dictates much.  We don't revere old age we revere celebrity.

People deserve to know the truth and act upon it.  People should not be bankrupt in the ordinary course of treatment whether chronic or acute.  At the same time, we must move toward end of life care, not by a cramdown in a 1000 page bill, but rather the awareness that some people want to live out their life without intervention and then want to die quietly without pain inflicted upon themselves or their loved ones.

While the adage "They shoot horses don't they" does not directly apply to us, it is tragic to spill thousands of dollars to prolong only briefly a life lived in pain beyond the pale.  We must give the power to each patient and at the same time not tax the public when extraordinary measures are taken. Estate and family  succession planning must become part of society.  This process may take decades because our view of dying is much different than in other more spiritually directed countries.  While there is no one answer, we can educate ourselves beginning as teenagers and throughout live about consequences of our choices.

The United States is rich enough.  Kennedy had the chance to get it right and would probably have done so.  Will his death speed a bill through Congress? 

Yes, we can but only but avoiding the Nanny state.  Only by being fiscally prudent and more discrete in our communications.  And getting some kind of agreement to fix the whole elephant over the next few years (or even a decade).  Start by being merciful and funding everyone in basic care.  Start by making the taxpayers and their families bear responsibility for their fair share, but only their fair share.

Don't lets play Robin Hood either.  The economic recovery will be driven by risk-takers and capitalists.
We must ensure that the rules are followed.  We can recover by using our heads and not by cramming something fast and quick when it has little logic and even less certitude.

I won't call Kennedy a hero- his life was filled with mistakes.  A lesser family name would have gotten him jail time for his drive off the bridge- and we will never know the truth about what actually happened.  A just society can however view his long service and profound ability to negotiate fair change as perhaps ample payback.

I hope he can launch continued improvement in his next stage on the astral plane.  We can view his life as testimony that one struggles mightily in life and as we end on earth is a sum total of our experiences and progress. I am not so happy he is going to be buried in Arlington National Cemetery.  But it does provide a sense of continuity to the Kennedy brothers story.  And we must acknowledge that Teddy was the foot soldier for the ideals of John and Robert.  He had to toil long in the bunkers of real politics and has helped create some lasting changes for the better.

Long Time Attorney Will be Missed

My friend, and sometimes mentor, Bernard R. Lafer, died recently after practicing law in New Jersey and California for many years.  Bernard was a general practitioner who was not afraid to practice law against the big firms as a sole practitioner. 

Bernie was a uniquely suited person for defending and prosecuting claims when few other lawyers would risk taking their case.  He believed that everyone deserved their day in court and sometimes secured victories on their behalf even if he personally did not much benefit.

Bernard was a good friend and kind-hearted and generous.  He gave others what ever time they needed even if it put himself behind. 
I learned how to be a gentleman lawyer in times where the law can be anything but.  He was unafraid, however, of telling a judge the way things ought to be.  I told me he graduated first in his class and I believe it- he was tough in reviewing written materials and on more than one occasion let me know how horrible my brief was in the English language.

Bernie was an enthusiastic, if sometimes inconsistent, tournament bridge player.  He made the rank of Life Master in the American Contract Bridge League.  Indeed he did master the good life and lived loving the work and hobby he had chosen.

Somewhere in heaven, a barristers bridge table has been prepared for him.  May he play on forever!

Federal Circuit Gives Vet a Second Chance

The Federal Circuit recently decided the case of Cushman v. Shinseki and reversed the Court of Appeals for Veterans Claims.  Seems the VA improperly "modified" the mans medical record with false or inaccurate entries that caused the VA to deny his claim for unemployability (TDIU).

Back in the 70s the medical personnel or staff changed his medical record that was later used in deciding the claim.  He has severe back problems and had been rated 60% the highest allowed by the DVB.

The claim was heard based upon denial of Constitutional rights: the right of Due Process.  This is a unique petition of first impression.  The VA argued up and down that the mans rights were not violated and that he was not entitled to a rehearing.  Earlier in the case the VA requested that a negotiated settlement be granted which the court okay-ed.  But the settlement was never completed satisfactorily.

So now, the Court has granted the Vet a rehearing with orders to review the claim at the Board of Veterans Appeals or Regional Office (we shall see where exactly it goes) using the unaltered and proper medical record as the source of the claim for unemployability.  The main issue is the correct starting date for his claim as TDUI was finally granted in the 90's.

