A New “Hotspot” Video

We’ve blogged before about so-called “medical hot spotting.” The technique promises to bring down the costs of health care dramatically by concentrating health care resources in the right places, much like, in the mid-1990s, police began to bring down crime rates by concentrating police patrols in the right areas. Now PBS’ Frontline has done a ten minute segment on hot spotting, which you can watch here:

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Link Roundup

  • Hundreds of doctors who have been disciplined by their own hospitals or insurance companies have escaped discipline by the board of medicine in California, according to this Los Angeles Times expose. The personnel at the board of medicine blame budget cuts for their inability to keep up with doctor misconduct.
  • The Freakonomics blog features a new research study showing that a car that weighs 1,000 pounds more than the average car is forty-seven more percent likely to cause a fatality when it is involved in an accident with another car.

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World’s First Driverless Car Accident Requires Rethinking Of Rules Of Legal Liability

google car accident.jpg

Today came news that a prototype robot-driven car, developed by Google, was at fault in a car accident near Google’s Mountain View, CA headquarters. Google’s engineers, for their part, claim that a human driver who overrode the robotic autopilot was at fault in the accident, rather than the software that normally drives the vehicle.
Robotically-driven cars are inevitable. The Google Car involved in the Mountain View accident had logged 160,000 miles without incident. We are really close to the mass development of very reliable robotically-driven cars.
And when the day comes that robotically-driven cars are common and their use widespread, we will have to have a reworking of the current legal regime of fault-based negligence in car accidents. Ideally, we should get started on that overhaul of our legal principles right now to insure that fear of liability does not stifle the marketing of driverless cars.
To see why we need to change the laws that govern car accidents in order to accommodate driverless cars, imagine a situation where a driverless vehicle is responsible for a car accident and the human operator did not interfere with or override the robot pilot. Who should be liable for the damages? The “driver” who did nothing other than sit in the car’s driver seat and select the car’s destination?
It would be difficult to hold the human “driver” at fault in such an accident under the fault-based negligence regime that currently governs car accidents. After all, the conduct of the driver who caused the accident (getting in the car, programming in the car’s destination) is indistinguishable from the conduct of the driver who gets in a car, programs its destination and arrives safely at his destination. It is difficult to see how the conduct of the former driver, who got in an accident, can be considered negligent, given that our Anglo-American concept of negligence requires that a person liable for negligence have acted “unreasonably” and the driver who was involved in the accident acted in the exact same way as the driver whose voyage was entirely uneventful.
Since, presumably, most accidents involving robot-driven vehicles will be due to some software error, perhaps the victims of robot car accidents will sue Google or other robot car manufacturers in product liability actions for selling defective products (defective software code). Such a system would insure that accident victims are compensated, but it would also mean that robot car manufacturers — the Googles, Fords and Toyotas of the world — would become the insurer of every car accident. Could any car manufacturer afford such a burden? Likely not.
It seems what we need therefore — in order to insure that the victims of robot-driven cars are compensated — is new legislation which would change the common law rules that govern car accidents. In particular, we need a system of compulsory auto insurance and a new legislatively-created rule that the owners of driverless cars are responsible for all accidents that they cause, regardless of whether they were piloting the car at the moment the accident occurred.
Such a change would replace our current negligence-based system of liability for car accidents with a strict liability regime that makes cars’ owners automatically liable for any damage caused by their cars, but it seems the only workable legal framework for a future of driverless cars.
Under the current legal regime, car manufacturers would have to insure every accident on their own, a burden that no company, even one as large as Google, can afford.

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Kaiser Health Sues Hospital Chain For Padding Bills

dollar-sign-clipart-profits-up-prev1175393776ezKR76.jpgKaiser Health, one of the largest health insurance companies in the nation, is suing Prime Health Services, Inc., for taking Emergency Room patients and unnecessarily having them stay for extended periods of times on an in-patient basis, as part of an alleged scheme to drive up the price tag of the hospital visits.
Patients who were victimized by this practice report having difficulty checking themselves out of the hospital — even when they were in good health.
This is just another example of the biggest problem with American health care. The costs of medical malpractice — direct and indirect — are a tiny portion of health care spending. The real problem with American health care is that the financial incentives all align for providing unnecessary care and overtreating, rather than preventative care.

