Tuesday, June 30, 2009

It's A Mad Mad Mad Mad Mad World

Some days I just don’t get it. I look at the headlines and I wonder if I am insane. Take a look at these recent headlines. . .

Exhibit A: “Oklahoma City woman trades sex for chips.” Now I’m not exactly sure what this means: did she give someone chips to get sex, or did she receive the chips, or am I reading this entirely wrong and she agreed to give up sex for these chips? In any event, this strikes me as a really bad sign for the value of the dollar. . . or as more proof that you can’t eat just one.

Exhibit B: “Monkey urinates on Zambian president.” Good times in Zambia! According to the article, Zambian President Rupiah Banda, known for his wit, told the monkey, “You have urinated on my jacket.” The monkey declined comment.

Exhibit C: “The Pentagon Approves Creation of Cyber Command.” I understand they're calling it ARCADECOM, which is better than Skynet.

Exhibit D: “Nudism Is A Green Vacation.” There are 1.5 million nudists in France, and they want you “textilists” to join them. They claim that nudism saves laundry costs. But how would they know? They’re French.
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Through The Legal Looking Glass--I Object (Part 2)

Welcome back to legal land, the world of fantasy and fun acting as the underpinnings of the concept of ordered liberty. On June 16, 2009, I covered the first half of the most common objections to testimony raised in court. This time I'll finish with the objections, and add a few notes about what you see on TV and in the movies versus how it works in real life.

Earlier, I covered most of the major objections to testimony. Now I'll address a few more which are common, but not as well known to those who have never served on a jury. As a reminder, we are dealing with testimony in civil cases only. Criminal law is a different breed of cat, with its own unique objections along with all the civil objections.

Occasionally, you will hear the objection "foundation" or "improper foundation." This means the attorney has tried to ask a question which requires prior physical evidence or expert testimony which has not been introduced. A simple example would be an attempt to ask a question about a photograph without first having established what kind of photographic equipment was used, who took the picture, what photographic methods were used, and when it was taken in relation to the matter before the court.

Most foundational questions are handled in pretrial conferences, and the attorneys stipulate that the evidence may be introduced without objection at trial. But until this has been done, or the foundation properly laid out in court, the attorney may not question the witness concerning the photograph. So when you see Brad Pitt or Tom Cruise whip out a photograph, demanding to know if the witness has ever seen it, with great drama and excitement following this sudden revelation, you have been bamboozled. It simply does not happen like that.

Often movies and TV shows depict witness testimony as one long series of questions from both attorneys seeking to get information without any regard for what went before. That does not happen. The attorney who calls the witness originally conducts what is called direct testimony. This is followed by cross examination. The second attorney cannot ask a question about any testimony which was not first addressed in direct examination. The objection is "beyond the scope of direct."

An informal, but very legitimate objection which is covered by other more formal objections does show up in drama and real courtrooms. You will hear "counsel is testifying," or "counsel is making a speech." That's a no-no, and when you see one of those long, rambling speeches posing as a question in a drama, it's there for effect, not for depiction of courtroom reality.

An objection which may confuse the average viewer because it sound so obvious is "best evidence." Of course we want the best evidence. But that's not what the objection is about. When an attorney asks a question about a document, that document must already have been admitted into evidence. And the "best evidence" is the original document. Unless the attorney eliciting the testimony has established a sound legal reason why the original document is not being produced, and that the document that is being produced in its place is fully verified and valid, no testimony regarding the document will be allowed.

When an attorney asks "did you go into the ABC store at 4 PM on the date in question" and the witness replies "I ordinarily don't go into that store at all," the witness has not answered the question asked, and the attorney will object "non-responsive." If the witness continues to do the same thing even after the attorney's objection has been sustained, you will sometimes hear the attorney say: "Your Honor, may I request that you order the witness to answer the question?" At this point the judge will intervene, and if the witness is truly determined to avoid answering the question, the judge can be quite harsh, up to and including a citation for contempt. Furthermore, for the record, the attorney will usually move the court to strike all the non-responsive answers.

And NOW, for the one that is so commonplace, and so frequently misunderstood: Hearsay (as distinguished from heresy, which is heard in another court entirely).

What is hearsay? It's an ancient rule of common law that says nobody can testify to what somebody else said, saw or heard. The most frequent way of phrasing it is "an out of court statement offered to prove the truth of the matter stated therein." My home state of California defines it as follows: Cal Ev Code, Sec 1200(a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissable. (c) This section shall be known and may be cited as the hearsay rule.

John cannot ordinarily testify that he heard Joe say that Fred caused the accident. Joe and Fred both need to testify, or nothing they said will come into the record. Unfortunately, the next twenty sections of the evidence code list all the exceptions to the rule. That is a discussion which could fill two or three more posts, so I will defer that to another time. I will simply state a few of the most common. If the witness is testifying to what another person said, and what that person said would be considered reliable because it was testimonial proof that the other person was saying something detrimental to himself, it is frequently allowed. For instance, Joe is a witness at an accident scene. John was the driver of one of the cars involved in the accident. At the scene John says "I ran the red light and didn't see the other car." That is called an "admission against [pecuniary] interest" and the court will usually allow Joe to testify to what John said.

Another exception is "excited utterance (spontaneous declaration)." Joe hears John say "Oh, my God, I threw that rock, but I didn't expect it to break the window and hurt anyone." Joe will probably be allowed to testify to what he heard John say. The reasoning behind this exception is that without coercion and time to reflect, nobody would say such a thing unless it was the truth.

In a contract lawsuit, you might think that Joe testifying that John said "I accept" is hearsay. But Joe is only testifying that the words were said, not that they were true, and thus it is an exception to the hearsay rule. Other common exceptions are "past recollection recorded" in which the testimony is from something said (and written down) at an earlier time. The "business records" exception allows testimony about records prepared in the ordinary course of business without the necessity of calling the person who actually made the records. Things like marriage and baptismal certificates are routinely allowed in without testimony from those who prepared the documents. And beside all the exceptions allowed by individual states, the federal rules just cut straight to the chase and created the "catchall exceptions."

So how much do the objections in the real world of the courtroom differ from those you see in staged dramas? More than you might imagine. All the shouting, arm-waving, and loud arguments are non-existent. That's just TV and movie stuff. In most courts "objection" is all you'll hear. In some courts, a brief comment is required to go with it stating the simple ground for the objection. In that case, you will hear "objection--foundation." The judges want shorthand, not lengthy speeches. If the other attorney truly believes the objection is improper, he is given the opportunity to simply say "the objection is not well-taken because . . . . " The judge will often simply sustain or overrule the objection, and everybody moves on. Often, the attorney who has asked the question improperly will be told to "re-phrase." But if the judge wants further argument, he will call the attorneys to the bench ("counsel, come to the bench," or "counsel, sidebar"). If the judge thinks the jury is in any way being affected by the colloquy going on outside their hearing, he may take the argument into his chambers out of the sight and hearing of the jury. And in complicated legal wrangling over objections, the court may simply defer its ruling for a few hours or days, and require the attorneys to return with research and briefs on the topic.

The more experienced the attorneys, the less likely you are to see constant objections being raised. Some basic rules of thumb determine when an objection will be raised. The lawyer should feel fairly certain that the objection will be sustained. The objection may be raised if the testimony would be damaging to the case to such an extent that failure to object would be more dangerous than risking the objection being overruled. There will be an objection if the witness is testifying in a misleading way which damages the client's position seriously. Tactically, an attorney may object if a long stream of genuine but harmful testimony is being obtained, and the attorney simply needs to disrupt the roll the opposition is on. Sometimes, the purpose of the objection is to preserve a record of pretrial motions or a previous similar objection.

So why would an attorney not object? The objection might be valid, but it is on a point that is harmful but not deadly, and an overruled (or even sustained) objection would only call attention to the opposition's position. Or the objection is valid, but only slows things down since the testimony will come in anyway, just by a longer route. As a practical matter, jurors tend to get short-tempered with attorneys who slow the proceedings down with constant objections, no matter how valid. And sometimes the attorney will want to listen to an entire line of testimony to see if it could be fatally flawed overall. In that case he will defer his objection until a point at which he can object, and have all or the major part of the testimony stricken from the record. Alternatively, if the attorney objects and is overruled, he may say "Your honor, I will defer further objections to this testimony subject to a later motion to strike."

You are all now experts on testimonial objections. So the next time you see your TV or movie lawyer make an improper objection, make a speech during the questioning period, or violate the rules of evidence, I expect you to stand up, get out of your chair, face the TV or the movie screen and shout: "I'm as mad as hell, and I'm not going to take this anymore."
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Monday, June 29, 2009

RTRP Health Care: Quality Control

Today we finish outlining the problems our health care system faces. We have previously discussed costs and access. Today we address poor quality control and preventable medical errors.

