Defensive Medicine: NOW It’s an Issue

By | Briefly Legal, Health Care | No Comments

From AP, “Study: Malpractice worries help drive health costs“:

NEW YORK — A substantial number of heart doctors — about one in four — say they order medical tests that might not be needed out of fear of getting sued, according to a new study.

Nearly 600 doctors were surveyed for the study to determine how aggressively they treat their patients and whether non-medical issues have influenced their decisions to order invasive heart tests.

Most said they weren’t swayed by such things as financial gain or a patient’s expectations. But about 24 percent of the doctors said they had recommended the test in the previous year because they were worried about malpractice lawsuits.

That would be a good issue to address in federal health care legislation, don’t you think?

Hat tip: Bob McCarty Writes

CPSC Commissioner Northup on CPSIA, Lead

By | Health Care, Regulations | No Comments

Hugh Hewitt, the radio talk show host, blogger, law professor and all-around good guy, on Monday interviewed Commissioner Anne Northup of the Consumer Product Safety Commission, and the transcript of the conversation is now up at HughHewitt.com.

Hugh accurately expresses the astonishment and frustration of business people in trying to figure out and respond to the Consumer Product Safety Improvement Act (CPSIA), and Northup, a former Republican member of Congress, confirms that the law is excessive, complicated and disconnected from reality. The discussion of lead content is good, and we appreciate her reaction to efforts now under way in Congress to “fix” the CPSIA.

HH: And the regulatory burden, I know, because many of them are our clients, people don’t know how to interpret this. They write in, they have to hire expensive lawyers to go get exemptions from you. It must be a morass at the building.

AN: Well, and we’re not giving any exemptions. So far, there hasn’t been a vote to give exemptions. And so they’re trapped in figuring out how they’re going to make this. And you know, I think there’s the ATV, the bicycle people, I mean, who sucks on their bicycle handlebars at six years old? And you know, even if you did, you couldn’t swallow enough lead that it would register a change in your blood lead level.

HH: And Congress won’t fix it. I saw Chairman Waxman has proposed an amendment on your blog, and your blog has dissected it. It’s not really that helpful. In fact, it might make things worse.

AN: It really isn’t helpful. It’s really meant to solve the political problem he has from the ATV people. They obviously are very organized. It’s very serious for them. They have children’s, smaller ones that are safer for children, and they’ve had to take them off the market. But you know, I mean, it has all these hoops you have to jump through. You have to prove that you can’t make it officially, you can’t make it, that it’s not practical, that there’s no substitute material, you have to say how you’re going to get into compliance over the next few years, you have to prove…here’s what’s funny. I think the third qualification is you have to prove that it doesn’t harm the health or safety of a child. Well Hugh, if it doesn’t harm the health or safety of a child, why are we even regulating it? What else do we have to prove?

The conversation occurred at a meeting of the Sporting Goods Manufacturers Association. Hewitt also addresses a topic we’ve broached before: If Congress can’t get the CPSIA right, how can it expect to restructure the entire U.S. health care and insurance system?

Trial Lawyers Celebrate Health Care Laws: We Won!

By | Briefly Legal, Health Care | No Comments

An editorial in The Washington Times today notes President Obama’s prominent pledges of being open to adopt Republican-supported plans for medical liability reform in the health care bill. From “Trial lawyers love Obamacare“:

Those pledges – which Mr. Obama made twice in major public forums – were worthless. The final version of Obamacare, as signed into law, is a dream come true for big-money plaintiffs’ lawyers.

That was the message in a letter the president of the American Association for Justice wrote to his membership and posted on the group’s Web site. The misnamed AAJ – which was formerly and more accurately called the Association of Trial Lawyers of America – is the house organ for the national plaintiffs’ bar and a major source of campaign cash for congressional Democrats.

Reporting on reformers’ efforts to protect doctors and hospitals from predatory lawsuits, AAJ President Anthony Tarricone wrote, “I am very pleased to report that the health care bill is clear of any [such] provisions. … While there is a provision for demonstration projects, it provides an absolute opt-out clause for plaintiffs at any time.”

Tarricone’s tone is boastful and his claims dishonest. From his e-mail message, posted at the AAJ website.

Whether reading the newspaper or watching C-SPAN, all of you saw the constant assault against trial lawyers and injured patients. Many opponents of these health care bills had no substantive solutions of their own, and in turn, levied attacks on our clients. It was distressing, but at the same time, it was our call-to-action.

Who attacked injured patients? Who levied attacks on the AAJ’s clients? No one we ever saw. The charge is  just big lie buncombe. As for “no substantive solutions of their own,” we direct you to the National Association of Manufacturers’ health care principles, which highlights substantive solutions to the failures of U.S. health care, it should go without saying, do not attack injured patients. Separately, Republican members of Congress proposed detailed alternatives to the President’s plan, including medical liability reform.