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Law Blog Roundup

  • This is one that I wish I had time to blog about. The Atlantic‘s Andrew Cohen wrote an article about a train crash in California that killed twenty-four people and seriously injured a hundred more. In 1997, Congress passed a law called the Amtrak Reform and Accountability Act that capped damages in train crashes at $200 million. Sounds great — until you have a train crash that injures over one hundred people seriously and their lifetime’s lost incomes, future medicals, etc. amount to more than $200 million. Then you have a heart-wrenching situation where a judge has to determine who gets what, potentially leaving some people without enough money to pay for their medical care.
    PointOfLaw’s Ted Frank, a tort “reform” advocate has tried to distance the tort reform movement from the mess, saying, “no reformer I know of proposes per-accident caps [on damages] or economic damages caps,” insisting that bona fide tort reformers limit themselves to caps on pain-and-suffering.
    Professor Bernabe replies here. The idea that tort reforms do not support caps on economic damages or other drastic reforms is completely risible. For instance, if you search older posts on his blog, Professor Bernabe has chronicled a nascent tort reform program: the abolition of joint-and-several liability. (A definition of joint-and-several liability can be found here). Tort reformers don’t want to limit merely economic damages. They’ve embarked on a root-and-branch campaign to make lawsuits futile to file. And if mainstream tort reformers are opposed to caps on economic damages, they’re killing us with their silence.
  • Killer Cars: An Extra 1,000 Pounds Increases Crash Fatalities By 47 Percent

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Should Lawyers Need Law Licenses?

Lawyer Requirements.jpgThere’s a new book being published by the Brookings Institution think tank that is attracting a lot of attention in the blogosphere (see here, here and here). The book, authored by Clifford Winston, Robert Crandall and Vikram Maheresi is entitled “First Thing We Do, Let’s Deregulate All The Lawyers” and its premise is simple: you shouldn’t have to go to law school, pass the bar exam or obtain a law license in order to be a lawyer. Winston, Crandall and Maheresi argue that the requirements that lawyers spend three years in law school and pass the bar exam in order to obtain a law license are merely anticompetitive measures that drive up the costs of lawyers’ services and insure that some poor people who need lawyers cannot get them.
It may make me a bit of a pariah as a lawyer, but I wholeheartedly agree.
Lawyers are rarely called upon to make a defense of the regulation of their profession, but when they do, they usually insist that the law school-and-bar exam educational complex is necessary to protect people from bad legal representation. The thinking goes that, if not for regulations mandating that lawyers attend law school and sit for a bar exam, the market would be flooded with all sorts of shysters. Regulation of lawyers is necessary to protect consumers from their own ignorance.
This is a patently bad argument. The same argument used to be trotted out by members of medieval guilds. Under the guild system, in order to sell candles you had to be a member of the chandler’s guild. In order to sell shoes, you had to be a member of the shoemaker guild, and so forth for dozens of occupations. The guilds used to insist that such restrictions on competition were necessary to insure that consumers got a product that worked. Otherwise, the thinking went, the marketplace would be flooded with candles that didn’t burn and shoddy shoes. But, eventually, these craft guilds were abolished and consumers weren’t injured. The candles continued to burn just as well and, in fact, they got cheaper. Consumers benefited.
Today of course, if I want to open a factory and manufacture candles or light bulbs, there are no regulations that I have certain training or experience. The market will sort it out.
The same result would no doubt obtain if law licensure requirements were abolished.
Yes, legal services are different from consumer goods like eyeglasses and light bulbs. A consumer who buys a pair of eyeglasses or a light bulb knows, after purchasing, if he has gotten a quality piece of merchandise. That doesn’t necessarily apply to the consumption of legal services: a lawyer knows a great deal more about the quality of his goods than the client.
But, in a de-regulated legal profession, lawyers would find a way to signal their quality. Just as Nike brand sneakers signal a particular level of quality, a Nike-branded law firm would signal a particular grade of legal representation. Moreover, third-party vendors and consumer media outlets would also provide quality assurance.
If any lawyer truly believes that the public would be harmed by incompetent legal representation in the absence of some regime of professional licensure, ask him who he thinks could do more harm to his law firm — a first-year law associate or the firm’s IT professional? The answer of course is the IT guy: with a few keystrokes, he could delete the firm’s entire file system. A first-year lawyer at the firm could never do so much damage. And the firm’s IT guy does not need to possess any credentials to hold himself out as an “IT guy.” Nevertheless, I have yet to hear of a law firm imploding due to incompetent IT personnel.
The fallback argument for many defenders of legal regulation is not that people need protection from low quality lawyers but that our system of justice requires men and women of high character to be lawyers. Any knave can be a fishmonger, the thinking goes, but lawyers occupy a position of special public trust. We at least need some barriers to entry to insure the practice of law does not devolve into a free-for-all with lawyers of bad character suborning perjury, comingling client funds with their own, and engaging in all manner of other malfeasance.
Of course, politicians occupy positions of public trust equal to or greater than the special position occupied by the average lawyers. And we don’t require politicians to pass some test before they assume office. Instead we have ethical rules that apply to their conduct once they assume office. And the same sort of regime could preserve the public trust placed in lawyers: you don’t have to pass a bar exam or a character and fitness test to get in, but once you’re in, you better play by the rules or you’ll face expulsion.
Whether lawyers like it or not, sooner or later the legal profession is going to have its entry requirements abolished. Top lawyers are now seeing their hourly rates climb to $1,000 an hour. The legal fees in the GM bankruptcy might top $1 billion. That’s real money, even at the Fortune 500 level. And when corporations feel oppressed by legal fees, they will lobby for stripping away the anticompetitive restrictions that drive up their legal bills. For lawyers contemplating what a deregulated profession will look like, it’s not a question of if, but when.

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The Casey Anthony Closing Arguments And “Temporal Variance”

Casey Anthony.jpgThis past week, over at Volokh Conspiracy, law professor Mitch Berman has been blogging about “temporal variance” in the enforcement of rules by referees and judges. The idea of “temporal variance” is well known to any sports fan, even if Berman’s phraseology is not. The idea is that, by unwritten consensus, different sets of rules are enforced at different times of contests — whether they be legal, athletic or some other kind.
Toward the end of a game, or in playoff competition, referees enforce a different set of rules than normally applies. They tend to “let the players play” and to avoid calling ticky-tack penalties.
Abiding by these unwritten rules is a part of sportsmanship and good conduct. It violates the unwritten rules of the game, whether it’s hockey or soccer, for players to flop and seek to have the referees intervene to influence the outcome of the match.
In reading through some of Berman’s blog posts on “temporal variance,” one recent, very prominent example of the “let the players play” norm being violated sprang to mind: Jose Baez’s closing argument in the Casey Anthony trial. I watched hardly any of the trial but I caught a chunk of Baez’s closing argument and, as a lawyer, took offense at the gratuitous objections made by the prosecution. The prosecution’s offense — their numerous objections, which interrupted the rhythm of Baez’s closing — was an example of temporal variance in action.
Normally in a trial, when the opposing side tries to do elicit some evidence that you think shouldn’t be allowed, you rise to your feet and announce, “Objection!” The judge/referee will then either sustain the objection or overrule you.
But in closing arguments, by unwritten rule, you don’t do that. If the other side says something you find objectionable, you wait until she finishes her closing argument, approach the bench at sidebar and ask for a limiting instruction to the jury or for your objection to be noted for the record. It’s considered truly bad form to interrupt the rhythm of someone’s closing argument to lodge an objection in open court.
Closing arguments in a trial are the ultimate playoff moment, the time of “let the players play.” There’s no rule of evidence that says a different standard applies during closing arguments, but one does.
Watching Baez’s closing argument in the Casey Anthony case, I became infuriated at the prosecution’s incessant objections on the most minor points. It truly seemed to me that the prosecution were exhibiting poor legal conduct, something analogous to the kind of poor sportsmanship implicit in a player flopping on the ground and looking for a call. But even worse, because a contest where someone’s life is at stake calls for a much higher standard of conduct than the norm.
And it seemed to me that Judge Belvin Perry did a poor of refereeing the closing. Instead of rebuking the prosecution for their petty objections, Perry carefully considered each one of the prosecution’s objections before deciding whether to sustain or overrule it. (Perhaps this is the byproduct of Florida’s elected judiciary; if we chose our referees by popular vote too, they might be wondering how their calls would be reviewed come election time).
Given the fact that prosecutors Jeff Ashton and Linda Drane Burdick seemed to give so little honor to the unwritten rules of the legal contest, it came as little surprise to learn this week that the prosecution may also have violated a legal rule graven in stone: the constitutional rule of Due Process that the prosecution turn over to the defense all exculpatory evidence in its possession. According to reports, software designer John Bradley alerted prosecutors that a key piece of evidence in the Anthony trial — the number of times that Anthony supposedly googled “chloroform” — was mistaken. There was a flaw in his software that made it seem like Anthony googled “chloroform” 84 times when in fact it had only been googled once. Yet the prosecution did not disclose Bradley’s admission of error to the defense and argued to the jury that Anthony searched “chloroform” 84 separate times.
The rules of the game might vary with time, but it seems like one’s character and sportsmanship are constants.
PS — For any lawyer who agrees that judges ought to employ some form of “temporal variance” consider the following question: it’s the middle of trial and the plaintiff has a great case on liability — unfortunately plaintiff’s only viable claims are outside the scope of the complaint. Should a judge allow an amendment freely in the middle of trial? Or should the judge deny any motion to amend the complaint?
It might seem that allowing the amendment would most embody the “let the players play” ethos: it would allow the contest to be determined by a good old-fashioned slugfest in front of the jury. On the other hand, in this type of situation, it’s hard to think of a call that would more clearly involve the judge placing his or her thumb on the scales to influence the outcome.

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“Hot Coffee,” Jamie Leigh Jones And Why Mandatory Pre-Dispute Arbitration Is Still A Bad Idea For Consumers And Employees

