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In Fear of an Educated Population October 2, 2009

Posted by rscottgriffin in Uncategorized.
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Today on MSBNC’s Morning Joe, show regular Mort Zuckerman, who, according to Wikipedia, is the Editor in Chief for U.S. News and World Report and writes for the New York Daily News, and therefore wields a massive amount of influence over the message that a large number of people are presented, made one of the dumbest comments I’ve ever heard.  I think  his comment, by an incredibly successful and man and purported journalist, belies a serious problem of ignorance in this country and was horribly irresponsible.  I will give him the caveat that he was speaking rather “off the cuff” in the midst of a conversation and his comment may not have been as precise as he would’ve liked.  However, what he said was, “the trial lawyers won’t let them set up medical courts.”

Let’s break this down, shall we?  What, pray tell, is a ‘medical court’?  Which ‘them’ is being stopped from setting them up?  So, first, let’s discuss ‘medical courts’ in the context in which the discussion was occurring.  The current reform effort is Federal.  The Federal government and its powers are articulated in the Constitution of the United States.  Article III of the Constitution, in fact, establishes one court, and that is the Supreme Court of the United States and that Congress can establish inferior courts from time to time.  These courts, the Federal court system, only have jurisdiction over claims that arise under Federal law or cases that satisfy certain diversity requirements (litigants are from different States), but still are still cases that are adjudicated on the basis of the laws of the States.

The United States is a Federal system, hence the Federal government, where the Federal government only has the powers that are specifically dictated to it by…you guessed it…the Constitution.  ALL OTHER governing powers are left to the individual States, which, under the system as envisaged at ratification, were fundamentally states as sovereign as England or France or any other country, as we would understand it today.  From time to time, Congress has stretched the reach of Federal powers  beyond those powers specifically stated in the Constitution, and they use something called the Interstate Commerce Clause to do so.  Basically, if some aspect of business, society, etc…, stretches across state boundaries, Congress can assert control over it.  Medical malpractice, however, is not one of those issues.

Medical malpractice, the insurance industry (State Insurance Commissioners – try buying an insurance policy from a different state), doctors (State Medical Boards), and pretty much everything that occurs in the health care arena as we know it today, with the obvious exception of MediCare, is regulated by…the States.  Why?  Because medical malpractice is what we lawyers call a tort, just like when you hit someone with your car or generally do anything that damages that person.  Because, at its core, medical malpractice is a doctor doing something that injures a person more than it helps.  Now, yes, trial lawyers may do very well in “med mal” cases, but their regulation, the limits of recovery, and what can actually be sued for is solely in the purview of STATE law, not Federal.  Now if a doctor is in one state and the patient in another, you may be able to bring the case in a Federal court, but the law governing the case is…state law.  There is NO SUCH THING as Federal malpractice.

States, like the Federal government, can establish whichever courts their respective Constitutions say they can, and they have significantly more power and a broader range of authority than Federal courts.  Herein lies the problem.  Federal health care reform is attempting to set up a national-level system that will allow more competition, options, and access to coverage than are currently available with traditional insurance, which is regulated…by the States (note that every few years states also elect an insurance commissioner, and all responsibilities of insurance companies that operate within a state are stipulated by State law, and that’s why, living in Georgia, I can’t buy insurance from a company in Arizona).

So, what does all this really mean?  It means that Mr. Zuckerman, in his position of influence and dramatic wealth, knows this…and knows BETTER, and is simply engaging in that typical race to the bottom and for the minds of the “Lowest Common Denominator.”  Now, I’m not writing this as an “intellectual elitist” that thinks I know more than others or is better than others.  But, instead of sticking to a party line that embraces this “faux-populism” that has been a trademark of the conservative right for the past 12 years, why not try to EDUCATE those that may not understand or appreciate the nuance?  Because it’s hard…and it’s the difficult thing to do.  It’s also the right (as in correct) thing to do.  Nuance and explanation do not fit into neat sound bytes or quick quips or “Death Panels” or “they’re taking away your MediCare.”  It also has the convenience of leaving in place the status quo insurance system, which lines the pockets of the super-rich.  (I do not claim that there are not some Democrats and progressives that are equally guilty, but a majority of the perpetrators are conservative, and an (R) follows their names if they are elected representatives.)  For them, it’s not about helping people – it’s not about the moral obligation that we should all have as the wealthiest country in the world that people don’t die because they get sick or that education enriches the debate when everyone is operating with the same information.  To them, it’s about winning, more money for them and their friends, and making sure that as much stays the same as possible.  It’s time for a new level and a new type of discourse that involves all of us, and not a precious few railing against new ideas when they know for a fact that the ones they’re appealing to are the ones that they are trying to keep down and in the dark.

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