Our system suffers from wasteful over-treatment, exposes patients to an amazingly high risk of under-treatment, and results in an incredible number of preventable injuries. The existing mechanisms for monitoring quality control are simply inadequate.

Over-Treatment Wastes Billions

As noted previously, over-treatment, i.e. the providing of medically unnecessary tests or procedures, wasted $500-$700 billion in 2007. Yet, as also shown, only a small portion of that amount -- between $6 billion and $66 billion -- can be attributable to defensive medicine, i.e. lawyers. The rest, according to a study by Dartmouth’s Institute for Health Policy and Clinical Practice, was caused primarily by the lack of clear national standards. Indeed, recent studies have shown that many doctors lack adequate information on the risks/benefits of common treatments.

This leads to inconsistent care, including both the over-treatment mentioned and under-treatment. Under-treatment occurs when patients do not receive care that is both cost effective and medically effective. For example, the Dartmouth study found that patients had just a 50% chance of receiving flu shots, where appropriate, or receiving aspirin or beta-blockers following a heart attack, or receiving antibiotics to treat pneumonia, even though these treatments are inexpensive and are well known to improve patient health in those situations.

Another recent study, found that doctors fail to tell patients about abnormal test results 7% of the time -- 1 out of every 14 tests. This study, of the records of 5,000 patients who were tested for high cholesterol, diabetes, colon cancer or breast cancer, found significant variances in the performance of doctors, with some failing to inform patients as often as 26% of the time. This inconsistency frustrates early diagnosis, which is the key to effective treatment.

Preventable Medical Injuries

More significantly, however, the lack of standards and poor supervision/ oversight lead to a vast number of preventable medical errors each year that result in significant injuries.

A study by Healthgrades of 37 million patient records from 2000-2002 found that an average of 195,000 hospital deaths each year were the result of preventable medical errors. (A prior, smaller study by the Institute of Medicine estimated that medical errors cost 98,000 lives in 1999.). According to Healthgrades, even a 20% improvement in just the areas of failure to rescue, bed sores, postoperative sepsis and postoperative pulmonary embolism could alone save 39,000 people each year.

A 2006 study by the Institute of Medicine found that 1.5 million preventable drug-related injuries occur each year.

A 1997 study published in the American Medical News, estimated that cost of treating injuries resulting from medical error could be as high as $200 billion annually, and adversely affect the lives of tens of million of Americans. Bringing this figure forward to present day dollars would yield $520 billion, and this figure does not take into account lost wages, lost productivity or other non-treatment costs.

So why aren’t the current oversight mechanisms working?

Boards of Medicine Are Failing At Policing The Profession

The groups primarily tasked with ensuring the quality of health care in the United States are the state medical boards. However, these boards show a wild variation in disciplinary rates, a variation one would not expect if they were maintaining a consistent level of quality.

For example, in 2001, fourteen states and the District of Columbia disciplined less than two physicians per 1000. D.C. disciplined 0.73 per 1000. At the same time, the top ten states disciplined more than five physicians per 1000, with Alaska disciplining 10.52 per 1000.

That is 14 times the rate of the District of Columbia Medical Board. So unless you believe that Alaska doctors are simply 14 times more dangerous than D.C. doctors, then it is clear that a different level of oversight is being applied in different states (there is no regional pattern to this data either).

This data raises serious questions about the extent to which medical boards are protecting patients from bad doctors. Indeed, concerns have been raised about (1) whether these boards are adequately funded and staffed, (2) whether they conduct appropriate investigations, (3) whether they are independent of state medical societies and political influence, and (4) whether the disciplinary structure is itself reasonable.

Hospital Oversight Is Even Worse

Changes in the law have allowed hospitals to escape liability for the actions of doctors by separating themselves from the doctors. Thus, more and more doctors are being made independent contractors of the hospital, with the limited oversight that entails. And while hospitals ostensibly monitor doctors when deciding whether or not to extend or revoke hospital privileges, these credentialing committees are slow to revoke privileges, because they are more concerned with legal maneuvers than doctor oversight. Indeed, there is a perception that being too aggressive about oversight will lead to litigation, either by doctors or by patients who learn that their doctor was suspended.

Medical Malpractice Fails As Quality Control

Some (mainly lawyers) argue that medical malpractice serves the function of ensuring quality control by providing doctors with an incentive to take appropriate care. Thus, they oppose anything that reduces their ability to sue doctors.

However, the Congressional Budget Office rejects this reasoning. According to the CBO, “it is not obvious that the current tort system provides effective incentives to control such injuries.”

For example, the CBO notes, health care providers generally are not exposed to the financial costs of their own malpractice, because they carry insurance. Moreover, the evidence shows malpractice claims are far too few to provide an effective deterrent. According to the CBO, of the 27,179 estimated instances of malpractice in New York in 1984, only 415 (1.5%) resulted in claims being made. Therefore, it is likely that malpractice provides little incentive for providers to exercise greater care.


Thus, effective reform must:

1. Reduce over-testing,
2. Improve compliance with the standard of care,
3. Reduce the number of preventable medical injuries, and
4. Find an effective manner to oversee the medical profession to ensure quality control.
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Membership Drive! Let’s Do Billy Mays Proud

I liked Billy Mays. Many of us did. He was compelling, magnetic. He seemed genuine. Maybe it was his boundless enthusiasm or his constant smile, but he just seemed like the kind of guy you wanted to know. And somehow, no matter how suspect the product, you wanted to trust him.

In many ways, he was the quintessential American. . . proof that hard working Americans can achieve the American dream.

Mays started out selling products face to face on the Atlantic City Boardwalk, before he began crossing the country selling at state fairs. In 1993, he was hired to sell Orange Glo International on the Home Shopping Network, where he made good use of the skills he had refined through years of hard work. Soon he became America’s pitchman.

Interestingly, Ronald Reagan did the same thing, crossing the country to give speeches for General Electric, before using the skills he developed to such great effect in politics.

So how do we best honor Billy Mays? Obviously, we sell something. This week only, we are selling memberships! And best of all, they are absolutely free!

You heard me right. . . free!

All you have to do is sign up for a free Google account (click "sign in" down under the "followers" on our page and follow the instructions to create a new account -- don't forget to tell 'em that Commentarama sent you!). Then hit "follow" in the same place. Bam! You’re a member.

After that, you can tell your friends! You can tell your family! Your brain will feel stronger. Your world will be happier. Even your food will taste better!

We’ll even throw in the right for you to make your own Commentarama T-shirt (one per customer, offer void where prohibited).

And we stand behind our product. If you aren’t completely satisfied with Commentarama for any reason, we’ll let you “unfollow” at no charge! (Just pay processing.)

Do it for Billy!
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Sunday, June 28, 2009

Democrats Bust A Cap In Prosperity’s As~

Friday, Congressional Democrats, with the help of eight “Republican” stooges sold out the United States economy, middle America, and the nation’s poor in the name of not-fixing a non-problem. Here is what you need to know about the euphemistically titled American Clean Energy and Security Act (aka cap and trade).

Why did they do this?

Short answer: they don’t like you. Longer answer: Environmental theologians, like Al Gore the Prophet, believe that carbon dioxide, a heat-trapping "greenhouse" gas, is the primary cause of global warming.

They note that carbon dioxide emissions from the burning of oil, coal, and natural gas constitute about 80% of all man-made greenhouse gasses in the United States. Moreover, they note that man-made carbon emissions have increased worldwide more than 70 percent since 1970, and are now 40-45% higher than they were at the start of the Industrial Revolution. And they want this stopped. The Democrat’s cap and trade system, supposedly, will cut those emission, which will reduce the amount of greenhouse gas in the air, and will therefore prevent global warming.

So will it work?

Many people think it will. Indeed, a full 63% of Americans believe that human activity is the greatest source of carbon-dioxide emissions. But then, a 2006 survey found that 70% of Americans couldn’t find Iraq on the map, despite that whole war thing, and 33% couldn’t find Louisiana, despite that whole Katrina thing.

Perhaps we should ignore uninformed opinion and instead look at some facts? And here is one: human-caused carbon emissions come to a grand total of 3.27% of all carbon emissions. That’s right, 3.27%. The rest are caused by the decay of “biomass” (i.e. dead trees, leaves, etc.) or are released through volcanic activity. Thus, cap and trade will only affect a maximum of 3.27% of the problem.

Can reducing that 3.27% solve this problem? No. Ask yourself, if you are ten feet under water, with an additional foot of water being added every minute by a waterfall and an additional inch of water being added by your friend with a bucket, do you really think you can solve the problem by asking your friend to switch to a smaller bucket?

(For our congressional readers, we have a crayon-ready picture version of this last paragraph available upon request.)

But wait. . . there’s more!