Hot Coffee.jpgSeveral weeks ago, I blogged about “Hot Coffee,” a new documentary airing on HBO, that exposes the radical ways in which tort reform advocates are taking Americans’ rights hostage, much to the obliviousness of the typical American. “Hot Coffee” focuses on four legal obstacles that tort reform has placed in the way of ordinary people.
One of those roadblocks is mandatory pre-dispute arbitration. The term is a mouthful but “Hot Coffee” powerfully explains this kind of arbitration through the story of Jamie Leigh Jones. Jones was an employee of Halliburton subsidiary Kellogg, Brown & Root (KBR), working in Iraq. She sued Halliburton/KBR for a brutal rape and false imprisonment that, she said, took place at the hands of her coworkers.
But Halliburton/KBR wouldn’t let Jones get her day in court. As soon as she filed in court, Halliburton asked that her case be forced out of the court system into arbitration. When Jones had signed on with Halliburton, she signed a lot of paperwork, including an agreement stating that, if she ever sued Halliburton, Halliburton had a right to force the case into arbitration.
Halliburton managed to keep Jones in arbitration until Sen. Al Franken got a law passed that prohibited defense contractors from enforcing such arbitration agreements. Jones finally got her day in court and last week she lost, a Texas jury finding against her. Now, a number of commentators in the legal blogosphere are using Jones’ loss to undermine “Hot Coffee’s” critique of arbitration.
Despite the Jones verdict, however, mandatory pre-dispute arbitration agreements remain a bad idea. They cost consumers billions. They encourage dishonest and sharp practices by business. They are profoundly un-American.
First off, I should probably be clear about what I mean by “mandatory pre-dispute arbitration.” I’m referring to a private system for dispute resolution. There are no jurors, there are no jury trials in arbitration. Either a single arbitrator or a panel of arbitrators hears your case and decides it. Either one or both of the parties to arbitration pays the arbitrator a fee to hear the case, fees that vastly exceed what it costs to file a case in court.
Who are these arbitrators? They may or may not be lawyers. There really are no legal requirements for who can be an arbitrator.
If the lack of credentialing requirements makes you worried if you’ll get a fair hearing in arbitration, you should also be worried because there’s no right of appeal. If you lose in our civil justice system, you can appeal to a higher court. But if you lose in arbitration, there is no authority higher than your arbitrator.
It used to be the case that if an arbitrator came up with a completely off-the-wall ruling, you could appeal to a court under a “manifest disregard of the law” standard. If you could show that the arbitrator’s ruling was in manifest disregard of the law, you could get a court, a real court with judges and jurors, to overturn the arbitrator’s decision. But the US Supreme Court, in the 2008 decision of Hall Street Associates, LLC v. Mattel, Inc., took away this grounds for appeal. You can no longer appeal an arbitrator’s decision to a Court — even when you can show that the arbitrator manifestly disregarded the law (in other words, completely ignored the law) in reaching his or her decision.
Of course, even if the “manifest disregard of the law” standard were still around, it would be an uphill climb to prove that your arbitrator disregarded the law because arbitrators very rarely write any written opinions explaining their decisions. If an arbitrator does not write an opinion explaining her decision, it is very hard to prove that the arbitrator made a legal error.
The widespread acceptance of tribunals that do not write down or explain their opinions represents a pretty radical break with the Anglo-American tradition of jurisprudence. America, like England (and a lot of former English colonies), has a “common law” system of justice. The common law tradition can be contrasted with the “civil code” system of justice that exists in continental Europe and virtually everyplace else.
In both traditions, a legislature, or some other authority, may promulgate a code of laws that people must follow. But legal codes usually speak in sweeping generalities; there are always ambiguities and questions of how to apply the codes in particular cases. This work of applying the verbiage of legal codes to the facts of particular disputes is the province of judges (and, well, arbitrators).
In the civil system, followed in continental Europe, judges make their decisions and those decisions apply in the case before them and for the case before them only. The judge’s decision has no weight of precedent; there is no requirement that the judge’s decision be followed in other cases. By way of contrast, in the common law tradition, judge’s decisions form precedents. These precedents must be followed in later cases.
The net result of the common law tradition is that America and other common law countries have a much richer body of law than countries who follow the civil code system. In the common law system, there is a lot more guidance out there on what is legal and what is not. There is also a lot more debate on what legal rules are good ones and what ones are bad.
The body of precedent that develops in a common law country helps people avoid litigation, by allowing them to know what they can do and what they cannot. The body of precedent in a common law country represents what economists call a “public good.”
But increasingly, due to the ubiquity of arbitration, we are moving toward becoming a civil code country. Congress will pass a law and relatively few of the cases will make it into the courts because of mandatory pre-dispute arbitration agreements. This was happening, for instance, with the Sarbanes-Oxley whistleblower law that Congress passed in the wake of the Enron collapse; many whistleblowers were getting pushed into arbitration under employment agreements that they signed, the same way that Jamie Leigh Jones was. This pattern stifles the doctrinal development of the law. Fortunately, last summer the Dodd-Frank financial reform law invalidated arbitration agreements that require the arbitration of whistleblower claims.
But arbitration remains ubiquitous in other areas – such as contract disputes with your phone company or bank. Walling these areas of life off from the courts means that the law will become ossified. A century from now, we’ll still be following the same law in that field of human life that we are today because the number of legal precedents issued by courts will either completely stop or slow to a trickle. That may not sound like much but go take a look at the contract law of the nineteenth century and decide whether you’d want that law followed today.
Arbitration also affects your pocketbook. It’s a virtual certainty that you have entered into a number of mandatory pre-dispute arbitration agreements. Your contracts with your cell phone company, your credit card company (although credit car companies are moving away from arbitration in some cases) and your mortgage lender likely contain arbitration clauses.
So if you discover that, say, AT&T is ripping you off by adding bogus extra charges to your bill, in complete violation of your contract, you can’t head into court to sue AT&T. You have to head to arbitration.
If the bogus charges that AT&T levies against you are part of a scam that rips off other AT&T cell customers, you might think, “No problem, I’ll head to arbitration and I’ll have my lawyer file a class action arbitration against AT&T. That will teach them. AT&T will have to end this fraudulent policy and refund us all the overcharges.”
If we were living in the halcyon days of 2010, such a tack might have worked. But, if you’re an AT&T customer, your contract with AT&T contains a clause that forbids you from bringing a class action in arbitration. And in April 2011, in the case of AT&T Mobility v. Concepcion, the US Supreme Court upheld the anti-class action provision in AT&T’s cell phone contracts.
So, now, if AT&T does something to rip you off on your cell phone bill, you have to go it alone in arbitration. But if AT&T only rips you off for $30 or so what lawyer is going to want to take your case? $30 won’t pay your lawyer. The only way a lawyer would take on your case is if she could aggregate all the $30 overcharges into a class action. That would mean real money that would make the issue worth fighting over and that would force AT&T to play by the rules.
Justice Breyer pointed out this obvious truth in his dissent in AT&T Mobility, where he wrote: “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
So mandatory pre-dispute arbitration means that your cell phone carrier can get away with completely fraudulent charges against you and you have absolutely zero remedy because, if the fraud is small enough, you won’t be able to attract a lawyer to take on your case.
Is it any surprise therefore that, according to this recent study by the Commerce Department, Americans are overcharged on their phone bills by $2 billion a year in “mystery fees”?
Mandatory pre-dispute arbitration. So far as consumers and employees are concerned, it’s still a bad idea.