Now would be a good time for the VA to give the man a break and give him his proper due.
It is a shame that our good Veteran was not given the proper respect (even if the VA was correct using the correct medical evidence) for all this time.  I say he has earned it, how about you?

Sotomayor Confirmed with 68 Votes

Sonia Sotomayor was confirmed as the next Supreme Court Justice with a vote of 68-31.
No surprise except for the number of Republicans who are willing to risk getting bounced out of office next term.  Senator McCain is the primary example due to the increasing strength of minorities in Arizona.

Sotomayor may be the most scrutinized new Justice in history after critics say she cannot be race-neutral in forming her opinion.  Certainly, the liberal bench welcomes her.  Certainly, she has a long history of experience on the bench.  What I found lacking was any real depth in her written opinions so we will have to wait for a couple of months to see what she really has in the way of the Judicial pen.

President Obama will no doubt brag about this feat and try to hog the media spotlight for being the great savior of the US Justice system.  But, there may be flashback against him if controversial opinions are decided by her vote instead of Kennedy's.  People still remember Kelo and certainly conservatives will be waiting for her to make herself known as a super liberal. 

Watch for a long line of litigants trying to get in the front door of the Supreme Court- I predict that within the next 5 years gay rights and marriage cases will come pouring in.  Only a rare few will get Cert. but the issue will get heard.  The chance of unrest in the nation would increase with something such as an overturning of the Defense of Marriage Act.  The President says he supports the Act, but we all suspect he lacks firm convictions on the matter and is hugely aware of how he came to be seated in the Executive Office.

Even health care- long confined to the Federal Circuit- will raise it's ugly head in terms to come.

I do hope for Sonia Sotomayor to have success and show moderation and good reason on the bench.
That will do much more for good relations in America than having a beer with the good 'ole boys.

Beer for the Senate Next?

The Senate is ready to go home after a tough session on health care and Sotomayor too.
Let's buy them a beer if they promise to vote quickly and get out of town before messing up health reform with a quick bill that non of them have read.

Could we also encourage the House to vote for cash for clunkers and pay to get rid of some of our useless Senators with case as a down payment for all the havoc the trillion dollar folly will have on the middle class who will find wealth being transferred down to the poor.  Lets share the poor and never mind the employers who will need to take the least expensive way out.

This will mean delays in care and higher co-pays.  I find myself delaying care that might be important but not critical because of the increased costs.  Others will find that they must choose what bills to pay.

A better bill and a smaller chunk of the pie would help but the whole helping of social medicine where the uninsured get on the bandwagon to compete for no more doctors.

Sure, we want everyone to get coverage including the ones with pre-existing conditions- but not by screwing over the private plans that do try their best to hold costs down.  Give them a chance to prove what they said about cost savings before sticking everyone with a public plan that simply will give more people (friends of Barack?) high paying jobs.
Doctors should be in charge and utilize the best accountants and administrators in the process to make things work on a systemic level.

With enough beer, perhaps the Congress would not do anything a possibly welcome step this year.
Just give me the cash for the clunkers I voted for.

I Will Buy the Neighbor a Beer If Obama Won't

We have all been over the non-lesson lesson of Gates and Crowley by now, but what about the real lesson?
That being that a concerned, helpful citizen can be pilloried by the media or people with a racial axe to grind for no earthly reason other than meanness.

The lady who called 911 for an elderly neighbor just did her best to protect the neighborhood community and for that matter Gates himself.  The information she gave was extremely detailed and helpful under the circumstances.  Most theft crimes happen because we simply do not want to be involved even when things seem a little (or a lot!) odd.

President Obama should definitely have the lady in for a beer.  Or make that a formal dinner.  She did not care if the homeowner was black, white, pink, or purple.  She simply wanted to protect everyone including the possibility that the entrant in the home was the actual owner having some difficulty.

Real racists would simply not call at all.  Many would say so what if Gates home was burglarized.
The practice of racial politics threatens to create a backlash where none existed six months ago.
Yes, we know the truth that many are prejudiced  against minorities and some have reason to complete of reverse discrimination.  Now we sometimes do award jobs, positions, awards and titles to those who were discriminated against in the past even if they do not on paper (OR FOR REAL) do not rank number one.