They’re not even trying to fix the full 3.27%. No, indeed. Why? Because the Kyoto treaty, which is what Obama is trying to implement through this cap and trade scam, excluded developing countries (i.e. real polluters) from having to cut back their own emissions. Thus, China and India don’t need to make any cuts at all. Guess which country is the world’s biggest polluter? If you said China, then you’re too smart to be a Congressman. China accounts for 28% of the world’s pollution, and is growing rapidly.

So now we’re not even talking about fixing the 3.27%, we’re talking about fixing some portion of about twenty percent of that 3.27%.

Think of it this way: your neighbors’ cars belch out black smoke all day, but we’re going to “fix” the air quality problem in your neighborhood by making you drive your new Prius 10% slower.

Ok, what’s this going to cost?

The Democrats have been pimping a cost figure produced by the Congressional Budget Office that found that this legislation will cost the average household only $175 a year by 2020. Or as Ed Markey (D-Twilight Zone) claims, this will “cost less than a postage stamp a day.” Of course, that’s a lie.

The CBO study looked only at the cost of operating a trading program, it did not examine “the potential decrease in gross domestic product that could result from the cap.”

In other words, it only counted what the government will spend administering the program, it did not count how the program will affect the rest of us. This is like me claiming that I can reduce your grocery bill to $120 a year if you pay me $10 a month to buy groceries for you with your credit card. See the problem? If not, send me your credit card.

So what will it really cost? The Heritage Foundation estimates that this law would

• cost the economy $9.4 trillion in lost GDP by 2035,
• destroy an average 1.2 million jobs per year,
• increase electricity rates by 90%,
• increase gasoline prices by 58%,
• increase natural gas prices by 55%, and
• will result in an overall cost to the average family of four of $6,800 per year (more than half of what they currently spend on health care).
And if you don’t want to believe the Heritage Foundation, consider that the prior version of this bill, the Lieberman-Warner bill, died after it was determined that bill would

• cost the average family $6,752 per year,
• increase the costs of gasoline 144%,
• increase the price of electricity 129%, and
• eliminate 4 million jobs.
Moreover, the Lieberman bill had significantly lower goals than the current bill (reducing emissions by only 70% instead of 83%). Thus, the Heritage Foundation’s report likely understates the costs.

Won’t this hurt the poor the most?

Sure. These costs will have their greatest impact on food and energy. Thus, the harm from this bill will be highly regressive in nature, meaning that the poor will suffer the most. Also, the poorest parts of the country will be hit hardest by the job loses because those states rely on coal, farming and manufacturing more than the enlightened states. And here I thought the Democrats were the party of the poor?

As an aside, when your liberal friends start complaining about the cost of gas or electricity, tell them that the Republicans offered three amendments to suspend the program if gas hits $5 a gallon, if electricity rates increased by more than 10% in 2009, or if unemployment exceeds 15%. The Democrats defeated each of these, because they care about the poor. . . unlike those job-saving, gas-cheapening Republicans.

But do you know what’s even better?

This bill won’t even work to reduce green house emissions! At least, that’s what Greenpeace says.

The Waxman-Markey bill sets emission reduction targets far lower than science demands, then undermines even those targets with massive offsets.
An offset is like an indulgence. You can sin all you want, you just need to pay over a little something special to the pope and all will be forgiven. Remember your friend with the bucket? If you allowed offsets, he could keep adding water, but he would need to pay some politically connected third-party a rental fee on the bucket. That will solve the problem.

Greenpeace continues. . .

Greenpeace has expressed tremendous concern about the role of offsets in this legislation. Unless strictly controlled, the abuse of offsets could prevent real emission reductions for more than a decade. The decision to move authority over offsets from EPA to the Department of Agriculture further reduces the likelihood that such controls will be maintained and increases the likelihood they will undermine real reductions.
Department of Agriculture? Seriously? The same people who keep the nonsensical ethanol program running because it helps huge industrial farms (science be damned) and who kept the food pyramid upside down for 30 years to please lobbyists? Nice choice. Was the Bureau of Corruption unavailable? How do I get one of these jobs. . . I like suitcases full of cash.

(For our Congressional readers, that’s called sarcasm. . . sarcasm . . . oh look it up, I’m not going to explain it to you.)

So who do we thank for this?

The vote was 219-212. To get the bill through, the Democrats relied on the support of eight useful idiots, as Stalin would have called them. Not only did they not read the bill (300 of the 1200 pages were added, unread, at the last minute), but these eight idiots allowed eight Democrats in vulnerable districts to vote no, to protect their re-election chance. Here are their names:

Chris Smith -- NJ
Dave Riechert, WA
John M. McHugh - NY
Frank A. Lobiondo - NJ
Leonard Lance, NJ
Mark Steven Kirk, Il
Mike Castle, Del
Mary Bono Mack, CA
If you see these “Republicans,” spit on them. . . unless you’re really tall, then replace the p with an h.
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Saturday, June 27, 2009

For Your Consideration

This appeared in the New York Post this morning. Maybe our legal eagles (or Hawks) can shed some light on the last paragraph. Is this as ominous as it appears to be? Let's discuss...

Bam's new Gitmo flip

- Washington- The White House is considering issuing an executive order to indefinitely imprison a small number of current Guantanamo Bay detainees considered too dangerous to prosecute or release, two administration officials said yesterday.

No final decision has been made about the order, which would be the fourth major mandate by President Barack Obama to deal with how the United States treats and prosecutes terror suspects and foreign fighters.

One of the the officials said the order, if issued, would not take effect until
Oct. 1.

Congress has blocked the administration for spending money this year to imprison the detainees in the United States.

The administration also is considering asking Congress to pass new laws that would allow the indefinite detentions, the officials said. - AP

-New York Post 6/25/2009 Page 14

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Friday, June 26, 2009

Michael Jackson--In Perspective (2nd Saturday Update)

There is no doubt that Michael Jackson's death at age fifty was an event that the world could hardly fail to notice. There will be considerable press coverage over the next few weeks, and possibly months, regarding his career, his talent, and his title as The King of Pop. This post will be dealing with some nuts-and-bolts issues surrounding his sudden and unexpected death, including some legal issues that will arise over the course of the next few days.

Why was the Medical Examiner called in? The most pressing issue that is absorbing the news sites is the actual medical cause of his death. A heart attack is the known immediate cause, but there are many facets to that. The Medical Examiner's (Coroner's) report took longer than expected, but the preliminary results are inconclusive at the time of this writing. Was there a crime? Not necessarily. There are many reasons why such an examination would be required, many of which have little to do with a suspected crime. The most common reason would explain this one initially. A fifty year old man, with easy access to medical treatment and personal care is not expected to die of a sudden coronary arrest. That alone is sufficient to warrant an official medical examiner's report.

Once the determination to perform an autopsy has been made, the results may go nearly anywhere. Most often, an underlying medical condition that was either unsuspected or undetected is the cause. In the case of a public figure, known medical conditions are often hidden from the public to avoid potential damage to the person's career or privacy. In most of those cases, the examination will reveal that condition, but no further action will be taken on it so long as there was no indication of medical malpractice or foul play.

Given the mystery surrounding Jackson's life, the official medical examination was inevitable, but like so many things in Jackson's life, the results will intrigue people. Many are already speculating that there was either a crime, or a course of medical treatment for pain and other undisclosed diseases that went outside the ordinary bounds of good medicine. The allegations are that Jackson had a personal physician who lived at the residence, and may have been repeating the type of overmedication discovered in the death of Elvis Presley.

In addition, as of this writing, the doctor's car was found near the residence, but the doctor was nowhere to be found. On top of that, there have been allegations that the doctor was not licensed in California, which could then make the course of treatment and medication illegal even if it was otherwise appropriate. One of the drugs alleged to have been prescribed is demerol. This is a powerful opium derivative, used to treat acute pain. Rarely, it is used to treat chronic pain, but is contra-indicated for anyone who has either suffered previous addiction to opiates or who has any history of cardio-vascular disease. Like most pain medications, dependency is always a possibility, and the drug requires larger and larger doses to produce the minimum result.

In any event, this medical issue will not be resolved today or in the next few days. If there is a hint in the Medical Examiner's report that drugs of any kind were involved, no final conclusions can be drawn because the complete toxicology report cannot be finished in less than five or six weeks. If demerol is detected, that proves little or nothing in and of itself, unless an inordinately large amount is found in his system. But drug interactions are often the ultimate cause, and many of those drugs, if there are any, won't be identified for some time to come. The most the Medical Examiner can announce today is that the death was not from natural causes, or that it was from natural causes under suspicious circumstances. A pure finding of death from natural causes is highly unlikely, but possible. More likely the finding will be indeterminate, with some preliminary information about the actual sudden coronary arrest and any medication in Jackson's system. It is highly unlikely that the initial report will actually determine that the death was the result of any criminal act, or even medical malpractice.

