[PLUG-TALK] Malpractice (3)

Keith Lofstrom keithl at kl-ic.com
Tue Sep 7 12:13:00 PDT 2004

Russell> Medical malpractice may very well be a significant and
Russell> important issue to physicians, but as a health care cost it
Russell> is a red-herring, waved around by the Republicans to distract
Russell> voters and to enable continued looting.

Keith> Russell, you are smarter than that.  [...] Stop with the
Keith> aggregation nonsense, and think about PEOPLE for a moment.
Keith> Please observe some real data yourself, and construct your own
Keith> statistics.  We will both appreciate the result.

Russell writes:
> What I am really looking for here is some statistics that says
> malpractice is a problem that should be solved by legislating
> suffering and post-error maintenance costs out of sight.

Keith responds:

Well, you are not going to get that, because you are missing the
point entirely.  You create strawmen, attribute arguments to them,
and dismiss them with aggregate statistics.  You are having this
fight with the voices inside your head.  Leave that for Michael
Robinson, who should get treatment.  You are mostly sane, but
stuck in a behavioral rut.

If you re-read what I wrote, you will find I am addressing different
points, and talking about things entirely separate from legislative
solutions.  I think legislative solutions are what lazy, greedy,
totalitarian wusses (left and right) do instead of personally
responding to the individual needs of themselves and their neighbors.

I do not find it useful to think at the 10,000 foot level.  You
are talking from there, and I think it blinds you to many real health
care issues, which are individual, not aggregate .  The kinds of
injuries and mistakes you are talking about don't happen to populations,
they happen to individuals, and solutions will occur at the individual
level.  Use the right tools.

When we degenerate to legislative solutions, we've all agreed that
actually rolling up our own sleeves, opening our own wallets, and
making our own difficult personal choices about helping particular
others doesn't even have to be considered, that we will only
condescend to "help others" if some faceless bureaucrat does it
and some other faceless "rich person" pays for it.  Fuck that. 
With all the sincere and passionate vigor I can summon, FUCK THAT


To give you a little subtext, I grew up poor.  No father, crippled
sister, sometimes no food, walked a lot, worked three jobs before
and after school to earn money for college, poor.   And I knew
lots of people who had it far worse than I.  My poorly-paid,
managerially abused, working mother made sure that we had something
to give to those people.  Personally, not through some big
bureaucratic machine.  I've seen plenty of those machines.  They don't
fucking work.  They are lies, to hoover up the excess wealth and
charitable feelings of the middle class, and make sure the booty
goes instead to bureaucrats, the commercially inept second children
of the financially comfortable.  And I've heard goddam plenty of the
hate-the-rich rhetoric.  It is what the comfortable feed to poor
people to freeze them in place, and frighten them out of bourgeois
workplaces and neighborhoods and schools, and making them into angry
soldiers for this or that bureaucratic interest.  And I've seen an
awful lot of the "God loves the poor, so do we from inside our nice
safe suburban churches, here's some Bible tracts, heal brother, go
away" shit that the Fox channel crowd is prone to. 

That said, there are social workers who care, and a lot of church
people who care.  They bare their souls, commit their lives, and
dive deep into the dog doodoo to rescue the people that are drowning
in it.   They do this for personal reasons, not because their 
institutions facilitate it.  I don't care to attack institutions,
because inside most institutions are people like this that do the
necessary good work, regardless of how corrupt the institutions or
the other cow-orkers are (Wil, love that!).  What I do know is that
if I attack an institution, it is the good people that will end up
catching it, while the evil ones will dodge.  That is because when
I am attacking institutions rather than individual error, I am
already blind to the truth and can't aim straight.  It is better
to create new institutions, which may briefly avoid corruption.

I am a proud member of the open source movement because it is the
best way I know to take the skills and talents I have, and do a
little of what those good people do.  I am not out to attack
Microsoft;  I am out to help the gal with the crashed hard disk or
the guy with the blue screen of death move past their crisis and
get their real job done.  Someday, that may even save a life or two.
Not big world shaking events, sure, but those big world shaking 
events are usually myths, ways of transforming the slow, incremental,
day-to-day improvments at the individual level into a comprehensible
story.  We easily get discouraged if we look for "big events" in
own lives, but a patch here and a FAQ there can improve hundreds
of lives.  It takes some faith, sometimes.  

Now, back to our regularly scheduled yapfest:

Russell writes:
> I think the problem could be solved in a number of different creative
> ways, some of which I've sketched out.  For example, by society
> insuring that people injured do not become immediately destitute, as
> they essentially are today.  Even just by doing that, you've given
> society an interest in creating systems for minimizing errors and
> maximizing health.  I am uncomfortable with the idea of solving it
> solely on the backs of the people who are injured.

Keith responds:

Well, that is the way it is now.  What I have been trying to point out
is that there is NO OTHER PLACE that the money comes from, RIGHT NOW
IN 2004, than out of the resources that we use to take care of people
with problems.  If you divert $20M to an ambulance chasing lawyer 
from North Carolina, that is $20M less to take care of real individuals
with real medical problems.  $20M less to save the lives of Joe and
Fred and Sally and hundreds of other people.

