Friday, August 21, 2009

Breaking News: Sarah Palin Proposes "Big Guv'ment"

Sarah Palin gives punditry another try today, with this interesting Facebook note: No Health Care Reform Without Legal Reform. Because healthcare reform is legally based, I was a bit confused, yet intrigued, by the title. Palin, however, makes her case quickly.

Palin wants to tie healthcare reform with tort reform. Tort reform is just as central to old-school Republican platforms as are preaching the horrors of socialized medicine, blaming illegal aliens for the nation's woes, and opposing abortion and same-sex anything.

Palin extensively quotes Stuart Weinstein, a medical doctor and a longstanding proponent of tort reform. She also references experiences with tort reform in Alaska and Texas. Palin argues that reforming the tort system is essential for lowering costs. I will not even debate Palin's claim -- because others have addressed the argument already.

Instead, I have some more fundamental questions for the former Governor.

Big Guv'ment
Medical malpractice suits are rooted in state tort law (for the most part). By what authority can the federal government take control of this specific aspect of state court systems, legislatures, juries and law practice? This seems to undermine three mainstays of conservatism: states' rights, federalism and deregulation.

If, as many conservatives have argued, healthcare reform represents a severe intrusion into the interests of states and private citizens, then a federal law that caps liability for medical malpractice suits does the same. The reform Palin proposes would regulate damage awards in 50 states. It would interfere with the jury process and administration of justice in every state. It would prevent private parties from seeking remedies that the law in their states otherwise make available.

Just as Palin argues that "Obamacare" would interfere with patients, their doctors and insurance companies, PalinLaw would interfere with patients, their lawyers, and juries. And speaking of "death panels," PalinLaw would allow the federal government to set the maximum value recoverable in a wrongful death action in all states. So, to borrow from Senator Grassley, if the doctor kills "grandma" PalinLaw would determine the maximum value that grandma was worth. If this is permissible, then conservatives should abandon or at least temper their rhetoric opposing healthcare reform (and other national policies).

Don't Hold Uninsured Patients Hostage to Fulfill Political Agendas
Second, why should the public hold healthcare reform hostage to bring about tort reform? Congress should not enmesh the explosive question of healthcare reform with the equally controversial topic of tort reform. This is just another argument for doing nothing.

Under Palin's logic, the public should tie healthcare reform with a cure for cancer. Cancer adds greatly to healthcare costs. So do heart attacks and heart disease -- and to a much greater extent than litigation.

If the public waits until medical researchers find a solution for these issues, then the cost of reforming healthcare would plunge. This would alleviate the concerns that many people have regarding the expense of a system overhaul. Wait, wait, wait and do nothing.


Kansas City said...

I think that Constitutionally, the scope of health care reform is so broad that accompanying health care tort reform would pass muster. Politically, it certainly is sufficiently related for Palin or anyone else to logically argue for it.

You are correct, it is not consistent with "conservative" principles. But your criticism puts Palin and other conservatives in a catch 22. You expect them to acquiesce in a very liberal takeover of health care, without trying to add a tort reform component that is conservative in result (stopping liberal lawyers from abusing the system) even if non-conservative in form.

As to the merits of tort reform, all you need to is look at how the scoundrel John Edwards manipulated and damaged the system.

Kansas City said...

Also, Palin probably is about to again seize a good portion of the debate. She may yet succeed in advancing her career and the interests of the country.

Darren Lenard Hutchinson said...

It seems that that we agree except for:

1. By calling out Palin's contradictions, I have not put conservatives in a catch 22. Tort reform has been a staple of conservative politics -- long before healthcare reform, and the proposals exist beyond medical malpractice.

2. I doubt that we will agree regarding the merits of tort reform. frivolity exists in all settings. Doctors and hospitals rip off the government and insurance companies. Juries overcompensate and award outlandish punitive damages awards. To say that this is largely responsible for the high cost of medical services is a leap.

Explain to me how her deceit regarding "death panels" advanced the interests of anything other than Palin herself?

commoncents said...

Great post! Keep up the excellent work!

ps. Link Exchange?

Angela said...

Excellent point Darren. You should write a longer article about this.

Anonymous said...