We do not yet find the final statutory language on the state demonstration projects, but the Kaiser Family Foundation has summarized the provision:

Medical malpractice * Award five-year demonstration grants to states to develop, implement, and evaluate alternatives to current tort litigations. Preference will be given to states that have developed alternatives in consultation with relevant stakeholders and that have proposals that are likely to enhance patient safety by reducing medical errors and adverse events and are likely to improve access to liability insurance. (Funding appropriated for five years beginning in fiscal year 2011)

What’s missing? Any provisions addressing cost control. And for that, the trial lawyers are celebrating.

More …

A note about media coverage: The Point of Law post was written by this blogger, and Legal NewsLine is a web publication backed by the U.S. Chamber of Commerce. The Washington Times piece is an editorial.

So the only major media outlet to cover as news the trial lawyers’ boasting about blocking health care reform is The Wall Street Journal. A salute to the WSJ, but where are the other reporters who are usually so quick to decry the role of special interests and lobbyists in the health care debate?

Company Accounting Charges Will Reach $14 Billion

By | Health Care, Taxation | No Comments

From the American Benefits Council, which represents large U.S. corporations, a news release, “Exorbitant accounting hit to businesses will continue unless health law’s retiree drug subsidy provision is reversed“:

“For months, the American Benefits Council, along with several employers and labor unions, warned that the retiree drug subsidy tax in the health care legislation would impose an enormous hit on company financial statements as soon as the bill was signed into law,” Council President James A. Klein said today. “The recent announcements by major U.S. companies have captured Wall Street’s attention, while the Obama Administration fails to acknowledge their significance. Since the president has made clear that job creation is his top priority, we urge the Administration and Congress to remove this obstacle to economic recovery.

And …

“Over the next several days, many companies will be compelled to either take a hit on their earnings or decide to move retirees into the Medicare Part D program.” Klein said. “As our recent research report clearly shows, as more retirees are moved from employer plans to Medicare Part D, government outlays will increase, and the shift from employer retiree drug subsidy programs to Medicare Part D is likely to be significant. In the end, this so-called revenue raising provision may actually cost the government money.” A separate study, conducted by the Towers Watson consulting firm, reported that unless companies change their benefit plans, the aggregate accounting charge would be nearly $14 billion.

Safe prediction, Mr. Klein. Today’s news is: “Boeing Expects $150 Million Charge In 1Q For Health-Revamp Impact.” More …

A Week’s Review of Labor’s Power

By | Health Care, Human Resources, Labor Unions | No Comments

Mark Hemingway of The Washington Examiner embarked Monday on a weeklong series of columns about the political power of organized labor, commenting that, “Whatever wants, labor gets.”  It’s hard to argue with the thesis when talking about the Obama Administration, but it’s not entirely true when elective representative bodies like the U.S. Senate are involved: Labor has not gotten the Employee Free Choice Act…so far.

Today’s column is “Big Labor fills the ranks of Big Government,” discussing the recess appointments to the National Labor Relations Board, the confirmation of Patricia Smith to be the Department of Labor’s solicitor, and Secretary of Labor Hilda Solis herself.

On Monday, Hemingway wrote, “Stuffing union coffers with taxpayer cash,” leading with the example of the anti-democratic unionization of daycare workers in Michigan.

One day last fall, approximately 40,000 private day care owners in Michigan woke up to discover they had become members of a public sector union. Most had no idea what was coming.

Here’s how it happened: The United Auto Workers and the American Federation of State, County and Municipal Employees worked with the Michigan Employment Relations Commission to conduct a vote-by-mail union election.

Of the 40,000 day care workers in the state, only 6,000 responded to the ballot they received in the mail. But that was enough for the state to declare all of the day care owners would henceforth be represented by the newly organized Child Care Providers Together Michigan union.

Governor Ted Kulongoski of Oregon and former Governor Eliot Spitzer of New York also signed executive orders to promote the unionization of private sector daycare workers in their respective states. (See Fordham Urban Law Journal.)

The actions by these governors, heavily supported by organized labor, seems even more economically ominous given a program included in the new health care law. Jeffrey Birnbaum in The Washington Times reports on the issue in a column, “The not-so-Class Act“:

The health legislation signed into law last week by President Obama includes a provision called the CLASS Act, which provides long-term care at home. Few people know about it, but experts agree that it could well explode the federal budget deficit down the road.

The Community Living Services and Support (CLASS) Act was designed to assist people who need help with basic daily tasks and are willing to pay for in-home assistance. The plan, which was long championed by the late Sen. Edward M. Kennedy, would, in effect, enable elderly and disabled people to stay out of nursing homes.

People who paid into the program for five years could qualify for federal subsidies to purchase in-home care. As Birnbaum argues, laudable goals but fiscally unsustainable. We predict when the rules are written, the only in-home care providers eligible for the program will be subject to (forced into) union membership. The SEIU smiles.

Doing for Energy and the Economy What Health Care Reform…

By | Energy, Global Warming | No Comments

Former Vice President Al Gore seizes on enactment of the health care law as the example of sweeping change he hopes to accomplish by limiting the emissions produced by economic activity.
In an e-mail to subscribers to the Repower America list, entitled, “The fierce urgency of NEXT,” the Veep says:

Health care reform is the law of the land, and its inspiring passage has made one thing clear: At this moment in America, sweeping change really is possible.

And sweeping change is exactly what it will take to address the climate crisis and fight for clean energy here at home and around the world.