I don't like caps in particular, either.  I was mentioning a
problem, and showing that it is real, and illustrating the damage
this problem does.  Unless you acknowledge the problem (and it is
NOT describable as some aggregate 2% out of some other aggregate 100%,
it is the damage the malpractice approach does to real doctors and
their real patients) then you cannot possibly understand the issue.

For example, if I were Czar I would limit jury awards to 100X of
what the jury members are willing to cough up themselves.  If they
think poor Mr. Jones suffered horribly from the bad mistake of
Doctor Smith, then if they can pungle up $1000 among themselves
to contribute, they can force Doctor Smith pay $100K.  This is
sympathy, right?  They have a bunch of it, right?  And of course,
you know what happens when choices involve personal cost.

So there's your "cap", if that is all you wish to talk about.
Personally, I find it boring and beside the point.   If I was Czar,
I would burn down the Kremlin and abolish the office of Czar, and
distribute the armory to the peasants so they could shoot the next
clown that claimed to be one.

So can we end the discussion about caps and other legislative
solutions (and remember, this started because somebody wanted to
pass a law against free advertising pens to doctors) and talk 
about what the real problems are?   "Ready, fire, aim" doesn't
work.  Let's identify the bug before we make the patch.  If we
cannot agree about the bug(s), it is pointless to yammer about

If I understand Russell, his big concern is that if Republicans
(those spawns of Satan) cap the current tort system, then those
individuals currently getting above-cap awards will go without
the necessary resources to get through what remains of their 
economically crippled lives.  Russell has other issues, too, but
lets take them one by one, like professional problem analysts.

How much does it cost to keep a person alive?  Well, my mother's
adult foster care costs $3000/month, and could rise to $5000/month
if she loses the ability to feed and dress and toilet herself.
The latter is $60K/year, which can be produced indefinitely by
the proceeds of an annuity costing perhaps $500K.   No big 
"above cap" awards needed yet.

Perhaps the "victim" has pre-existing commitments like a family;  
they are no longer able to support that family in the manner they
had planned on.  Shouldn't the family have as much money after the
"victimization" as before, keep their home, go to college, have
nice vacations, etc?


Russell uses numbers of like $600M/yr for payouts for torts, and
that means about $300M/yr makes it to the victims.  Much of that
money is paid in small amounts; we can estimate perhaps $200M/yr paid 
on big, $1M+ torts.  So what we are talking about is less than 200

Out of your personal experience, how many families do you know that
have lost their homes, vacations, perks, or whatever due to sickness,
accident, divorce, crime, job loss, or rabid (Republicans/Democrats)
poisoning wells and eating babies?  Do your friends get to pick
somebody to sue so they don't have to change their lives?  No. 
Tragedy is part of life.  Tragedies that involve lawyers are NOT
inherently more deserving of compensation than tragedies that
don't - unless, of course, you have a lawyer fetish.   So why
should the victims of tragedies involving lawyers be "made whole",
when the rest of us poor saps just have to suck it up and move on?

I think there is a Cinderella fantasy going on here, the idea that
life will stop being ugly when the prince (aka handsome North
Carolina ambulance chaser) arrives.

But the big judgments go beyond "making whole".  They sometimes
sink to the Rawlsian level of "making things just as good".  How
many Porsches and big houses and prostitutes do you need to make
life just as good as it was before you were blinded, paralyzed,
and left in constant pain by some horrible mistake?  No amount of
physical things will compensate.  Does this mean you are entitled
to an infinite judgement?  No, because the two things are
incommeasurate.  Apples and oranges.  Sometimes all it takes to
get to "just as good" is a change in attitude, a re-evaluation of
what life is for.  How do you measure that?

We could, instead of thinking "local Rawlsian" or "expectation
Rawlsian", think "global historical" Rawlsian.  Damn near everyone
in this country has it better than the "average" person in most
times, most places.  Hell, the average person in prehistoric
times died of disease or starvation before puberty.  So if we
"compensate" victims to THAT level, rather than some imagined
entitlement to a pain-free wealthy existence, then most tragedy
victims owe a refund.  And almost all the rest of us owe far more.

In economics, there is an enlightening concept called "revealed
preference".  Two economists walk by a Ferrari showroom, and one
looks in the window and says "I would like one of those".  The
other says, "Obviously not!".  Economists ROTFL when they hear
this.  Why?  The first economist could train for a higher paying
job, scrimp and save, forgo many other luxuries, and buy a 
Ferrari.  No car costs more than a diligent degree-capable person
can earn.  But instead of the Ferrari, he chooses to be an 
economist, walk the streets with his friend, and make wishful
(but unsubstantiated) verbal claims.  Mouthgas.  It is far easier
to say something than to do it.  Which is why we believe in magic
spells, Gods that create with a Word, and politicans.

