Friday Link Roundup

  • The folks over at Abnormal Use have a fascinating interview with University of Maine law professor Jennifer Wriggins, who has just published a book, “The Measure of Injury: Race, Gender and Tort Law,” which deals with how plaintiffs of different races and genders are compensated under personal injury law. Consider a wrongful death action involving a child who has no history of earnings.
    Under most wrongful death statutes, the child’s estate is entitled to recover her lost lifetime earnings. Normally, the value of these earnings is determined by economist expert witnesses, who rely on tables of data relating to incomes of adults. Because of the income gap between men and women, the lifetime earnings of a woman will be assumed to be less than a man. And so the a girl victim of a wrongful death may be under-compensated.
    Coincidently, over at The Volokh Conspiracy the other day, Eugene Volokh blogged his criticism of a Texas wrongful death case where the judge excluded evidence that the wrongful death victim was an immigrant with a forged green card. The defendant corporation in that case tried to use the fact that the worker was subject to deportation to argue that the the victim’s lifetime earnings should be discounted. (If deported to his native country, his income would be substantially less than what it was in the United States).
    It seems to me that the Texas courts (for once) made the right call. The phenomenon of disparities in compensation partially based on race and gender is one I hope to get a chance to blog about in the near future.
  • There’s so much great legal information on the web now, that often I miss some of the best sources for a topic I’m blogging about. In blogging about the Feres doctrine last week, I missed some of the great posts that Professor Bernabe has done on the topic. For an in-depth treatment of Feres, you can click here.
  • Of course the story that dominated this week’s news was the death of Osama Bin Laden. I just got done talking about all the great information that’s available for free on the web nowadays, including legal information, but not everyone takes advantage of it, such as these people who have no idea who Osama Bin Laden is. If you know how to Twitter, how can you not know how to Google?

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The (Supposedly) Quaint Notion Of Professionalism And Its Place In The Health Care Debate

working togeather.gifA couple of weeks ago, Nobel Prize-winning New York Times columnist Paul Krugman posted a blog entitled, “Patients Are Not Consumers,” in response to continually hearing both sides in the health care debate apply the erroneous label of “consumers” to medical patients.
Krugman wrote that medical care cannot be reduced to a commercial transaction. Medical ethics forbids doctors from treating the doctor-patient relationship as a commercial relationship.
Of course, a lot of us seem to have forgotten that fact or to be ignorant of the requirements of professional ethics that limit doctors’ conduct. As Krugman writes:

The idea that all this can be reduced to money — that doctors are just people selling services to consumers of health care — is, well, sickening. And the prevalence of this kind of language is a sign that something has gone very wrong not just with this discussion, but with our society’s values.

Krugman’s blog post came in for ridicule in some quarters. Indeed, some liberal types, like Matt Yglesias, think that medical care involves transactions that are, for all intents and purposes, commercial.
Nowadays we seem to only be able to view non-social interactions between people, whether doctor and patient or lawyer and client, through the lens of profit and loss.
The proponents of such a world view seem to think that they are simply embracing a form of realism – they are describing the world as it actually works. But, that’s not the case.
Doctors, like lawyers, by and large behave in accordance with a higher code than the almighty dollar. If they don’t, they can lose their licenses to practice law or medicine.
People, like political pundits, who work outside regulated professions sometimes fail to grasp the difference between a professional’s relationship to his or her clients or patients and the relationships between people in a typical business transaction. The two types of transactions are vastly different and different rules apply. Imagine you’re a corporation and you don’t pay your lawyer. Your lawyer can’t simply decide not to file a motion for you because he has not gotten paid; a lawyer has a professional duty not to drop the ball for the client despite the non-payment. But fail to pay your dry cleaner and see what happens.
If you’re a home builder and you walk away from a job, you may get sued and, if the job winds up costing more, you may have to pay in damages the difference between your contract price and what the job ended up costing to complete. But you will still be able to practice your trade, to build homes for other people.
If you’re a doctor, on the other hand, and you walk out of the operating room in the midst of an operation, you’re very likely to lose your license to practice, regardless of whether another surgeon is able to come in and complete the surgery without any injury to the patient.
These rules of professional ethics govern doctors and lawyers in their day-to-day conduct; witness the recent kerfuffle over King & Spaulding’s decision to withdraw from defending the Defense of Marriage Act before the Supreme Court.
The people in the health care debate who believe the relationship between doctor and patient is a purely commercial one may consider themselves cold-blooded realists, but so long as they don’t understand the ethical duties that doctors owe their patients, doctors’ behavior will always remain mystifying, as it will defy their economic models that presume doctors should act as self-interested value-maximizing characters in providing health care.
Instead of running down and mocking the notion that a relationship could have any ideal higher than the profit motive, we should be celebrating such high ideals and helping them to flourish.

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Health Care And Income Inequality: How Poverty Makes Us Sick

s-INCOME-INEQUALITY-large.jpgWhen we talk about what we need to do to make quality health care affordable and available to all, people (including card-carrying liberals like Barney Frank) tend to talk about the supposed need for medical malpractice reform, or about capping Medicare benefits or more comparative effectiveness research. But, in a nation where the top one percent earn twenty-four percent of the nation’s income and control forty percent of its wealth, no one seems to be talking about the effect that income inequality has on health care delivery and outcomes.
But that’s changing. Awhile back, I blogged about the new book “The Spirit Level,” about the negative effect that income inequality has on public health.
And recently a New Yorker article entitled “Poverty Clinic” drew more attention to cutting-edge research suggesting that poverty and trauma can, in and of themselves, cause poor health outcomes.
The new thinking traces its origins to a study commissioned by the Kaiser Permanente H.M.O. in the mid-1990s. The study measured patients’ so-called “Adverse Childhood Experiences” (ACE) scores and assessed the patients’ health. A lot of the circumstances that are factored into determining ACE score – such as growing up with parental divorce and family members with mental illness or substance dependency – also tend to disproportionately affect children living in poverty.
What the researchers found stunned even them.
Patients with high ACE scores grew up to be at very high risk for suicide, drug abuse, cancer and heart disease. The drug abuse and suicide didn’t surprise researchers that much. Initially researchers thought that the cancer and heart disease could easily be explained away too.
They hypothesized that the ACE scores/poverty of the patients was merely correlated with the heart disease and cancer and was not the cause of it. They imagined that poorer patients ate less healthy and their diet led to the cancer and heart disease problems.
But it turned out that it was more complicated than that. Researchers found that patients with high ACE scores who didn’t drink, who didn’t smoke and who were not overweight were three hundred percent more likely to suffer from heart disease. Childhoods filled with poverty and trauma were affecting patients’ health through some sort of causal mechanism that had nothing to do with unhealthy behaviors such as smoking or overeating.
The exact pathways by which childhood trauma lead to poor health are not well understood. But research shows that childhood adversity can actually alter the chemistry of DNA in the brain through a process called methylation. Childhood trauma can cause complex lifelong changes in endocrinology and brain chemistry.
As Dr. Vincent Felitti, one of the co-authors of the ACE study, points out, we spend billions of dollars each year on statins because we know that having a cholesterol reading above 240 doubles your chance of heart attack. But so does having an ACE score greater than 4.
So maybe, if we’re trying to reduce heart disease, we should be looking to reduce some of its root causes such as childhood poverty and its associated traumas.
Health care is not (solely) a budgetary issue. Addressing health care also means addressing other social issues, such as the poverty and inequality that many Americans are born into.

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