That’s why we need to seize this new momentum right now. Repower America has a strong game plan to make this happen in the weeks ahead — but we can’t do it without your participation and your support.

In recognition of this crucial moment, a generous donor has agreed to match every gift we receive between now and midnight on March 31st dollar-for-dollar.

So donate now.

Vitamin D Critical to Good Health; New Tax Hits Tanning Salons

By | Health Care, Taxation | No Comments

NPR’s “Morning Edition” news magazine this morning carried a segment about doctors who now regard Vitamin D deficiency as a major health problem in the United States, but one easily treated.

“There’s overwhelming evidence … that increasing your vitamin D intake can make substantial improvement in your overall health and welfare,” says Dr. Michael Holick of Boston University. “And there is no downside to increasing your vitamin D intake. As a result I think that most people are now getting on the bandwagon.

Holick is leading the band. Forty years ago, he discovered the active form of the vitamin, 1,25-dihydroxyvitamin D. He has written several popular books on the subject and has another one, The Vitamin D Solution, coming out next month. Its cover calls vitamin D deficiency “our most common health problem.”

Meanwhile, in the new health care bill…

The Campaign Continues

By | Briefly Legal, Health Care, Labor Unions | No Comments

Politico, “Next front: Selling what Congress did:

Starting Monday, a coalition of progressive groups — from labor unions to health care advocates — will sink millions of dollars into television advertising and sponsor grass-roots events in swing House districts thanking Democrats for passing the law and highlighting its importance for average Americans.

“We’re going to let our friends know we are going to be there for them,” said AFSCME President Gerald McEntee. “We expect in three months, the American people will understand the bill and they will be happy and satisfied with it.”

More on Rep. Henry Waxman demanding companies explain their accounting charges for health care, from Andy McCarthy, a former U.S. prosecutor, at National Review’s The Corner, “Thugocracy Whipsaws Capitalism“:

I worked for many years in the U.S. Attorney’s Office in whose backyard was Wall Street.

If a company like AT&T failed to make a legally mandated restatement of its financial position while continuing to participate in the capital markets, it would be investigated and the responsible management officials would likely find themselves prosecuted while the SEC, concurrently, went after the company and its officials in civil enforcement suits. There are prosecutors and investigators who would salivate at the prospect of doing such a career-making case.

If we are now under a system where disclosure gets you a public whipping and other threats by the Powers That Be while nondisclosure promises the ruinous expenses of defending against criminal investigations and civil enforcement, this is no longer anything but a thugocracy.

If history is any guide, we’ll soon see inventive class action lawyers join in the harassment, suing companies that make the accounting charges.

Companies Start to Pay for Health Care Law, Accusations Fly

By | Economy, General, Health Care | No Comments

Chairman Henry Waxman (D-CA) of the House Energy and Commerce Committee is calling major corporate executives to a hearing to challenge the accounting charges their companies have made in response to passage of the health care legislation. (Bloomberg, “AT&T, Deere CEOs Called by Waxman to Back Up Health-Bill Costs.”)

From the committee’s homepage:

The Subcommittee on Oversight and Investigations will hold a hearing on April 21, 2010, regarding claims by Caterpillar, Verizon, and Deere that provisions in the new health care reform law could adversely affect their company’s ability to provide health insurance to their employees. These assertions appear to conflict with independent analyses, which show that the new law will expand coverage and bring down costs.

They’re not “claims,” they are financial and accounting decisions the companies are required by law to make and report. President John Engler of the National Association of Manufacturers addressed the company charges in an interview with Fox News’ Neil Cavuto Friday. Engler:

There was a suggestion, “Oh, these companies are overstating this, they’re making it up.” But, remember, the CEO and the CFO sign …under Sarbanes-Oxley under penalty of law the accuracy of the statements. They cannot make this up. Cannot!

The Administration originally tried to spin the charges as hyped or “irresponsible,” but the White House has obviously decided to change its approach. White House economic advisor Valerie Jarrett was just on ABC’s “This Week,” and she responded to the questions about the company charges as serious ones warranting a serious response.

Jarrett argued the companies will benefit more in the big picture, long run, from the health care legislation even with the charge offs. And, she continued, the White House has talked to the Business Roundtable during the drafting of the health care legislation, and agreed with the group’s request to delay parts of the law’s effects until 2013. So the White House now, after a little hemming and hawing, clearly regards the companies’ actions and businesses’ objections as legitimate.

If there’s anything that’s suspect, it’s the always hyperpoliticized accusations of the Oversight and Investigations panel. As The Wall Street Journal editorialized Saturday in “The ObamaCare Writedown“:

Black-letter financial accounting rules require that corporations immediately restate their earnings to reflect the present value of their long-term health liabilities, including a higher tax burden. Should these companies have played chicken with the Securities and Exchange Commission to avoid this politically inconvenient reality? Democrats don’t like what their bill is doing in the real world, so they now want to intimidate CEOs into keeping quiet.

Willkommen, Bienvenue, Welcome

By | Health Care, Taxation | No Comments

An increasingly popular analysis of the impact of the new health care law: