Your Honor I Object

Ricci v DeStefano Sets Statutory Standard for Discrimination

The US Supreme Court decided Ricci et al v. DeStefano et al on June 29, 2009 by over-ruling the Federal District Court where future Justice Sotomayor sits.

The Supreme Court indicated that the District Court did not follow the correct Title VII standards dealing with disparate treatment and disparate impact, both covered under the 1991 revision of the statute at 105 stat 1071, 42 U.S.C. S2000(e)-2(k)(1)(a)(i). 

The opinion notes that "whatever the City's ultimate aim, however well intentioned or benevolent it might have seemed, the City made its employment decision  because of race."  The City would need a lawful justification for its race-based action.

The Defense: The employer would have to have a job related justification for the position(s) in question and consistent with business necessity.  Here, the court had to interpret the statute weaving between the Petitioner's over simplistic analysis of impact and the Respondent's over simplified basis of treatment assuming that there would be a disparate treatment discrimination suit if the white applicants were promoted. 

The Court today adapted an analysis from a constitutionally based employment case, Richmond v J.A. Croson Co., 488 US 469, at 500(1989) quoting Wygant v. Jackson Bd. of Ed., 476 US 267 at 290.

To resolve the conflict on a statutory basis between disparate treatment and disparate impact, BOTH of which are governed under the Civil Rights Act, Title VII. the court hereby utilizes the strong-basis-in-evidence rule as a construction.

There must be a strong basis in evidence that the action taken be a necessary step to remedy past racial discrimination.  Here that means that post-construction of a test the results must logically follow.  The City could have analyzed the contents of the exam before giving the exam, but once the conditions of promotion were established on a professional basis (even if some questions had flaws) with no discriminatory intent, the results of the examination could not be canceled.  The City simply could not deliver the goods based solely on the statistical results because it would not be at all certain that a disparate treatment lawsuit would successfully follow the promotions of white candidates.

The case will be remanded for trial- Summary Judgment for Petitioners on the reverse discrimination claim.

We can be certain that this case will be discussed at length during Sonia Sotomayor's confirmation hearings.  The Court has here stated (5-4) that her analysis missed the mark in this case.

US Supreme Court Defines Analytical Affidavit as Testimonial

The United States Supreme Court decided today, June 25, 2009, the case Melendez-Diaz v. Massachusetts.  This case centered around whether the sworn affidavit detailing the composition of a substance (cocaine) was testimonial in nature as controlled by the Sixth Amendment Confrontation Clause of the US Constitution.

The majority ruled that the Confrontation Clause was violated when the analyst did not testify at trial.  Rather, the trial court ruled that the affidavit itself be admitted.  Needless to say, the defendant could not cross examine the piece of paper and the court today rules otherwise.

This seems to violate previous rules in criminal trial according to the dissent.  However, the opinion disagrees pointing to language that defines testimonial evidence to include affidavits when the ordinary reasonable person would conclude that the purpose was to be evidence in a criminal trial at some later date.

Obviously, analytical documents are intended to show evidence at trial: mainly to document what substance the defendant possessed (or distributed etc) that they are charged with and going to trial.

It should be noted that the affidavit in question was prepared by the analyst and notarized as to what the content was and that the result was true and correct.  The court rules that this kind of evidence is not a business record (so that a hearsay exception might be established) and that as such a record the defendant may not be denied the opportunity to cross examine the witness unless such opportunity was available at a critical stage of the proceedings earlier.

I suspect that many proceedings will be analyzed anew under this opinion, since many jurisdictions have probably followed the Massachusetts trial courts procedures or are contemplating doing so.

Have we now got it right?  I would guess the great debate in future proceedings will revolve around the definition of evidence covered under the Confrontation Clause.  This clause has been found to apply to the States under the Federal Sixth Amendment (1962) and is frequently at issue.  Much of the focus in the state of modern technology including DNA and other chemical analysis will be in the process and procedure in dealing with the method and the sample itself.

