Med Mal torts: $$ and the Constitution

I'd like to highlight something from a broader story on North Carolina medical malpractice reform, which I wrote this week for The Indy.

The GOP's medical malpractice tort reform bill in North Carolina has primarily been pitched as a way to save money on health care.

Some say it will also help the state recruit doctors, ideally to rural areas with shortages. But I've looked at several studies on these issues, and the likelihood that all kinds of doctors will relocate to Hendersonville, NC, because the General Assembly beefed up its tort laws is questionable.

Those studies do agree, though, that reforms in Senate Bill 33 save money. It may be less than a percentage point of total health care costs, and the savings may never trickle down to patients, but it does save money.

The problem is, it's really the award caps that save money. According to a Harvard synthesis of several medical malpractice studies, only the caps are effective. From that study:

Caps on damages reduce average awards and have modest effects on premium growth and physician supply. Other reforms have little impact.

The problem is these caps are constitutionally vulnerable.

In fact, SB 33 specifically contemplates the cap section of the bill — and only that section — being declared unconstitutional. Georgia's Supreme Court found a very similar cap unconstitutional last year in a unanimous decision that you can download here: Click on S09A1432. ATLANTA OCULOPLASTIC SURGERY, P.C., d/b/a OCULUS v. NESTLEHUTT et al.

Georgia Justices decided that "the very existence of the caps, in any amount, is violative of the right to trial by jury."

Now, as Senate President Pro Tem Phil Berger noted Tuesday, North Carolina justices will be looking at North Carolina's constitution when/if they decide this, not Georgia's.

But the N.C. Constitution's right to trial by jury (Article 1, Sect. 25) is not much different from Georgia's (Article 1, Sect. 1, paragraph XI).

Georgia's says the right "shall remain inviolate" and North Carolina's says it "shall remain sacred and inviolable." And, of course, the right to trial by jury in civil and criminal matters is in the U.S. Constitution as part of the Bill of Rights.

So unless North Carolina's Supreme Court reads constitutions a whole lot differently than Georgia's, the caps would be declared unconstitutional. Two retired N.C. Supreme Court Justices have predicted this, though a third has said he believes the caps are constitutional.

But here's my point: The bill's meant to save money. It includes caps and several other reforms, including a new "gross negligence" standard and other changes that will make it harder to sue doctors. Studies show that cap reforms save money, and that other tort reforms probably don't.

So if this bill passes and the cap is declared unconstitutional you end up with new tort laws that don't fulfill the stated purpose of saving money, but do make it harder for people seriously injured by malpractice to sue.

That is, if they pass at all. Republicans hold majorities in the House and Senate, but Gov. Bev Perdue has been giving her veto stamp a work out so far this session.

Suspected killer skips on $1,500 bond

Peter Moses is suspected of shooting his girlfriend's 5-year-old son, putting the body in a suitcase and putting it in an attic.

He also may be part of the Black Hebrews, or as The N&O puts it, "a black supremacist wing of the Hebrew Israelite movement believes Jesus Christ will soon return and kill whites, Jews, homosexuals and others, according to the Southern Poverty Law Center.


The boy has apparently been missing since October. Moses got picked up Feb. 18 at a house where Durham police were investigating "suspicious activity." They found him hiding in a cabinet and arrested him on old warrants, firing a gun within the city limits and writing a worthless check.

Moses had to put up a $1,500 bond to get out of jail. He didn't show up for court today, according to NBC 17's 7 p.m. newscast. The missing boy's mother skipped her own court appearance earlier this month.

It is unclear, to me at least, when police developed the informant that told them Moses killed this child. Or when it became common knowledge that Moses, allegedly, manipulates women into moving around with him, and into supporting him because Moses "didn't work."

But doesn't $1,500 seem like a low bond for a suspected murderer and cult leader?

In lieu of flowers, please, for the love of God, buy a newspaper

The weekly paper in my town closed this week and ran its own obituary:

The Garner Citizen was preceded in death by the appreciation of quality print journalism. It leaves behind an entire community and numerous struggling writers, editors and designers.

In lieu of flowers, please, for the love of God, buy a newspaper.

Amen. And I hope you will do as I plan to March 28, when The New York Times launches a very reasonable online subscription plan: Buy a newspaper again.

Wait. What? Feds charge banks less interest than states

Not only did the federal government make $9 trillion in previously undisclosed loans to various banks to get through the financial crisis a few years ago, but it gave those banks a significantly better interest rate than it's giving state governments borrowing money to pay unemployment benefit payments.

According to CNN the interest rate on the bank loans was .5 to 3.5 percent. Loans to the states carry rates higher than 4 percent.

Voter I.D., an effective red herring

Voter I.D., I don't think I could hate you more as an issue.

You seek to stop people who aren't stealing elections from stealing them, while pandering to racists, and borderline racists.

Meanwhile, opponents argue that it's too difficult to get a photo I.D., or unreasonable to expect some people to have them, even when the state offers them for free.

There seem to be conservatives worried that Mexicans, hiding from authorities so they can get jobs in the U.S. and send money home to their families, are simultaneously prioritizing election fraud, possibly while speaking only Spanish.

Meanwhile Democrats are basically saying, a bunch of our voters are too old, black, Hispanic, poor or infirmed to have picture I.D. What great confidence that displays in people.

They say private school college kids and people who move a lot might have trouble voting. But bill drafting and a primary bill sponsor said Tuesday (paragraph 19) that I.D.s don't even have to have an accurate or in-precinct address to work on election day.

"As long as it's your picture that's on it," said Gerry Cohen, director of the Legislative Drafting Division.

Absentee voting — that becomes easier in the bill, which may well explode the "this hurts old people in nursing homes" argument while seeking to prevent fraud, based on the logic that people are more likely to attempt fraud in person.

Laws like the ones proposed in House Bill 351 have been upheld repeatedly by the courts, but of course the reason people talk about the constitutionality of requiring photo I.D. is not to win lawsuits, but to delay implementation, and to make it clear that race is deeply part of this debate.

The NAACP's state president left a copy of the 15th Amendment for legislators after Tuesday's public hearing on H 351. He called the bill "nuanced Jim Crow voter suppression of the 21st century."

So it's a great issue. Anything that reminds everyone that, 46 years ago, the Federal government had to decree that white people in the South damn well better start letting black people vote — yeah, let's talk about that for a while.

In fact, let's talk a whole bunch more about that for a few weeks instead of, say, the state budget. Or education. Or creating jobs. Because our elections are being stolen.**

I won't guess at the motives of Republicans pushing, successfully, for photo ID here and in other states. But it does seem an odd strategy to follow if you don't think the end game is that fewer people will vote for Democrats.

And as little as I care for covering and reading about this issue, voter I.D. was a GOP campaign promise here in North Carolina, and the GOP won big. So let's see it passed. Let's see if the governor vetoes it, and whether Democrats block another Republican overturn try. Then we'll see who's running North Carolina.

And if you really want to prevent in-person voter fraud, start by making voters dip their fingers in ink, which just looks cool.

And, if you're saying current boards of election aren't running clean elections, and that's why fraud is much more common than the relatively low numbers reported (paragraph 10), then argue to do something about the appointment process. It leans heavily in favor of the governor (scroll down), and clearly lends itself to one-party control of local three-member boards.

Or we can chase boogeymen. All of us. Leaders on both sides, the media, the voting public. We can chase boogeymen, and run around in circles.

** Sarcasm not meant for sheriff's elections, which you just expect to be stolen. Probably by Latinos and Democrats.

Fukushima Nuclear: Chin to the ocean

The "A" marks Fukushima 1 / Daiichi nuclear plant on the coast of Japan, the northern of two Fukushima coastal plants where a building exploded and meltdown concerns precipitated a massive evacuation of the surrounding area.


Image: Google.

Where do plant workers go when a Tsunami hits? Do they have time to shutdown the plant and make it to higher ground, then come back? Do they ride it out there?

Time: Nat. Guard suicide rate up 450 %

From Time Magazine:

The first shots killed his 26-year-old wife April and their 13-month-old daughter Lila, who was in her playpen. April's sunglasses remained perched atop her head, a pacifier stuffed into her back pocket. Lila, in pink socks, was wearing a T-shirt that read SPANK GRANDMA--SHE SPOILED ME. Magdzas, 23, next turned his gun on the family's three dogs, killing them all. Then he put the pistol to his right temple and fired his 14th, and last, shot.

There was one other victim that rainy summer day: the Magdzases' second daughter, Annah, who was in her mother's womb and due to be delivered by cesarean section the next day. ...

Matt Magdzas' final acts may be the worst spasm of violence committed by a combat veteran since the U.S. launched two wars in the wake of Sept. 11, 2001. But in taking his own life, he joined an all-too-common group: Magdzas was one of 113 National Guard members who killed themselves in 2010. The Guard's skyrocketing suicide rate, up 82% from 2009 and 450% from 2004, now exceeds that of active-duty soldiers. This fact underscores the plight of Guardsmen, who--unlike their full-time Army buddies--lack the jobs, support and camaraderie found on military bases after they return home from war. Instead, Guard troops go in the span of a week or two from fighting in Iraq or Afghanistan to living among civilians who have no idea what they've just gone through.

Debt points to business tax increase

If I own a business in North Carolina, or in any of the other 30 states that owe the federal government money for unemployment benefits paid out the last couple of years, this chart scares me.


Click image to enlarge.

Morgan Stanley produced this for the state of North Carolina, which is trying to figure out how to pay back what it borrowed from the feds. I added the big red circle, to highlight the fear. You can read more about this here and, in a broader sense, here.

But a couple of things I'll highlight:

• The N.C. Employment Security Commission, which manages the state's unemployment benefit system and showed itself to be a brilliantly run government organization last year, wouldn't answer my questions about this over three days.
• The federal government loaned North Carolina money at more than 4 percent interest. If the state uses bonds to pay off that debt, it's likely to pay about 2.35 percent. Why would the federal government charge other governments more interest than a private bank?

Pennies and Nickels: Seriously, why?

Perhaps you've seen coverage of last week's GAO report that concluded doing away with dollar bills in favor of dollar coins would save the U.S. $5.5 billion over 30 years.

And perhaps you've also seen "the best anti-penny rant ever." But if not:



In the interest of equal time, here are some of the arguments for keeping the penny.

The rich: More phones than people

The print version is even better (you remember magazines, right? subscribe today), but National Geographic has got some interesting graphics illustrating a range of human demographics worldwide.

This map shows income distribution, fertility rates, education, etc.




Click image to enlarge.

I have to think this is accurate, because National Geographic is pretty top flight. Let's hope those things don't really give you cancer.

Dear Newt: Good luck.

Dear Newt Gingrich,

You and me, we're Smyrna boys.

I know you're from Pennsylvania, and moved around a lot. But you were my congressman growing up, and that connects us well enough.

I remember when you came to my high school, Campbell High School, well known as the world's best high school, as I'm sure you'll agree.

Some hippie sophomore asked you a leading question, and you destroyed her. Oh, it was total. I remember that clearly more than 16 years later.

We've met a couple of times since, and you haven't erased that first impression.

Mr. Speaker, you won't be president. I know it. And you either know it, or should.

But that doesn't mean you can't run. Even extraordinary men have few chances to garner that much of their country's attention.

So if you have something to say, run. Or don't. But quit with this, and your 1,500 Facebook likes.

Or don't. Because you were an asshole when I was in high school.

Sincerely,

Travis Fain
CHS class of 1994

Update: As of Friday at 2 p.m., newtexplore2012.com is up to 1,847 Facebook likes. If he gets 1.4 million more he'll beat out the movement to abolish Croc sandals.

CORRECTION: L.I. general counsel in Florida, Erajh Panditaratne, CHS 1993, says this wasn't so much a "hippie sophomore" as a "moderately liberal senior." I stand corrected.

Bargain! $287K for inconclusive study

I'm nearly certain "terminal groins" are such a big story from time to time because editors know putting "groin" in a headline is going to grab readers.

This is what a Terminal Groin looks like:

That's Captiva Island, Fla., (zoomable) a terminal groin example from a 2009 / 2010 N.C. legislative study on groins.

You can look at that and probably feel comfortable the groin is keeping sand in right behind it, even if some sand was trucked in.

Harder to predict is what that wall does, say, half a mile away. And sand along the N.C. coast is kind of a zero-sum issue, since people's houses are surrounded with sandbags and will probably fall into the ocean soon.

A House legislative committee ordered a study on groins in 2009, hoping to determine whether lifting N.C.'s ban on them is a good idea. From the Winston-Salem Journal:

Six months later the study was done. It was 530 pages long, cost more than $287,000 to produce and determined that it's "difficult to draw conclusions" on whether terminal groins work.

Now, parts of that story were cut for space.

For example, one of the legislators who sponsored the bill requiring this study, state Rep. Lucy Allen, said it was "appropriately funded," then said she didn't read "any part of it."

Allen chaired the House Environment and Natural Resources Committee in 2009, but about the time the study was complete Gov. Bev Perdue appointed her to the state utility commission. That's why Allen didn't look at the study, she said.

The bill's other primary sponsor was state Rep. Pryor Gibson. Rep. Gibson said he wasn't happy the study didn't provide definite answers, but said groins were "way too big of an issue not to have the data collected."

But "organized" may be a better word than "collected" here. Given until April Fool's Day 2010 to finish the study, researchers reported back that due to "schedule and budget constraints ... no new data collection efforts were undertaken."

From study team's final recommendations:

Rather, available data (shoreline changes, nourishment and dredging activities, natural resources, etc.) were collected from as many sources as possible. Additionally, most of the data originally were collected for purposes other than determining the potential impact of a terminal groin. ...

The Commission has concluded that the general impacts of the groins, as reported in this study, tend to be lost in the “noise” of other inlet management activities. ...

"Based on the results, the (study) commission cannot make a determination that terminal groins would or would not cause adverse impacts on the environment or adjacent properties."

My questions to you: Do you think the state got a good price for this information? And was it reasonable to expect an answer to "take six months and tell us how these walls are likely to affect where the ocean puts sand?"

Senate GOP: Med reform will save you money on treatment

It's funny, when I wrote about medical malpractice caps last week I couldn't find anyone who would promise me the change would lower medical costs for the consumer

There was some vague idea that the caps would cut down on defensive medicine, thus saving money. But certainly neither of the two Winston-Salem hospitals I spoke to would commit to lowering rates, or say they expected to pay less for malpractice insurance.

But now that the bill has passed the Senate, Senate President Pro Tem Phil Berger is promising just that. From his office today:

Raleigh, N.C. -- The North Carolina Senate on Wednesday passed a bi-partisan bill reforming the state’s medical malpractice laws, a move that will attract quality doctors, bring new jobs and make health care more affordable and accessible for all North Carolinians. ...

Got that? This bill is going to make health care more affordable and accessible for more than 9.5 million people. I look forward to trusting insurance companies to lower their malpractice rates to help make that happen.

The rest Sen. Berger's release should be posted here shortly.