A person that says "society must help the poor", but is unwilling
to spend a dime of their own discretionary funds,  has revealed
their preference - the poor deserve nothing.  All the mouthgas in
the world is hypocritical posturing. ( Nerd note 1: For those of
you hard coding hackers that don't get out much, it is impolite to
mention this among liberals and megachurch Christians and other
hypocrites;  expect some rancor if you do. )

Revealed preference applies to tragedy, too.  You can tell how
much a person really cares about their future by how much they
spend on life insurance and disability insurance.  In other words,
if you think the future of your family is really worth $20M, then
you have a $20M life insurance policy.  

Since the vast majority of life's tragedies do not occur in lawyer
mediated situations, a prudent person prepares for them.  And you
go without some goodies now to do so.  

That said, folks that reveal their indifference to future loss by
NOT having insurance, or who are too cheap to pay for insurance 
that covers what they claim their future needs will be, are NOT
entitled to a large compensation from others if they are "fortunate"
enough to have a tragedy involving lawyers.  

So, a more serious cap than my "jury contributes" joke would be
that compensation should be limited to the victim's own self-chosen
insurance level.  Revealed preference.  

And before you say the poor can't afford such insurance, I'll say
my mother paid for it, and we went without so she could.  Instead,
I'll be hard hearted and cruel and say there are some poor folks
(and many not-so-poor folks) that would rather have a color TV
than a future.  I agree with their choice;  the future does not
need such people in it. (nerd note 2: again, it is strategically
unwise to say this on Emily's List and to folks with the Jesus fish
on the ass end  [why is it always the rear?] of their Mercedes;
they agree with this statement by their actions, but it is bad
juju to say so.)

Lawyers are people that make their living by convincing other people.
That is why so many of them end up in politics.  Obviously, the
very good ones, such as certain ambulance chasers from North Carolina,
have many people convinced that the particular legal defect that 
supports these rich lawyers is all that stands between victims
and destitution.  It is no surprise to me that many otherwise
intelligent and caring individuals fall for this nonsense.  It is
when these individuals take it one step further, and assume the
lawyer's dirty work is the best way, or even the only way, to take
care of tragedy that my hackles rise.  When good people do nothing ...

Russell writes:
> And when you cap jury awards, because caps are a good way of
> arbitrarily solving problems, please cap physician salaries and health
> insurance executive compensation and health insurance company profits
> too.  You do that, and I'll go along with the package deal.

Keith responds:

I know.  You keep talking about package deals.  Package deals are
the subtext of the whole election.  Everybody must do this.  
Everybody is forbidden to do this.  It is the totalitarian core
of the demopublican message.  What the hell happened to freedom?

Russell writes:
> Or maybe I misunderstand your solution.  Thinking back, I don't recall
> what your solution is.

Keith responds:

I gave a number of solutions.  You are only responding to caps/no-caps
and a single legislated solution influenced by a the national scale
statistical construction of one binary bit (vote bush/kerry binary
buzz click) and I am not providing you with input that you can react
to in the approved binary manner.  Which sucks, because you have a
beautiful mind when you engage it.  Don't reduce yourself to a flipflop.

Let me give those solutions again:

1) Personal responsibility for health.  Eat right, exercise, and listen
to your doctor.  Or find one you can listen to.  Pay for your own visits,
and your own pills.  

2) Personal responsibility for your sympathies.  If you think people are
suffering, find them and help them, directly, out of your own resources.
You will be pleasantly surprised at how much the right people will 
appreciate your efforts.

3) Data gathering.  Find out what is happening with your own two eyes,
and evaluate it with your own brain.

4) Professional participation.  Contribute to open-source projects that
help heal people.  The Freegeek SQL-clinic project is an excellent 
possibility, well suited to Russell's particular talents.  Many other
projects await the talents of the rest of you.  Open source is sooo 
cooool, almost any itch you scratch will help some doctor somewhere
cure somebody, or some patient reduce the stresses that send them to
doctors in the first place.

... and may I add, if you try these solutions and they work for you:

5) Convince others that the world improves through participation, not
political posturing.  Leave the mouthgas for the mentally ill zealots
who threaten their political enemies with shotguns.  Don't expect sane
people to pick sides in a barroom brawl.

One person doing these things can do more good for more people than
any North Carolina ambulance chaser, without the nasty side effects.

Leave the attack-based legislative and courtroom "solutions" to the
glib but vicious negative-summers.  If enough of us work on creating
real solutions and real wealth, we can easily afford mental health
facilities to take care of these pitiful maniacs.  We could call
the first-level care facilities "congresses" and the advanced care
facilities "white houses", and the commitment proceedings "elections". 
Just make sure there are plenty of wards, keep them away from
pointy objects, and never, ever term-limit them ...  :-)


Keith Lofstrom           keithl at ieee.org         Voice (503)-520-1993
KLIC --- Keith Lofstrom Integrated Circuits --- "Your Ideas in Silicon"
Design Contracting in Bipolar and CMOS - Analog, Digital, and Scan ICs

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