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My Own Review Of “Poisoned: The True Story Of The Deadly E. Coli Outbreak That Changed The Way Americans Eat”

Poisoned II.jpgSo, following up on my blog post of a couple weeks ago, I finally got a chance to read “Poisoned: The True Story Of The E. Coli Outbreak That Changed The Way Americans Eat” by Jeff Benedict. “Poisoned” tells the story of Bill Marler’s lawsuits against Jack-in-the-Box for the 1993 E. Coli O157:H7 outbreaks at its restaurants.
I was excited to read the book because, based on the review that I read in The New York Times, I expected the story to be a real-life David v. Goliath legal thriller in the mold of Jonathan Harr’s “A Civil Action” (the book about the legendary Woburn, MA toxic tort case that was made into a motion picture starring John Travolta).
Sadly, “Poisoned” is not much of a legal thriller. Nor does it really touch upon much of the technology/science behind food safety and the way that Marler’s litigation changed food safety protocols. I was hoping the book would deliver on one of those fronts – either as a legal thriller or, as its subtitle suggests, a story about the technical side of food safety.

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When Doctors Follow Evidence-Based Guidelines Only 54 Percent Of The Time, You Get A Lot Of Unnecessary Surgeries

Flip-a-coin.jpgIn 2003, Dr. Elizabeth McGlynn and her coauthors published a blockbuster study in The New England Journal of Medicine showing that American doctors follow evidence-based guidelines only 54 percent of the time, meaning that when you receive medical treatment there’s a 50/50 chance that the treatment you’re receiving has no scientific validity to it.
The tendency within American medicine to recommend surgeries and other procedures that are not backed by evidence-based practices leads to a lot of unnecessary incisions and health care costs. Nearly two months ago, I blogged about how a large number of stent surgeries are performed in circumstances outside of those recommended by the guidelines.
Now comes new research, published in the Journal of the American Medical Association, showing that twelve percent of balloon angioplasties are performed on patients under circumstances where evidence-based guidelines do not recommend it. In some hospitals, as many as twenty percent of the balloon angioplasties that were performed were outside of the guidelines.

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