Perhaps some jurisdictions will go back to the drawing board in writing their Rules of Evidence.  This probably will not be the last case of its kind as others will seek a narrowing clarification yet again.  The public might think this yet another guilty person who gets off free due to a technicality.  Perhaps questions about this case should be put to Sonia Sotomayor at her upcoming confirmation hearing.

The Patient with No Last Name

Federal regulations can make health care recipients feel strange.  At the clinic where I receive most of my care, the providers are told to call patients by their first names only at check in.  Image the fun when they call for David and 3 people get up.

This mess is caused by the interpretation given by the health care organization to HIPPA.  The worry is that we will suffer identity theft, even though most people have already used their last names to check in at the desk unless they took the trouble to write them down instead.

Granted, health care identity theft is a growing phenomena.  Protection of patient records and identities is an urgent matter and I support the effort made to safeguard data.

But  really, is the procedure in use at the clinic all that effective?  Isn't it just another stupid interpretation of a truly crazy and poorly written government regulation?  They could call patients by their last name only or by a first name and last initial.  That would be the approach I would take as the administrator of said clinics.  Customer service is very important and making the patient feel individual and important without violating their private medical record is a top priority. 

Patients that feel better about themselves heal themselves better.  And yes, we do heal ourselves no matter the technology or other procedures in process.  We have the power.

Dear President: How about we take the time to rewrite some of the crazy rules and laws?  Spend the time to really make it health care reform not just health care revision.

Pro et Contra Obama's Public Health Plan?

The President continues to push hard for health care reform now.  He still likes a public plan and states that if private plans are so good, why should the private plans worry  about the competition?

Perhaps, because the government can change the rules to suit itself and frequently does- check out TARP, bailouts, the banking system and on and on (even gitmo) seems routine and can surely make it difficult to compete.  While, some health care plans are no angels, they do have the fiduciary responsibility to all their members to utilize their limited resources for the betterment of all of them.

It is definitely a problem to deny care for previous conditions and certainly inhumane at times to watch what decisions are made.  We can fix these issues without a public plan.  We can subsidize and regulate plans both profit and nonprofit in various ways.  Promoting innovation and cost-sharing is one way, taxation and fee setting perhaps another.

Like most people, I am not troubled about the mere offering of a public plan.  However, I worry about the ability to keep the care we have in America today, which is relatively string-free.  It seems as if we can create using existing systems the ability to provide everyone preventive care.  It will take some work and perhaps the use of the existing Public Health Service combined with changes in how Medical Education is ran in this country.

• One has to admire Obama's attempt at using the Bully Pulpit to try to force the issue and expend his political capital to become a legendary leader.  It also tends to distract from the other major issues facing us these days:
• Rising unemployment
• Relative uncaring Banks and Mortgage lenders
• A coming tide of huge National Debt
• Iran
• North Korea and our lack of connection with China
• The coming changes in troop strength and location in Iraq.

But the completely intellectual exercise being performed by the President misses the very details and slog work that must be done in health care and ignores the very real danger of giving the government too much control over such a significant slice of the United States economy.

The large expenditure of capital to hire the people who would run the Public health plan is surely a concern.  Remember what President Reagan said: "Government is the problem" certainly when it comes to hiring more theoreticians and planners who have never ran anything before.

History will well record how we tackle these problems and the impact on society and the economy as a whole.  Let us take the time to truly deliver quality health care to everyone at a price that won't cripple the nation later.  This we can do.

VA Cancer Unit Failures Show Risks in Public Plans

The VA Medical Center in Philadelphia has been shown to have improperly performed radiation seed implants for prostate cancer in most of the patients treated.  The actions went unreported and under investigated by both the VA and the NRC.  Accreditation surveys by the Joint Commission did not uncover the lack of peer review and expertise in the unit.  Some patients were apparently seriously damaged required extra more invasive treatment and had their lives turned up side down.

This occurred in spite of the fact that the VA went with a private contractor for the publicly run VA Medical System.  The University of Pennsylvania is well regarded and it was expected that the outside experts would take care of everything.  Unfortunately, at least one Surgeon/Oncologist had little direct experience in the procedure and no one else peer reviewed his work or did other supervision during a several year period.