California is very loosy-goosy about personal drug use, but when it comes to doctors who prescribe, overprescribe, or illegally prescribe a course of medication which may have resulted in a death, the state can be very tough and unforgiving. In the case of a beloved public figure, the political ramifications of ignoring the doctor's medical procedures would be disastrous for the police and the prosecutors. Although the news reports continually report that the doctor is not a "suspect," the simple fact is the police are looking hard for this phantom doctor, and for very good reason. For one thing, the doctor was allegedly performing the CPR while another person made the 911 call, and then described at least an hour of CPR before the call. That immediately raises the question of why an in-house doctor would not have immediate access to a defribillator, particularly if he knew of a potential coronary problem. One result which could occur from such a scenario are charges of criminal negligence or even homicide against the doctor.

UPDATE: The Medical Examiner's preliminary report has been released. In a brief and terse statement, the announcement stated that the autopsy had been completed, that there was no "immediate" indication of a criminal act, and that no final determination of the cause of death other than sudden coronary arrest was found.

UPDATE: Police are reporting that the residence contained a "treasure trove" of prescription medications, including multiple painkillers and anti-depressants. A full syringe of demerol was found near the body when paramedics arrived. They do not have the doctor in custody, but their information so far indicates that the doctor is a coronary specialist, and that he was employed by AEG, the company which was promoting Jackson's comeback tour. Beyond that, the police say they either have information they are not free to release, or information that has yet to be organized. As of this writing, the spokesman for the LAPD has said that the Department is in contact with the doctor, and will be scheduling an interview with him at the earliest possible time. The announcement also indicated that the detectives believe that the doctor is a California practitioner.

The next question being asked is "what will happen to the children?" California law leans very heavily toward awarding physical custody to the natural mother (assuming both the children and the mother are presently in California where the death occurred). If she chooses, she will get that custody almost immediately, despite the fact that she has not seen the children at all since she signed an agreement with Jackson that he would have sole and exclusive custody. That does not mean she will be allowed to keep the children permanently, or that she even wants them. The marriage was clearly a sham, and many of her actions subsequent to the divorce could be used to prove that she is not a fit parent. Yet under California law, a natural mother must be highly unfit, not merely negligent, eccentric or inattentive, for the court to award custody to anyone except her. And then the question becomes, "if not her, then who is next in line?" That would be family blood relatives. The Jackson family has had many problems, including charges of child abuse, so that's a questionable avenue, yet they have at least been in constant contact with Jackson and the children.

But there is more at stake than mere custody. Unless Jackson left a will (undetermined at this point), the children are entitled to his entire estate. Since they are minors, the court must appoint a guardian ad litem to determine who will be in charge of the fortune (or mound of debts, whichever it turns out to be). If the mother decides she wants the children, but there is serious doubt that she could handle the finances, the court could award her physical custody (guardian of the person) while giving legal and financial custody to a neutral professional third party (guardian of the estate). Even if she is a competent person with money, the court might still choose to appoint a guardian of the estate since Jackson's financial affairs were chaotic at best, and involve millions of dollars and control of certain assets which may be worth millions more. But there is also the matter of settling the debts (he is said to owe the local pharmacy over $100,000). This would be troubling for a team of highly-qualified certified public accountants, let alone a single mother of ordinary talents.

In the long run, this death will result in investigations, lawsuits, possible criminal charges, and estate challenges which will make the Anna Nicole Smith fiasco look like child's play.

If there are any new legal or factual developments in the reports of Michael Jackson's death, we will attempt to update you tonight or tomorrow. At this point, you know everything we know, and perhaps you may even know a little more.

UPDATE: Saturday, June 27--11:45 AM PDT: The Jackson family has ordered a separate autopsy. This was not entirely unexpected, but does firm up the talk that the family was not happy with the Medical Examiner's office so far. The name of the person designated to perform the autopsy has not yet been revealed, but the office of the Medical Examiner issued a brief statement in which it stated that "the family had every right to do this, and given the current status of personnel cutbacks and reductions in funding, it is not unreasonable to think that a private party might be able to act quicker and more efficiently." It's not clear from my point of view whether this is a sneaky plea for restoration of staffs and funding, an admission of incompetence, or a genuine statement of the intelligent concept of getting a second opinion. Much of the validity of the second autopsy will be in question, depending on which expert the family chooses. And there is always the underlying assumption that an independently-paid expert will attempt to find results that the family wants to be found.

UPDATE: Saturday, June 27--3:12 PM PDT: The name of the doctor has been confirmed by official sources. His name is Conrad Murray. Official sources have not yet confirmed news that he is a cardio-vascular specialist or whether he is properly licensed in California. Police repeated that he has been cooperative, and will hold a formal interview as early as Monday. As I suggested in yesterday's post, he is represented by counsel, which could explain the short "disappearance." He has been quoted as denying that he is in any way responsible for the death, but that is unconfirmed, and fully expected.

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San Francisco Diary--Journal Of An Exile

Massage this! Despite its reputation for rubbing people the wrong way, San Francisco has laws against it. And now we have a new one. Public hearings are now required for applications to open a massage parlor. The ordinance will also make it easier to revoke permits. This is all in the name of closing massage parlors that are actually fronts for prostitution. Apparently, the practitioners of massage "therapy" were literally rubbing patrons the wrong way.

NOTE: Like everything in San Francisco, this brouhaha is not as simple as people in the real world might think. In a town where pet owners are "human companions," there are no masseurs or masseuses, only massage "therapists." Mayor Gavin Newsom and the Board of Supervisors agreed that there can be no massage "therapy" after 10 PM. And your "therapist" can't be a minor, no matter what time of day you are getting your "therapy." Additional fines can be levied against parlors that require reinspections after code violations are found. Exactly which codes those are was not made clear. Perhaps "the therapist repeated that particular massage maneuver too rapidly and too often." I think it's called the "therapy with full release" violation.

But houses of prostitution must be closed, right? This ain't Poughkeepsie, folks. First, there are no prostitutes in San Francisco, only "sex workers." A big lobby at City Hall. Sex workers, not to be confused with massage therapists, have expressed the fear that this legislation will hurt women more than business owners (women don't own businesses?). But this may be just a simple jurisdictional labor dispute. The sex workers actually ended up supporting the measure unanimously. So it could just be that the hooker's union wants the therapists to pay their fair share of union dues.

Views from Chronicle and Examiner readers: One commenter on SF Gate said "Former Supervisor Jake McGoldrick put a prop on last year's ballot to legalize prostitution and stop the hypocrisy. San Francisco voted it down." Since the ratings for this comment were running five to one favorable, it seems Chronicle readers believe that prostitution isn't a problem, keeping it illegal is the problem. Another commenter said (and I quote precisely): "The Only people that can afford a Massage License IS the prostitutes! So basically SF is going to charge Prostituion [sic.] rings More money for Fake licenses!! Stupid is as Stoopid does. How about DECRIMINALIZING prostitution & Make LOTS of MONEY??!" See? Once prostitution is legal, poor massage therapists will also be able to afford licenses for cathouses. Or not. The comment was sufficiently unclear that it was getting only four favorable ratings to three. The writer also points out that not all massage therapists work in parlors. Many go to the client's home. I wonder if they're known as "call therapists."

NOTE: There was a hot time in the old Bayview last night! The largely African-American neighborhood was visited by First Do-Gooder Michelle Obama, hand-in-hand with Mrs. Governator Maria Shriver to assist volunteers in building a playground in this dangerous and decaying part of town. Hundreds of locals had to climb fences and telephone poles to view the proceedings since the area was carefully fenced off. According to other locals, the people were not happy about being left out of the party. Jackie Williams, a longtime Bayview "gardening and youth program activist" who was included in the proceedings said that if they had volunteered, they would have been let in. Many had complained they hadn't been told about the program. Williams disagreed: "They knew about it, honey, and had plenty of time to sign up, they just didn't know the President's wife was going to be there." Volunteering to help out in your own neighborhood is only a good thing if you get to have face-time and a photo op with Lady Obama, children at her feet. At least in the Bayview.

NOTE: The Board of Supervisors passed a package of "renter's rights" authored by the very lefty Supervisor Chris Daly. Among a host of hare-brained anti-business and fiscally suicidal provisions, the one that got the most play was Daly's proposal to bar landlords from increasing rents to more than one-third of a tenant's income (net? gross?), compulsory rent decreases for those who have become unemployed or whose wages have decreased by 20% or more over the past year, or whose sole income is (wait for it)--government assistance. Despite winning on a majority vote, the Supes are facing a veto by Mayor Gavin [not even I'm that crazy] Newsom. It is unlikely that the Supervisors will be able to muster enough votes to override a veto.

NOTE: One of the Bay Area's major modes of moving people from home to work and back again is facing a strike deadline of June 30. Bay Area Rapid Transit (BART) is one of the few government agencies that actually produces a decent working product, so naturally no matter how tough the economic times, the unions are demanding an end to the wage-freeze (nobody even suggested a pay-cut). But wait, there's more. The unions are further demanding a 3% pay increase. The unions have adopted President Obama's concept of creating money out of thin air. That would add $4,400,000 to the annual BART budget shortfall, which remained in deficit even after fares were increased to close the money gap.