We must be glad that the good lady caller was colorblind and unconcerned with racial matters.  She is a hero for all and set the example needed.  If only the rest of the world would explain the example and not try to bring fear and humiliation upon her.

So Mr. President buy her that beer and recognize her.  If not, I will!
How about some empathy (Obama's choice of words for Sotomayor) for the White lady?

Warrant Not Specific Enough in Criminal Case for Computer Search

In a criminal case recently decided by the 9th District Court of Appeals, a warrant not specifying the search of computers in the house was determined not to be specific enough in scope.

The facts of the case, Case 07-10567, Payton v USA, were that a warrant seeking evidence of anything used in the sale of narcotics did not include specifically any computer found.

The generic terms of looking for owe sheets and financial records did not give the Police probable cause to search when no other evidence was found involving the sale of drugs and no reason was discovered to allow the police to reason that the computer contents might contain any.

The officer found child pornography in a file searched when he moved the mouse of the computer and turned off the screensaver.

Other cases on point have shown that evidence in the vicinity of the computer might save a non specific warrant when the possibility is strong that the computer was used or involved in what the officers found.  Other cases have allowed such searches and seizures where the officers stopped and obtained a second search warrant before proceeding. 

The court distinguishes seizures as being considerably less invasive than searches when it comes to computers.  Judges often can and do limit the items allowed for search under the warrant.  It appears there is good reason for them to do so given the application of this and other cases appealed within the Circuit.

Given the great propensity for computers to store great quantities of data and support criminal enterprise, it will be in the great advantage for law enforcement to ensure that warrants issued have the desired search of any computer written on their face.

In the case at hand the mere mention of data without more would not support a non specific warrant under current application of the Fourth Amendment.  It appears that the appellant will not be convicted of possession of child pornography in the case cited unless other evidence is strong enough for the case to survive a motion for dismissal.  The appellant was given permission to withdraw a contingent guilty plea and the Court so ordered. 

Bluedogs Have the Swing Power in Health Care Reform

The Democratic Blue Dogs have stepped back from the abyss of health care reform spending.
Joined by Republicans and Independents, the groups realize the huge expense and mistake of tackling all of health care reform in one bill.

The committees are slowing down the markup process in some instances in order to rewrite and retrench their thinking.  About time.

The public option and the large cost to insure everyone has come under fire.  Justifiably so in my view.
The alternate ideas of having health exchanges and promoting more choice among employers would cost less and be more open to innovation needed to reduce future increases in the cost of health care.

Perhaps they should look at simplifying what care is offered and organize that part of the bill first.
Perhaps a regulation should be drafted to force HMOs and other health plans to accept everyone without regard to pre-existing conditions.  Certainly regulations and enforcement need to be more uniform and strict in regards to the abuse of patients.  Certainly Physicians should be encouraged to treat appropriately without throwing in the kitchen sink in the hopes of appeasing everyone and avoiding malpractice lawsuits.

In regards to malpractice, the practice of mediation and confession of mistakes would do much to reduce the turmoil in these areas and keep legal costs down.  Malpractice insurance can be subsidized by the government and salaries and education loans granted earlier in the careers of doctors and other health care professionals.

 I believe a separate state mediation system and even low level state courts have merit.  We want to police bad doctors who should find another field of endeavor and at the same time not drive out goods ones who just happened to have had a bad (and usually unlucky) day dealing with a seriously ill patient.

Patient safety programs and more intensive audits of specialists can reduce unnecessary patient deaths and complications if we make it meritorious and financially advantageous.  The 21st Century is the time of opportunity and should be one of better long term health care for all.

Health Care Reform Not a Now or Never Event

The cram-down of health care reform bills continues this week from the White House and senior Democratic officials despite the CBO's analysis of the negative impact on the budget and total failure of the bills as written to address costs.

The idea that the two bills could pass and then undergo a massive transformation during the reconciliation process boggles the mind. 

We are talking about health care quality and yet the authors of these huge bills seem not to care about quality in presenting them as long as the President is appeased and the mess sweep under the rug. 