The Surgeon altered his operation procedure plans when it was discovered that the radioactive seeds actually ended up in the patient bladder or other nearby areas (causing radiation damage in some cases) and not certainly adequate to treat the patient's cancer.  The VA did not take aggressive steps to report or review these difficulties seeking in stead to keep things quiet.

So if a public plan can hire what seems to be experts in a system usually experienced in such matters and regularly working with Medical School Deans Committees and Graduate Education, how would that auger for a government wide public health plan?

Well, for sure there is a lack of expertise and similar calamities would likely befall these plans.

The VA Secretary must now act with great authority and thoroughness to keep these errors from reoccurring.  VA Senior Management is charged with running a medical system devoted to giving the very best care to our Nation's Veterans and being a model for a well run health care system.

As we can see, physicians and their leaders do not always do a good job of policing themselves and ensuring that mistakes are identified, analyzed and prevented from recurring.  We have seen the enemy and it is us.

For Once Holder and I Agree

Attorney General Holder supported additional DNA testing even if the Supreme Court is right in ruling that Alaska is not required to do so post-conviction as no Constitutional right attaches.

The AG indicates that doing what is right should be done in any stead, an opinion I wholeheartedly agree with.  See DA 3rd Judicial District v Osborne, USSC June 18, 2009.

The dissent, headed by Justice Stevens thinks the Constitution should allow for DNA testing to clear factually innocent and other wrongfully convicted persons as a matter of due process among others.

Many states have laws on DNA only 4 do not.  Alabama has a limited law for death row-only appeals that takes effect later in the year.

It seems to me as if states that have not passed any law should be held to a constitutional standard even if Chief Justice Roberts is correct in general when he urges that we not do so.  Contrast this with the Voting Rights Act appeals where we have kept states to the fire for many years even without overt evidence that they currently discriminate.  The same reasoning makes sense here where someone's fundamental right to life and liberty is at stake.

Due Process demands no less.  Certainly even as a taxpayer I would not wish to spend more funds keeping someone in prison (even if they may be bad people) when DNA can clearly eliminate them as the doer.

US Supreme Court Decides Age Discrimination Case

The US Supreme Court decided on June 18, 2009 the case Jack Gross v. FBL Financial Services in favor of the Defendant (Respondent) by a margin of 5-4. 

The opinion requires that Plaintiffs in ADEA (age discrimination cases) cases with no mixed motive exception must produce direct evidence of discrimination by the employer and that such evidence be the "but-for" cause of the discrimination.  The decision also notes that for ADEA cases as opposed to Title VII cases the burden never shifts to employers to prove no discrimination when the Plaintiff produces some evidence of an age related discriminatory motive.

Please see Case 08-441.
Would the replacement of Justice Souter with Sonia Sotomayor have made a difference?  No because the five member majority was Roberts, Kennedy, Thomas, Scalia and Alito.  Although her supporters might press the point that she is more persuasive than Justice Souter it seems unlikely based upon the precedent cited that any of the five could be convinced to be more "empathetic" in review of ADEA.

The opinion notes that Congress has amended both Title VII and the ADEA and specifically chose not to include mix-motive as a reason to uphold age discrimination.  Title VII under the Civil Rights Act of 1991 was modified while the ADEA was not to include the language supported by the employee.

The Plaintiff must show by preponderance of the evidence that the Defendant discriminated against the Plaintiff by the introduction of direct evidence on the point.

The ruling contrasts with Title VII cases of mixed-motive (some discriminatory motives and some alleged other motives for the action) for cases involving race, color, sex, religion, or national origin.

Would the result differ if President Obama succeeds in packing the court with justices similar to Sotomayor?  Perhaps.  No doubt we will be given the opportunity to observe in future years cases relating to employment law and discrimination claims.  Especially in this economy and the likelihood of a lengthy recovery period.

