President Obama’s proposed overhaul of No Child Left Behind is long overdue. Over the past decade the regime’s rigid metrics and penalties transformed schools into testing factories. Unfortunately, the White House proposal—which replaces NCLB’s legal sticks with new legal carrots—won’t come close to fixing America’s schools.
The president has drawn the wrong lesson from the law’s failure. The fundamental defect of No Child Left Behind is that it elevated a sensible evaluation tool—standardized testing—into a legal requirement.
]]>Reviving the authority of individuals over daily choices is also my interest (see Life Without Lawyers: Restoring Responsibility in America), except that my emphasis is on overbearing law, not corporate monopolies and distant officials. My elevator speech might be something like this:
]]>Studies indicate that the largest drivers of waste, with rough percentages each contributing to unnecessary costs, are these: fee-for-service incentives for unnecessary care (50 percent)[4], the lack of consumer responsibility (40 percent)[5], defensive medicine (20 percent)[6], excess bureaucracy (20 percent)[7] and fraud (10 percent)[8].
]]>One source of waste—important but not the largest—is the defensiveness that pervades the practice of medicine. Universally, doctors don’t trust the system of justice. The distrust is more than justified—the error rate is about 25 percent and the horrible, demeaning, adversarial process (an average of five years to settlement) is itself enough to drive some physicians from practice (see pp. 84-87 of Atul Gawande’s excellent Better: A Surgeon’s Notes on Performance.
The proposed bills in Congress offer no serious proposals for malpractice reform:
]]>Last week’s headlines tell the story:
• President Obama appointed a deficit-reduction commission to recommend the hard choices that our elected representatives won’t make.
• A popular Democratic senator, Evan Bayh of Indiana, announced he will not stand for re-election, citing “too much partisanship and not enough progress.”
• Washington can’t even spend stimulus money—The Government Accounting Office reported that barely 10 percent of a $5 billion program to weatherize almost 600,000 homes had been spent because of red tape.
But what’s the source of this paralysis? It’s certainly true that there’s excess partisanship, and special interests have too much influence. Both parties are guilty, with Democrats selling out to the trial lawyers to prevent any malpractice reform and Republicans engaging in scare tactics about “death panels.” But I have a different take: The partisanship is mainly a symptom of a deeper powerlessness. Politicians posture and point fingers because they’ve learned it’s impossible to take responsibility.
]]>More troubling, however, was that the president’s speech revealed why common sense is nonexistent. Mr. Obama wants new laws to tell us how to do things better—when the need is to overhaul old laws to restore freedom of choice and individual responsibility. Up and down the chain of authority, the accumulation of law and entitlements precludes sensible decisions.
Mr. Obama ...
]]>The answer was $7,300 each. My children certainly can’t afford that. Nor can most American families. But that’s about the average cost per person today in America. For many, these costs will only rise with the current proposals, according to a new report by the actuary at the Department of Health and Human Services.
Universal health care coverage is supported as a moral imperative, but the current proposals undermine a more important moral imperative - to focus public resources by containing costs. That’s the only way America can afford universal care.
]]>Building a coherent new framework, however, is almost impossible in our political system. Devising a new healthcare system through hundreds of separate negotiations, with 535 members of Congress each trying to do the bidding of different constituents, is like constructing a building without any ability to make sure the walls and other elements fit together.
]]>I would add that the felt need to learn a lesson from individual madness often leads to institutionalized madness—as with the “zero tolerance” rules that sprouted up in schools after Columbine and result in suspensions of girls found with Midol, or a first grader with his Cub Scout camping utensil. Indeed, if there’s a lesson from these events, it’s that we need to be free to act on our judgment about people whom we think are unbalanced—a version of “if you see something, say something.” Sometimes the crazy person is allowed to remain notwithstanding numerous warnings because of the sense of disempowerment wrought by the rights revolution. Seung-Hui Cho, the student who murdered 32 people at Virginia Tech in 2007, had of long history of pathological conduct. But psychologists and others who had seen the dangers didn’t send warnings to the family or university officials because of his “right to privacy.”
]]>But this is the one reform Washington will not seriously consider. That’s because the trial lawyers, among the largest contributors to the Democratic Party, thrive on the unreliable justice system we have now.
Almost all the other groups with a stake in health reform—including patient safety experts, physicians, the AARP, the Chamber of Commerce, schools of public health—support pilot projects such as special health courts that would move beyond today’s hyper-adversarial malpractice lawsuit system to a court that would quickly and reliably distinguish between good and bad care. The support for some kind of reform reflects a growing awareness among these groups that managing health care sensibly, including containing costs, is almost impossible when doctors go through the day thinking about how to protect themselves from lawsuits.
]]>Creating special health courts is the proposal advanced by most serious observers to eliminate the incentives for defensive medicine—including by consumer groups such as AARP, patient safety groups, medical societies such as the AMA and the American College of Obstetricians and Gynecologists, and by such thought leaders as Bill Bradley, Mark McClellan, Newt Gingrich, and David Brooks. The public also overwhelmingly supports health courts—a poll released last week shows that 67 percent of the public favored the reform initiative. Nor is the idea of special courts some radical idea—our country has scores of special courts, precisely in areas where special expertise is needed to achieve consistent and expeditious justice—bankruptcy courts, tax courts, mental health courts, drug courts, workers’ compensation tribunals, Social Security tribunals, vaccine liability courts, family courts, you name it.
But special health courts are vigorously opposed by trial lawyers. “First you have a court for doctors, and then what? A court for plumbers?” said one representative. In fact, special health courts would probably be good business for trial lawyers—they could represent injured patients at a fraction the investment in expenses and time. But the fear of “setting a precedent” is leading them to support almost any proposal other than special health courts.
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