NOTE: District Attorney Kamala Harris announced that seven illegal immigrants whose drug convictions were expunged as part of a job training program were "following the rules and deserved to be exonerated" even after prosecutors learned of their illegal status. One of the graduates of the program was arrested for assaulting and robbing a woman in San Francisco's exclusive Pacific Heights neighborhood, apparently while finishing up a task which he learned how to perform while in the program. After another earlier fiasco resulting from San Francisco's sanctuary city policy in which an illegal immigrant with multiple felony arrests committed a brutal murder, Harris had promised that those with criminal records would be reported to federal immigration authorities. Apparently somebody forgot to tell Harris about the drug conviction work program for illegals. Or so she says. Is she telling the truth? Is she lying? Take your pick. I know what I think.
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Film Friday: Rope (1948)

Alfred Hitchcock's most twisted film, Rope, is the story of two men who kill their friend and then host a dinner party over the chest in which they’ve hidden the body. And that’s just the beginning. If you haven’t heard of Rope, there is a reason. Calling Rope “an experiment that didn’t work out,” Hitchcock bought back the rights, along with four other “lost Hitchcocks” (The Man Who Knew Too Much, Rear Window, The Trouble With Harry and Vertigo), and he kept them from being shown in public for 30 years, until his daughter released them after his death.

** spoiler alert **
Rope: Hitchcock's Big Experiment
Based on the 1929 play Rope’s End by Patrick Hamilton, Rope was Hitchcock’s most experimental film. Indeed, not only was this Hitchcock’s first color film (ditto for Jimmy Stewart), but the film was shot in ten segments, ranging in length from four minutes to ten minutes, with each segment being filmed as a continuous take. Thus, as the camera and sound gear moved around the set (the film takes place in an apartment), the film crew rolled away walls and returned them, the prop men moved furniture out of the way and returned it, and the actors followed an elaborate choreography to keep out of the way of the film crew. Amazingly, you never notice.
The Story
Inspired by the real-life murder of fourteen-year-old Bobby Franks in 1924 by two University of Chicago students, Rope opens with Brandon (John Dall) and Phillip (Farley Granger) murdering their friend David by strangling him with a rope in their apartment. The scene opens as David gasps his last breath and goes limp. Brandon and Phillip then stuff David’s body into a large chest in the middle of the apartment. They killed him because they wanted to prove they could commit the perfect crime. They chose David as the victim because they viewed him as "inferior."

To satisfy his twisted ego, Brandon complicates matters by inviting David’s father, aunt, and fiancee to a small dinner party that will be held in the apartment. Unbeknownst to Phillip, Brandon upped the ante by also inviting David’s former best friend, who used to date David’s fiancee, and their former teacher, Rupert Cadell (Jimmy Stewart). At the last moment, Brandon further ups the stakes, by moving the dinner party from the dining room to the living room and choosing to serve food off the chest in which David's body is hidden. As the guests begin arriving, Brandon tells us, “Now the fun begins.” And so it does.

As the story unfolds, Hitchcock gives the audience a steady dose of black humor, allowing us in on the joke as the characters deliver dozens of lines like “these hands will bring you great fame,” and as Brandon makes repeated subtle references to David’s being dead and steers the conversation to the topic of murder. But with each passing joke, Brandon pushes further, becoming more and more careless and maniacal, while Phillip begins to crack.

Yet, Hitchcock tricks us into cheering for Brandon and Phillip. He does this by using their bickering to force the audience to empathize with them. Like Quentin Tarantino does in Pulp Fiction, Hitchcock uses their interaction to pull the audience into their relationship. You become invested in them. Combined with the sense of belonging one gets with being “in” on a joke, as we are with Brandon's repeated jokes at the expense of his guests, the audience slowly begins to pull for these two villains to get away with their crime. Indeed you find yourself increasingly tense as it gets more and more likely they will be caught. We even find ourselves becoming annoyed with David’s father, who is preoccupied with his missing son, and who repeatedly ruins the party for us with his sour concerns. We no longer see him as a caring father. Instead, we see him as the guest we wish hadn't been invited.

We also begin to distrust and then even dislike Jimmy Stewart, who becomes suspicious and begins to investigate. The more he pushes, the more unhappy we become. In a brilliant bit of manipulation, we watch Stewart use a metronome to force Phillip to play the piano faster and faster, as Stewart crossexamines him about the holes in their story until Phillip nearly breaks. But rather than celebrate Stewart's victory, this only increases our feelings of unease and disgust with the weakening Phillip, who is falling apart before our eyes. We begin to wonder, will we make it to the end of the party before he breaks.

And then, to prove to us that we now emotionally support the murderers, Hitchcock presents us with a tremendous scene where we watch the maid clearing the plates and candles from the chest. As the other actors continue their dialog off camera, we watch her slowly, but surely clear the chest and finally reach to open it. By that point, we are on the edge of our seats, wanting to scream to Brandon: "look what she's doing! Stop her!" We are rooting for the bad guys.
The Message
But just as we succumb to Hitchcock’s manipulation, Jimmy Stewart snaps us back to morality. In a moment reminiscent of the speech given by Jose Ferrer in The Caine Mutiny (1954), which changes the entire emotional complexion of that film, Stewart makes us realize that Brandon and Phillip are indeed monsters and we should be ashamed of having hoped for them to pull off their crime. For Stewart realizes that he is the reason Brandon and Phillip killed David, and it makes him sick. He recalls how he discussed with them the intellectual concepts of Nietzsche’s Ubermensch while they were students and how he advocated to them (as he does earlier in the film during a conversation which upsets David’s father) the idea that superior men not only have a right, but a duty, to murder inferior men. And even though he never meant his comments to be taken literally, he now realizes how dangerous his words were when spoken to impressionable young men. . . men like Brandon, who may honestly believe Stewart would approve of their “work of art.” Therein lies the message: words have power and we must take care in choosing what we say or we will rue the consequences.

And when Stewart understands how he shares the guilt for the murder he believes has taken place, Stewart shows the audience a level of horror in his face and in his shaking hands that Stewart has never shown in any other film. And when we see this, we too feel sick for how we laughed and condoned and enjoyed being on the inside earlier.

If there is a flaw in the film, it is that while Hitchcock can force us to root for the two murderers by engaging us in their relationship, he never does manage to make us believe their views about superior humans. Thus, while we do eventually feel shame for hoping they get away with the murder, it is not as deep as if we had come to accept their philosophy before Stewart exposes it. It is the difference between being ashamed of having laughed at an inappropriate joke, versus being ashamed at having told it. Indeed, I believe this is why The Caine Mutiny speech ultimately has greater effect -- because we never consider that we could be wrong until Ferrer speaks, whereas here we always knew Brandon and Phillip were wrong, we just didn’t mind.

As an aside, there is another message hidden in here, which is Hitchcock's statement against anti-Semitism. It is implied that David's family is Jewish and that this may have been part of their motivation in choosing him, something that is reinforced with the discussion of Nietzsche's theories, which became a core of Nazism.
Implied Homosexuality
Finally, it's worth noting Rope was notorious because of the implied homosexuality of the main characters. Indeed, the film was banned in several cities because of it. Yet, while it is clear the characters are meant to be gay (as indeed were the real University of Chicago students upon whom they are based and as were actors John Dall and Farley Granger and the writer), the implication is not obvious to the casual observer, who could easily see their relationship as being explained merely in Brandon bullying the weaker Phillip.

In any event, I highly recommend this film.

Check out the new film site -- CommentaramaFilms!

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Thursday, June 25, 2009

Once Upon a Time… One Writer’s Approach to Slogging a Book

By Writer X

Once upon a time, a book started with an idea.

A simple idea. That’s how a book always starts, although most writers are all probably a little different in how they approach building a book around the idea. I’m no different in that I have developed a sort of routine over the years. It’s nothing fancy; it’s not even that complicated.

My writing process goes in stages, depending on how far along I am in developing the story. If I’m just getting started, I tend to take my time developing plot lines and characters. It’s kind of like buying a new car: I have to take it for a test drive and make sure I’m ready for a long-term commitment. But, if I’m totally into my book, consumed with putting words down on paper—look out! That’s because the book becomes all that I can think about 24/7.

So, I’ll get an idea. Maybe it will come from a quote that I read or someone I met or a song that I heard. I once built an entire book from a line in a song that inspired me. I’ve never been guilty of having a shortage of book ideas either. I have, in fact, pages of them.

Once a particular idea latches onto my brain, I’ll do some character development. I’ll picture my main characters in my mind—what they look like, where they’re from, the sound of their voices, how they behave, their likes and dislikes. Then I may (not always) loosely outline the plot lines in the book. For me, the first chapter is critical. Even more than that, the first sentence of the first chapter is super critical. That sentence must reach out and pull the reader into the story by the collar. It must be compelling. I’ve spent hours, even weeks, agonizing about the first sentence, making sure it’s just right. It may be only a few words; it may be a bunch. But when it’s right, you just know. As an aside, most literary agents will tell you that they make up their minds about a book after reading the first page. Brutal reality, but true. And think about when you go to a library or book store and you open a book, if that first page doesn’t speak to you on some level, don’t you put it back on the shelf?

Once I’ve written the first few chapters and I’ve realized that it’s a story that I simply must tell, I commit to writing about 2000 words a day till the book is completed. Some days, writing 2000 words takes me a couple of hours; other days, it can take 24 hours. Some days, I can’t tap out a single word on my keyboard. It just depends. Rarely does a day go by, though, that I’m not writing something.

I have a few trusted people to whom I feed drafts as I’m writing, just to make sure my story is flowing, interesting, compelling. A lot of writers belong to writing critique groups. I strongly recommend them, just as long as your writing group doesn’t consist solely of your mother and best friend. Trust me, your mother will LOVE everything you write. Your best friend will only be slightly less objective. And you can find writing groups just about everywhere—libraries, book stores, colleges. Many are even on-line.

Keep in mind that a book that’s longer than 100,000 words will be difficult to sell, unless it’s a literary masterpiece. Or you’re an established author. Conversely, a book that’s less than 70,000 words is probably too short. In any event, finishing the first draft is key. Don’t worry if it’s not perfect; you’ll have plenty of opportunities for revision. It usually takes me around three months to finish a first draft. After that, I put it aside for a couple of weeks. Then, as some writers will say, the real work begins. Editing.

Editing can be tedious and slow—you must make sure that all your plot lines mesh, your characters are three-dimensional (believable), and your dialogue doesn’t sound like drivel. More than anything, you must remember to show more than tell. In other words, if your book is one big long narrative, it’s probably a boring read.

You will revise your book again. And again. And there’s no telling what will happen when an agent/editor gets his hands on it. That’s why I always tell writers to enjoy the writing experience while they can. Until I turn my book over to someone, I’m writing for myself, for the pure enjoyment of writing. If you’re writing with the sole intention of selling a book or chasing a trend, it will show, and you will most likely be unhappy with the end result. That’s why you have to write about something you love and let the rest take care of itself.

And they all lived happily ever after. The end.
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Question: What Books Would You Choose?

In an iconic scene at the end of The Time Machine, Rod Taylor returns to the past to get two books with which he plans to rebuild society. For years, I wondered what those books were. Then I got a bigger tv and my question was answered: Civilization for Dummies and To Serve Man.

Hmmm. Not quite what I expected.

Surely we can do better than that? What two books would you take? [+] Read More...

Wednesday, June 24, 2009

RTRP Health Care: What’s Wrong With Our Health Care System, Access

The second group of problems with our health care system are related to access to health insurance. You’ve all heard about the 46 million uninsured? How about the ever increasing burden of health care premiums. Those are access issues.

Is Access Really A Problem?

While it is certainly questionable whether or not the government should be involved in expanding health care coverage or trying to make it less expensive, there does seem to be significant support for addressing such concerns. When asked by Gallup to rank their concerns with the current system, Amercians cited "access" and "cost" as their top two concerns. Not surprisingly, liberals cited lack of "access" by a 2-1 margin over “cost” as their primary concern. More surprisingly, however, conservatives and moderates ranked “access” and “cost” equally.

And indeed, lack of access to health insurance does have societal costs. According to the American Enterprise Institute, 27% of the nation’s 1.2 million yearly bankruptcies are caused primarily by medical debts (between 36% and 55% (depending on the source) involve at least some medical debts). Moreover, hospitals provided $35 billion worth of “uncompensated” care in 2008, though 80% of this was ultimately compensated by the government.

Presumably, expanding access to insurance could solve these problems.

The 46 Million Uninsured

The most obvious issue with regard to access are the “46 million uninsured Americans.” No doubt you’ve heard this figure repeatedly. And while it is true that in 2007, 46 million people (15% of the population) were indeed without health insurance for at least part of the year, it will probably not surprise you that this number is not what it appears.

Of these 46 million, 17.5 million lived in households with incomes above $50,000 and are considered able to afford insurance. Another 11.5 million are eligible for public assistance, but have failed to avail themselves of that assistance. Thus, the actual number of uninsured persons who are in fact unable to become insured because of lack of income are only 17 million.

Moreover, another 9.7 million of these uninsured are non-citizens, whose health care expenses should be paid for by their country of origin. If they are removed, the total number of persons who cannot obtain insurance due to lack of income is really 7.3 million.

The Uninsurable

Another 5 million of those without insurance are considered uninsurable because of pre-existing conditions.

The Costs Of Becoming Insured

The side of the “access” problem is the ever increasing cost of health insurance. Health insurance premiums are increasing at twice the rate of inflation.

Currently, 59.3% of Americans receive their health insurance coverage through an employer. The annual premium for private insurance is $4,700 per single person and $12,700 for family of four. Another $2,500 per person, was spent in 2007 out of pocket on medical expenses.

Compared to the median household income of $50,233 (according to 2007 Census Bureau figures), these costs are significant. Moreover, this insurance is susceptible to being lost during employment changes.

Another 27.8% of Americans receive their health insurance coverage directly from the government (Medicaid (39.6 million), Medicare (41.4 million), Tricare, etc.). However, these programs are massively expensive. In 2007, the federal and state governments spent a whopping $11,093 per enrollee in Medicare and Medicaid. That is 2.4 times what private insurance paid.


Thus, effective reform must do the following:

1. Dramatically reduce the costs of Medicare/Medicaid.
2. Maintain or reduce the costs of private insurance.
3. Provide insurance coverage to the 17 million who cannot afford it, and the 5 million who are considered uninsurable.
4. Provide insurance for the 9.7 million aliens through their home governments.
5. Eliminate the problem that job loss can lead to loss of insurance.
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Belated Father's Day Treat--Obama Is Love

The Mainstream Media love affair with President Obama doesn't seem to be cooling off at all. All you need is love, love. This love is so deep that CBS hasn't held it against Obama that he's presently shacked up with ABC in the White House. On Father's Day, CBS got a chance to fawn over the President once again. Leaving no love stone unturned, most of CBS's Sunday was devoted to showing what an amazing father the First Pop is.

On Sunday morning, CBS viewers were greeted with an interview by Harry Smith beaming with lovelight for the President. Smith's amazement was made manifest when he asked "In this fatherless world, where did you learn to love?" I assume it wasn't on the South Side of Chicago. He was learning other things there.

In a two part puff-piece that looked and sounded like something out of a daytime soap opera, complete with Guiding Light music in the background during the voice-over, Smith rhapsodized: "Maybe it was on election night when we first realized not only would there be a new President but also a new first family. A family with young children! Along with being commander-in-chief and leader of the free world, Barack Obama would be First Dad! So, yes, there would be a swing set and, yes, there would be a dog."

The purple prose got purpler (is there such a word?) as it went on. He described Obama's young life without a father, the poor child knowing that he was fatherless by that father's own choice. In answer to Smith's question about where Obama learned to love, the Lord and Father of us all replied: "Where I learned, I think, to be a father, was looking at the people I respected. And it just reminded me that, you know, whatever the hardships, whatever the obstacles, you can be a good dad." I assume those people included urban terrorist William Ayers and Rev. Jeremiah "God Damn America" Wright, but probably not his gay communist mentor (remember, that was pre-gay marriage and pre-gay adoption, even in Hawaii).

Smith effused: "Believe it or not, every parent in the country is watching your every move as a parent. The world can wait 'til after Sasha and Malia's soccer or basketball game." Take that, North Korea. Take that, Iran. First soccer and basketball--then world crises. Obama then went on to talk about how he is an old-school father. "If they were going to have a puppy, they have to make their beds. They have to walk the dog. They have to feed the dog. They have to do their homework. They don't watch TV during the week." Omigod, he isn't the President of the United States. He's Robert Young in Father Knows Best.

Later in the show, while the President was off teaching the girls how to do laundry and mow the lawn, Smith went on: "Friday afternoon, the White House held a barbecue and town meeting for fathers. The importance of fatherhood first echoed in a speech last Father's Day in Chicago. With four of ten children in the United States born to unwed mothers the President wants it understood it's time for men to man up."

The Early Show kept up the pace, even on Monday. Entertainment Tonight's Lara Spencer was filling in as co-host, and cooed to Smith: "I just like him more and more. And this interview is so telling." As Spenser patted the drool at the corner of her mouth, Smith replied: "I can't imagine the pressure. And his focus, his focus is just phenomenal. And if you really want to understand this guy . . . the first book, I think, is the most important one--the Dreams From My Father. We were reminded that Obama fondly remembers only one gift his father gave him--a basketball." Apparently his father was more aware of his son's true abilities than the Democratic Party and the American people.

I won't regale you with the final chapter in the interview which was aired on Tuesday morning. I'm starting to get queasy from all the sweetness and light being thrown at me. If you want to read all the gory details, check out the CBS website, or check in on the Media Research Center (they were nice enough to capsulize the comments knowing people like me were so transfixed with the beauty of it all that we would forget to write down the best tidbits).
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Tuesday, June 23, 2009

Through the Legal Looking Glass: How to Pick A Good Attorney

How do you find a good attorney? How do you know if your attorney is doing a good job? Today we help you answer these questions.

Sadly, there are no easy answers. Local referral services? No, they just give you the name of one of their members. Friends? No, they don’t know any more than you do. And, let me assure you, many people lie about how well their attorney did for them. The lawyer you met at the bar the other night? Puulease. I can’t tell you the number of clients who have gotten amazingly wrong information from some drunk attorney they met. How about the guys on television? Maybe, but most of them are high volume guys who are more interested in getting a quick settlement.

So what do you do? You listen, you ask, and you watch.

Listen To Their Pitch

When you first meet with an attorney, they will give you a pitch. You need to listen closely for danger signs that this is not the attorney you want. For example:

• Do they over-promise? Competent attorneys will never promise to win your case, and they will never tell you how much money you are likely to get. A competent attorney will explain to you the pros and cons of your case, and will give you an indication of what you should seek as damages. They will also caution you, repeatedly, that there are no guarantees.

• Does the attorney get emotional about your case? Attorneys should believe in their cases, but should not become emotionally involved. If the attorney starts foaming at the mouth or promising to “get them”, “punish them” or “crush them,” you want to move on.

• Does the attorney suggest that they have some special relationship with the judge? If so, move on. Not only is this rarely true (and unethical when it is), but guys like this are usually incompetent.

• Does the attorney talk about their win/loss record? It is basically impossible to have a win/loss record in the legal profession. Most matters involved mixed results, e.g. a two year sentence can be a big win for someone who was expecting ten years. The real question is how happy the clients are with the results they have achieved.

• Does the attorney claim to be ranked? This is pure garbage. There is no system to rank attorneys, nor would such a system make sense because what attorneys do is too varied and impossible to track. When you hear about rankings, these are created by groups that usually were formed by the very attorneys they rank. It’s marketing.

• Does the attorney spend time trying to understand your case or do they just keep pitching? And, do they seem to grasp what you are telling them?

Ask Some Questions

Not only should you listen to the pitch, but you should ask questions to get your hands around the attorney’s level of experience. For example:

• Have they handled cases like yours before, and what results did they obtain? The greater the experience, the deeper the experience, the better.

• Ask about their trial experience generally. How many trials have they personally had, and what was the subject matter of those trials?
• What issues (pro and con) do they see in your case? A competent attorney should always be able to outline the issues for you, even if they need to research how to handle those issues.

• What kind of experts do they think need to be hired? This question will give you a good sense of how competent the attorney is to handle trial work, especially when you are a dealing with a technical issue (such as medical malpractice cases). A competent trial attorney should always have a game plan, which includes the need for expert evidence.

• Who will do the work on your case? Will the attorney do the work or will you be palmed off on a junior associate?

• What does the attorney need from you? The attorney needs you to make the case happen. They should ask you right off the bat to gather documents and help them meet with witnesses.

Keep Paying Attention

Even after you’ve hired the attorney, you need to keep paying attention. If you’ve made a mistake, change attorneys. Here are some good rules to follow:

• Ask for copies of all documents produced by either side. If you can’t understand what your attorney wrote, the judge probably can’t either. Also, comparing the filings may tell you whether your attorney is being outclassed. Moreover, this lets you track whether or not your case is being worked or has been pushed aside.

• Attend depositions. You have a right to attend any deposition in your case. Take it. This is your chance to see what all of the witnesses will say and whether your attorney can get information out of reluctant witnesses. It will also tell you if your attorney grasps your case. Good attorneys involve their clients in depositions.

• Attend hearings. This is your chance to see your attorney in action before the judge, and to compare them to the other attorney.

• Does your attorney dismiss your concerns? Does your attorney never return your phone calls? Does your attorney seem unable to explain to you what is happening in the case? Do they blame you for problems? Move on if they do.

In all of this, use your judgment. If your attorney doesn’t seem to know or care what is going in your case, move on. If your attorney seems reluctant to proceed and only seems to be humoring you, move on. If your attorney can’t answer your questions, move on.

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Scientific Integrity And The Obama Administration

This isn't going to be what you think it is. There's plenty of junk science being thrown around by the Al Gore wing of the Democratic Party. This is about the "science" of regulation, which does include, but is not limited to the administration policies on science. The President issued a memo on March 9, 2009 to all executive department heads which said "The Director of the Office of Science and Technology is assigned the responsibility for ensuring the highest level of integrity in all aspects of the executive branch's involvement with scientific and technological processes."

The memo goes on to say "and in consultation with other agencies, to develop recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch within 120 days." The gist of the matter is that the administration has decided that only strictly scientific tests should be used for determining the efficacy of regulations, and the qualifications of regulators.

On April 30, 2009 the House Committee on Science and Technology Subcommittee on Investigations and Oversight held a hearing on the "the Role of Science in Regulatory Reform." Chairman Brad Miller did not follow the President's agenda. He expressed "serious reservations" about the Office of Information and Regulatory Affairs ("OIRA") having any role in rulemaking. The testimony did a rather good job of verifying what he was saying. Caroline Smith DeWaal of the Center for Science in the Public Interest, expected to be a supporter of the administration policy said that applying scientific criteria to a non-scientific matter was unreasonable. She, like most of the witnesses, did not object to scientific methods in applying regulations, but the President was demanding that those methods be used to write the regulations to be enforced. That's a major policy decision, which fits into the President's love for Czars and bureaucrats making the rules, not implementing them.

Cary Oglianese, Professor of Public Policy at the University of Pennsylvania explained that "Science is about understanding or predicting what is, not about concluding or justifying what a standard should be . . .When regulators purport to rely on science as the sole basis for their policy choices, the real reasons justifying their choices remain hidden from public view." Rick Melberthof of OMB Watch testified that "agencies have the technical, scientific, economic, and social expertise to address the highly complex issues before them. OIRA does not have this range of expertise and should not be approving or rejecting individual rules." DeWaal was even more precise: "As OIRA is staffed by economists, it should avoid a scientific and technical review of regulations."

But Chairman Miller's words were the strongest of all. "The order had the effect of placing in the hands of the President, OIRA, and faceless political operatives in every agency, power over regulatory efforts that was consistent neither with statute nor with the Constitution." Take note, Senator McCain. The Democrats have a few mavericks too.

This is one of the very early indications that Obama's intention of grabbing power from the other branches of government, politicizing civil service, and bringing in the rule of unelected bureaucrats subservient to the administration's agenda is finally beginning to smell bad, even to his fellow Democrats. Whether this is an early rebellion by those who seek power of their own or a matter of genuine philosophical and constitutional objections to Obama's power grab remains to be seen. But it's a darned good start.

The movie Jurassic Park addressed one side of the issue in that science is concerned with what can be done, not what ought to be done. The other side of that issue is that science has no moral component of its own, and therefore is one of the worst possible ways of writing immense regulations which will determine the course of how the American people's lives will be lived for years to come. And it does so without any consideration for how they might choose to live their lives. With this administration's clear love for junk science, do we really want these people writing policy while hidden from the public? If they can muck up global warming, imagine what they can do with the rest of the rules. The last "scientific method" dominated administration to determine public policy and write the regulations ended when Germany surrendered in 1945.
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Monday, June 22, 2009

RTRP Health Care: Out-of-Control Costs, Lawyers (UPDATE)

Several of you asked whether the $500-$700 billion of unnecessary tests/ procedures identified in our earlier column can be attributed to “defensive medicine” -- doctors basing their decisions on fear of lawsuits rather than medical necessity.

While there can be no doubt that some portion of the $500-$700 billion is the result of defensive medicine, the available evidence shows that defensive medicine accounts for only a very small portion of the amount.

Largest Estimate: $113 Billion/$66 Billion

The largest estimate given for such costs came from then-President Bush, who claimed in 2004 that 5% of medical costs were the result of defensive medicine. If true, this would account only for a maximum of $113 billion of the $500-$700 billion in medically unnecessary tests/procedures. That’s it.

However, even if this were accurate, the actual number would be much lower than $113 billion because most of the $2.26 trillion is not connected to the delivery of services. Thus, Bush gave a range, which went as low as 2.5%. This would reduce the $133 billion to $66 billion.

But It Could Be As Low As $6 Billion

But there is another problem with this figure. The study Bush relied upon does not appear to be reliable for reaching the conclusion that he reached. That study, by economists Daniel Kessler and Mark McClellan, compared the cost of two types of cardiology-related procedures in states that had enacted tort reform and states that had not. They found a 5% difference in costs between the two groups of states, and then extrapolated that to all medical costs.

Yet, when the Congressional Budget Office attempted to apply the same methods used by Kessler and McClellan to a broader set of ailments, it “found no evidence that restrictions on tort liability reduce medical spending. . . CBO found no statistically significant difference per capita health care spending between states with and without limits on malpractice torts.” The GAO reached the same conclusion.

Similarly, a 1990 Harvard Medical Practice Study of New York physicians found an insignificant relationship between the threat of litigation and medical costs, even though physicians reported that their practices had been affected by the threat of lawsuits.

A study published in the Journal of Health Economics in 1999, found that tort reform related to births by cesarean section did result in costs savings, but those costs savings were only 0.27%. Applying this to costs in general, as Bush did with the Kessler/McClellan study, would result in savings of only $6 billion.
Finally, a congressional Office of Technology Assessment study into the effects of “defensive radiology in children with head injuries and defensive Cesarean sections” concluded that “it is impossible in the final analysis to draw conclusions about the overall extent or cost of defensive medicine,” and then found that less than $54 million could be attributable to defensive medicine in these areas.

Thus, at best you’re talking about $113 of the $500-$700 billion, but more likely the figure is much, much smaller between $6 and $66 billion.

What Is Causing The Rest Of The $500-$700 Billion

So where does the rest of the $500-$700 billion come from? According to a study by Dartmouth’s Institute for Health Policy and Clinical Practice, there is a direct relationship between the availability of services and how much those services are prescribed, whether or not those services are medically necessary. Dartmouth found, for example, that where more medical beds were available, doctors prescribed more hospitalization, even though this was not medically necessary nor did it result in better results for patients.

According to the Dartmouth report, and various follow up reports, there are two suspected causes for this.

• First, there is a lack of clear national standards that results in wildly different treatment being provided in different geographic regions. Indeed, recent studies have shown that many doctors lack adequate information on the risks/benefits of common treatments. This results in both over and under treatment.

• Secondly, flawed payment systems reward doctors for providing more care, whether or not that care results in better treatment or results.

Thus, while tort reform should be a part of any reform, tort reform alone cannot solve this problem.
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Joseph "Gaffemeister" Biden Enlightens America

Between June 14 and yesterday, VP Joe Biden has made several statements indicating that the Democrats either lied or distorted what they believed about the economy over the past eleven months. He also slipped a couple of times and referred to documents or studies which showed that what they said was nearly diametrically opposite from what their internal reports showed. Anything to win an election.

Biden's first, and biggest slip, was on June 14, 2009 when he appeared on NBC's Meet The Press. He claimed that nobody [in the Democratic policy committees] realized how bad the economy was at the time of the passage of the Obama stimulus package in February. Not only did the the Democrats know, but it is becoming apparent that they acted on their information in such a way as to make the situation even worse. And they not only knew how bad things were, but they deliberately started as early as June of 2008 (right after Obama had clinched the nomination) to promote tax rates which would provide a self-fulfilling prophecy of decreased revenue by "soaking the rich." In short order, Obama accused Americans who opposed tax increases during a stressed economy as "making a virtue out of selfishness." Biden himself suggested that it was unpatriotic to oppose tax increases to steady the economy.

Then, to frost the cake, they hauled out every economy-destroying plan in the liberal playbook. Radically reduce the use of fossil fuels, and make damned sure no more oil is found or used in American territory. Obama suggested that we could nearly solve the temporary problem by simply making sure our tires were inflated properly. Knowing who was actually responsible for banks being forced to lend mortgage money to un-creditworthy persons at profit-devouring low interest rates, they pointed the finger at bank regulators who helped greedy banks make loans that the banks knew the borrowers could never afford and would never pay. No reasonable explanation was ever given for why banks would want to shoot themselves in the foot voluntarily.

The Democrats knew exactly what the situation was throughout 2008. The only thing they miscalculated was how much damage their crazed plans would actually do. Obama even supported Bush's final major act of throwing good money after bad at the auto industry, knowing that it only opened the door for Obama's administration to do far more cash-burning while at the same time seizing unprecedented ownership in huge private enterprises. Never having owned or operated a business of their own, Obama, Biden, Pelosi and Reid set about "restoring public confidence" without ever realizing that all successful businesses start anticipatory downsizing and cost-cutting in the face of a recession.

Let's take a quick look at some Democratic actions and talking points in chronological order. First, let's deal with Biden's professed love for the little guy and distaste for big banking. In March of 2005, Biden was an enthusiastic supporter of "bankruptcy reform." Whom did he think that served, and whom did he think it hurt? Despite Biden's babbling about "credit abuse," the evidence didn't support any such thing. The rate of "abuse" has cycles, but hasn't changed appreciably in forty years. So the "cheater" gets less opportunity to run up debts intentionally, but the far larger number of persons who met with unforseeable financial crunches could no longer get out from under debts incurred through no fault of their own that would have little impact on the overall economy.

David Broder in the Washington Post reported that the banks were making huge profits from late charges and overlimit charges already, and now the poor debtor couldn't even stop that. This is about the time that Biden got the nickname "the Senator from MBNA (a major credit card grantor)." At the same time, Biden was actively sponsoring "asset protection trusts" which benefited only the very wealthy (and provide no tax revenue), while insisting that persons who fell into debt even as caregivers to ill or disabled family members or victims of identity theft "had to pay."

In late June of 2008, with Biden at his side, Obama made his "tune-up and tire inflation" speech demonstrating how we don't need no stinking oil (or at least a lot less of it). Jim Geraghty of National Review calculated the actual savings of those two items at about 100,000 gallons a day (about 3% of then-current useage) which is about one-third of the number of gallons of oil that could be produced daily if Congress would simply allow domestic oil production at already existing facilities. The best solution is domestic oil production and properly-inflated tires.

By October 31, 2008, Biden and his boss had honed their rhetoric down to saying that "John McCain and Sarah Palin call this socialistic (referring to the proposed tax increases). You know I don't know when, when they decided they wanted to make a virtue out of selfishness." I guess selfishness is only good for Biden's favorite banks, lobbyists, and trust-funders. In fact by then, Biden had spearheaded the bankruptcy reform which was now law that specifically rejected Republican-sponsored amendments to close those bank, lobbyist and overseas trust exemptions. Source: ABC News.

On December 19, 2008, again with Biden in tow, President-elect Obama made a major policy speech in which he claimed the problem to be larger than they had thought (now that the Democratic Congress had taken multiple measures to insure the crisis would get worse, including serious talk of trade barriers), but his magic solutions would solve that problem.

By June 5, 2009 Obama was claiming that pouring huge sums of taxpayer dollars into and taking over the operations directly or indirectly of mega corporations would result in an unemployment rate of 8.5% maximum by mid-June of 2009. Oops, it's at 9.4% and rising, despite one short dip in early June. Obama and Biden simply used the April figures (knowing the May figures were worse) and "postdicted" a result that was wrong the moment it was announced. Jeez--can't these guys even look at their own Labor Department figures?

By June 17, 2009, Republicans led by Senator Tom Coburn (R-Oklahoma) had released a report highlighting 100 examples of questionable stimulus projects totalling about $6 billion. Knowing exactly which programs they had over-sold and over-touted, the Democrats had a full point-by-point refutation of each project listed in the Republican report the same afternoon. As reported on RealClearPolitics, Biden's earlier report in mid-April had listed all of these projects as "enhancing the economy." In the rebuttal, fully one-third of the points made by Coburn were simply called "false" or "still under review." My favorite was $800,000 allocated for repaving a backup runway at John Murtha Airport ("still under review").

On the same day, Director Lawrence Summers of Obama's National Economic Council was repeating Biden's talking points about extensive regulation of everything financial as the means to prevent future financial crises. Each economic expert will be provided with his or her own personal crystal ball. In the Soviet Union, they called them "five year plans." As reported by Matthew Benjamin and Peter Cook in the Bloomberg Times, Summers mystifyingly stated "This problem was much more caused by what happened when institutions escaped the Fed's jurisdiction than it was by anything the Fed did." Huh? Knowing it to be untrue, Summers went on to say "The economy is in a very different place than it was three months ago, there's been a lot of normalization." Although if by "normalization" he means the biggest power grab of the economy by any government in American history, I guess he's right.

Finally back to Biden and Meet the Press. He added "we took the mainstream model as to what we thought--and everyone else thought--the unemployment rate would be." Not according to your boss, Joe. "The bottom line is that jobs are being created that would not have been there before." Jobs are not the issue, Joe. Jobs that improve the economy are the issue. And government-funded workfare along with new government employment hamstring the economy. That's not job creation, Joe. It's dependency-creation.
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