Newsweek's Samuelson Gets It Right on Health Reform

Robert J. Samuelson wrote an editorial column (I read it in the San Diego Union Tribune June 17,2009) entitled "Obama's Unhealthy Reform" that really tells it like it is.  The goals of Team Obama are not met in any of three categories.

We need competition and innovation in health care.  We also need to fulfill the goal of health care for everyone (at least the basics).  We would love to meet the goal of cost reduction, too.  Unfortunately, as Mr. Samuelson states we are not going about it at all in any of the published plans.

Let us note one thing further: using GDP per cent as a benchmark does not tell the entire story about costs nor does it tell the whole story about the economy.  The assumption that the percentage of the economy as relates to the the GDP assumes one thing further: that growth will stagnate and the GDP will not continue to rise much over the next ten plus years.   We might find that happening with the convenient excuse that health care killed the economy. 

The real thing that may kill the economy is to take away incentives to innovate and find cheaper and more reliable methods of diagnosis and treatment whether using high technology or not.  Like any other product, health care must compete on the open market (with heavy regulation to be sure) and must produce value for customers and a comfortable living for practitioners and shareholders.

The left most group postulates that we should have a single payor doling out benefits to everyone with out regard to region of the country or the need to advance and research new technology.  Better, would be to carve out niches in health care that are revenue neutral over time and allow other areas to be the profit center for the good health of all.

What drives the high cost?  Salaries compose about 70 % of the total and of course capitol investment in facilities and equipment takes much of the rest.  So how to save?

Reduce the costs associating with having to "go back in the shop" with repeated and layering of tests and procedures often taking little care as to whether the cost justifies the madness or actually creates better outcomes.  Better to spend more for a single test that has been tested and researched than to go for a scattered approach (some say to avoid malpractice- others say to increase profit margins by enhancing utilization) that lacks customer service and satisfaction and takes longer to boot. 

One thought  about improving the system by creating electronic health records.  Using any of the current proposed standards for this record will do little to improve health care delivery.  For a legal look at the matter please check out recent issues of the American Health Lawyer,  where it is recommended that we start anew with a new system.

I would go further and say we first need some competing technologies I dub "Health Record Producers" that can be controlled by the patient or their appointed ombudsman with ownership in the patient and technologist in partnership.  For the many health care illiterate, we will need a benevolent group to handle this to be sure, but it needs to be in the hands of the patient whenever feasible and in a form that is transferable between health systems (let us hope that plenty survive this reform era), secure from hacking, and in a practitioner friendly and understandable format. 

Federal funds would help in creating this Health Record Producer and of course the leading software manufacturers could help greatly and have the technological skills and infrastructure to carry this goal out if only we make a national priority.

New Pricetag of $1.6 Trillion causes health reform shift

Today it was announced that the actual price of health reform as originally conceived would top 1.6 trillion dollars.  So much for revenue neutral or pay as you go.  The question remains, to what extent will small businesses or "rich people" get taxed in order to pay for the Democratic dream. 

The order of the day seems to be compromise.  On everything.  The doctors are told they will get something but not the cap on non economic damages for medical malpractice lawsuits.  The poverty level for assistance goes up to 4 times the poverty rate or is it less?  Negotiation is all well and good if done over an extended period of time.  The fear I have is that this will be the "Oxley-Sarbannes" bill for health care: a huge number of poorly written and coordinated pages that cause consternation and even terror when attempting to balance individual and corporate rights translated into a haphazard system of paying for health care.

The stock market has already taken notice.  We see the fall of prices across the board now that the impending dome of high taxes and confusing legislation seems probable.  The Republicans simply do not have the pull to keep these bills from passing.  On can hope that there will be sufficient give and take that a significant minority of Republicans do vote yes.

The Obama administration keeps saying a big down payment has been made including a promised savings of 1 trillion dollars over the next ten years by the insurers.  The big guns are looking to completely eliminate private insurers and health plans altogether in a prelude to a single payor system that will promise one thing: to ration, ration, ration in order to save costs.