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Kansas City said...

Palin drives otherwise reasonable people to extremes. As to "death panels," she put the words in quotes and was using normal political rhetorical argument. Some of Obama's advisors have talked about the need to deny care to older people, Obama himself has talked about it, there was enod lo life counseling in teh bills, and a panel of some kind to consider issues of treatment. Plus, when you talk about cutting medicare costs, you are talking in part about limiting treatment. Palin was not talking literally about death panels and, at this point, she has won the argument.

She may also win the tort reform argument.

Matt Osborne said...

This tort-reform meme is an old one. Arm yourself with facts.

Kansas City said...

Here is summary of the comments by some liberals who are better informed than me, regarding the accuracy of Palin's metaphor:

Consider Lee Siegel. He prefaces his recent piece in the Daily Beast with the announcement that he considers "the absence of universal healthcare . . . America's burning shame." Then, however, he acknowledges that "on one point the plan's critics are absolutely correct. One of the key ideas under consideration - which can be read as expressing sympathy for limitations on end-of-life care - is morally revolting."

Make no mistake about it. Determining which treatments are "cost effective" at the end of a person's life and which are not is one of Obama's priorities. It's one of the principal ways he counts on saving money and making universal healthcare affordable.

This reeks of the Big Brother nightmare of oppressive government that the shrewd propagandists on the right are always blathering on about. Except that this time, they could not be more right. . . .

Siegel is not an isolated figure. In Salon, Camille Paglia makes much the same point, praising Sarah Palin for her "shrewdly timed metaphor," which "spoke directly to the electorate's unease with the prospect of shadowy, unelected government figures controlling our lives. A death panel not only has the power of life and death but is itself a symptom of a Kafkaesque brave new world where authority has become remote, arbitrary and spectral."

Even The New York Times is coming around. On August 13, Jim Rutenberg and Jackie Calmes, writing in the news pages, played the conspiracy card, charging that the concerns evidenced at the town-hall meetings were the product of a systematic attempt on the part of conservatives to mislead the gullible. Precisely one week later, however, the same newspaper published another news article by Robert Pear, acknowledging that "Medicare beneficiaries and insurance counselors say the concerns are not entirely irrational," and adding that "the zeal for cutting health costs, combined with proposals to compare the effectiveness of various treatments and to counsel seniors on end-of-life care, may explain why some people think the legislation is about rationing, which could affect access to the most expensive services in the final months of life."

Even more to the point, at the end of his article, Pear notes,

If a bill becomes law, no one can say for sure how it may be applied or extended. The 1965 law that created Medicare prohibited "any federal interference" in "the practice of medicine or the manner in which medical services are provided," or in the operation of any institution providing health care. Sara Rosenbaum, a professor of health law and policy at George Washington University, called this "a majestic message from Congress about how it expected the Medicare program to be run." But the meaning of that guarantee has shrunk as Medicare officials and Congress have set more detailed standards for doctors, hospitals, nursing homes, and others in Medicare.

Darren Lenard Hutchinson said...

KC: That is the dumbest argument surrounding healthcare reform and one of the dumbest arguments to emerge this decade. The statutes and regulations governing Medicare and Medicaid -- just like private plans -- list services that qualify for reimbursement from the payer (in this setting the government). Simply listing coverage and reimbursement does not mandate that the service occur.

Furthermore, this counseling -- which the AMA, the American Association of Critical Nurses, the American Association of ER Nurses, and a host of other medical providers passionately advocate -- is not a prelude to forced euthanasia. Instead, it helps medical providers do what the patients want -- rather than having nasty Schiavo situations. I'll take my cues from medical and legal experts, rather than the people you cite. They certainly know more about the issue than Sarah Palin.

Finally, the same statute that Palin describes as creating a "death panel" describes coverage for mammograms and other treatments. Does the government mandate mammograms? My private insurance covers a certain amount of dental surgeries per year. Guess what: I do not have to have them! Palin's argument is exceedingly bankrupt and deceitful. She should be ashamed for making it. People who give it credibility should be ashamed as well.

Darren Lenard Hutchinson said...

PS: I meant Palin's argument was dumb. Not yours.

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