Last night on Meet the Press, Secretary of HHS Sibelius said that coverage of the uninsured was a major objective along with several others not necessarily the most important one.  Supposedly, the quality of care and reduction of expenses are the top objectives.
Now, that has merit.  But the election may have been won on the coverage issue among the unemployed in key electoral college states. 

Worse, the issue of quality cannot be married with the idea of a competing public plan being the savior to all.  To be sure, a public plan would result in numerous contracts limiting costs and/or benefits to numerous procedures at below "market costs".  As it stands now, most health plans pay far less than the uninsured to do just about everything beyond Doctor visits themselves.  It seems doubtful that costs would decrease more than a few per cent.  And it would likely cause a number of
Corporations to reconsider what benefits they will allow (or the cost shared with the employee) as a required duty to shareholders to obtain the maximum return for capital.

The number one concern in the CBO review is how to pay for it all.  The analysis shows that nothing is being proposed to actually keep health costs down: these things would include research into effectiveness of care and the excessive use of technology.

Clearly, the Democrats figure that most of the rich are either Independent or Republican and hence should be hosed down for as much money as possible.  The labor unions and education lobby among others would not be taxed much if at all.  Now, most people would be willing to give a little more to help get people insured if they could be assured that the tax or fee was fair and that those with the ability to pay some of the cost themselves actually did so.

Massachusetts rides to the rescue by forcing everyone to pay for coverage or pay a penalty.  But in doing so the design they chose did not reduce costs, it increased them.  I suggest that taking a bit longer in planning and writing the National bills would be of tremendous long term benefit.

Obama has the bully pulpit.  But the credibility of the President comes into play here.  If he is such a great leader, he and of course the Democratically controlled Congress, must have confidence that they are doing the right thing even if the poll numbers are at risk.  Otherwise, the charges later of Socialism when things need a serious overhaul again in a year or two will ring much truer. Doing something in haste with a poorly written and analysis bill just makes no sense unless the truth is that ideology not practicality has taken hold of them.

Republicans do want change and want to make sure everyone (including those with existing conditions) can get covered and afford the care they need.  But we don't want to throw the baby out with the bathwater.  The President has said that the United States leads the world only in cost for health care.
He may be right on statistics.  But the overall assessment must include such things as research and innovation as well as the per cent of people getting timely care. 

We must increase the capability of the existing health care system while we are making these changes.  We must regulate health plans to insure they do not cancel and mistreat their subscribers.  We must penalize them for excess profits when they refuse to treat for economical reasons alone.

And we must empower Physicians to run the system and provide the care they know is needed, not just what some bureaucracy imposes.

We must, as a society, change our view on long term treatments at the end of life. We  must revise how care is delivered and our attitudes towards the terminally ill to avoid spending resources futilely because only the best and most will do. 

These are not now or never events.  We must work as a nation to turn the tide against the current health care crises.

Sotomayor Smiles at the Senate

Nominee Sonia Sotomayor has made it through the no testify attestation hearings held this week. 
She said little but more importantly looked mostly in control.  She did give a hint at how hard it could be to live with her and I suspect there will be some stormy meetings at the 'ole Supreme Court in the future.

We are left with guessing what kind of Justice she will be.  I hope she will write capably on her first opinion though she has not left the impression that writing is what she does best.  Her style appears to be impenetrable in the cases I have read.  Does she want to change the existing law?  You bet and that is why Obama picked her first.  You can be sure that there are groups out there right now seeking the perfect kind of challenges to voting rights and personal rights cases where she may be the swing vote.

The number one goal for the coming term (or 2-3) will be to wrest the swing vote away from Justice Kennedy and become known for her "outspoken, yet silent" views of the law.  H'm.  Sounds kinda like Justice Cardozo who changed the law while pretending not to.

She could be an outstanding jurist.  Or not.  We will see if she goes with the analytical approach or the empathetic approach to cases very soon.  Watch both the tone and the vigor of her questions during oral argument.  That will be the clue- the antithesis of Clarence Thomas no doubt, who never asks any questions.

It will also be interesting to see what kind of clerks she hires.  Think there will be many white folks picked?  Well, it depends upon how she judges such things and weighs  their skills and traits to come up with merit.
Maybe she will do my tribe a favor and pick a Native American.  But lets not count on anything just yet.
After all, she will probably only get 81 votes.

Anyone for Hilliary as the next Justice?  Or should we try for Bill!