Now, elimination of worthless or non economical testing is a worthwhile endeavor.  However, what usually happens is that mandates go out to not perform in a certain manner nevermind what the skilled physician says in a particular case.  And while the general economy is in a down position, nothing in today's climate prevents health care inflation and the savings will end up after ten years, most probably, as revenue neutral.  Such a large sucking sound as the economy continues to tank, slowing any recovery to a crawl and endangering the long term interests of all America.

I keep asking why cannot Congress bite off less of the apple and concentrate on just getting care for all at least at the preventive and necessary levels.  Why cannot the oil companies and others who have reaped hugh profits help pay for this adventure instead of the taxpayers who stand to stall out the economy?  The must also be enough fat and unnecessary spending in the Defense bill and elsewhere (how much is it costing to hire czars including the cost of vetting them) and other elite program staff?

 We may never know if the bill is passed in too hurried a manner.  And if so, you can bet that the Representatives and Senators will NOT have read the bill they pass.

Medical Malpractice: A Thorn in the Side of Health Care Reform

I see where the Trial Lawyers 'Can Support' Medical Malpractice Ideas with a big proviso:  maintain the right of consumers to have the right to sue for serious malfeasance.  The AMA and some liberals would love to whack this right to sue whenever possible thereby saving serious money on malpractice insurance.

Here is the rub:  Doctors are notorious for not policing their own or not entering data required by the National Practitioner Data Bank.  There is not a pro-consumer site where one can learn about serious issues of care in all instances.  The best way to improve quality is to keep the occasional adventurer out of the operating or specialty care arena whenever possible.  Lack of experience can hurt you in this instance.  We know lots more about the cars we buy than the doctors we hire including quality and costs.  To be sure these are not always good indicators and vary widely from region to region based upon the cost of ancillary personnel and facilities.

Statistics show that the overall cost of health care is little impacted by lawsuits sounding in medical malpractice.  The doctors and others may want you to think that a grand bargain can be had by changing the law- but really what they are after is the bottom line.  To be sure, insurers are not always the most fair in establishing rates for malpractice insurance and regulators should be able to come down hard on those with shoddy business practices.

Likewise, it does not make sense these days to require doctor to postpone making a good living until middle age (what with the amount of student loans they are so often saddled with to get through the training) and compensation systems in place now tend to try and make up for that indignity.

I propose that the government (federal and state) pay a portion of their training expenses perhaps even 100%.  We should also consider subsidizing the huge premiums for medical malpractice insurance for the specialty provider in return for getting a flatter compensation system throughout- a practice that might in the long run reduce health care costs and certainly limit inflation.

What about the current tort system (and this includes the monster of mandatory arbitration) for medical malpractice?  There should be more give and take between patient and provider in a non threatening climate to get rid of the cases that should not go to trial, yet it appears that some compensation is owed.  Doctors should not have their livelihood and reputations ruined just because the outcome was less than perfect or some unexpected medical crisis causing injury occurs.

One solution: have a separate court system where costs are low enough to enable the patient to have legal representation without breaking the bank.  At the same time keep costs low enough so that health care plans do not play extreme hardball when there is some doubt as to the standard of care rendered.  Screen out marginal cases with a no fault plan where some additional care will be required and do so without reporting every single event to the NPDB. 

At the same time, the system must police physicians (and health systems, too, where they not the doctor seem to have erred) and either get them retrained under a restricted privilege supervised by experts or obtain an agreement for them to give up certain privileges forever or at least make them reapply under stringent scrutiny.  And the really bad ones should perhaps be sent to run for office instead.

Many times, as research has shown, the patient would have been happy to get an apology.  And most attorneys want only to make the seriously injured patient whole (although they need to earn a living too) and treated fairly- this does not seem to happen now.

We must bring Medicine out of the dark ages of no information being available and strive to improve quality by thoroughly reviewing outcomes and making the information (with some redaction perhaps) available to the public in formats understandable to us.  Let us concentrate on doing the care that works and getting rid of the care that is ineffective and costly.

Will this be done overnight? No.
Can a single bill called "health reform" fix all these issues?
No.  It will take time and effort and maybe even a whole lot of luck.