The DJP Update

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DJP Update 10-14-2010 Breaking news! Federal Judge allows individual mandate case to proceed; WSJ Op-Ed re reforming PPACA

Oct 14

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 10-14-2010 Breaking news! Federal Judge allows individual mandate case to proceed; WSJ Op-Ed re reforming PPACA

DJP Comment: Two exciting developments today. Federal Court decision about individual mandate: Judge ruled to let the case continue! The second is an excellent Op-Ed about reforming PPACA via the exchanges. Read the entire opinion and the complete Op-Ed.

DJP

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

STATE OF FLORIDA, by and through

Bill McCollum, et al.;

Plaintiffs,

v. Case No.: 3:10-cv-91-RV/EMT

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants.

____________________________________/

Complete opinion at: http://healthcarelawsuits.org/pdf/FloridavDHHSRuling.pdf

EXCERPT from pages 63-64 of October 14, 2010 decision

ROGER VINSON

Senior United States District Judge

Case No.: 3:10-cv-91-RV/EMT

There are several obvious ways in which Heart of Atlanta and Wickard differ markedly from this case, but I will only focus on perhaps the most significant one: the motel owner and the farmer were each involved in an activity (regardless of whether it could readily be deemed interstate commerce) and each had a choice to discontinue that activity. The plaintiff in the former was not required to be in the motel business, and the plaintiff in the latter did not have to grow wheat (and if he did decide to grow the wheat, he could have opted to stay within his allotment and use other grains to feed his livestock — which would have been most logical, since wheat is usually more expensive and not an economical animal feed — and perhaps buy flour for him and his family). Their respective obligations under the laws being challenged were tethered to a voluntary undertaking. Those cases, in other words, involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaging in interstate commerce and subject to federal authority.

But, in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. As the nonpartisan CBO concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” See Congressional Budget Office Memorandum, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance, August 1994 (emphasis added). Of course, to say that something is “novel” and “unprecedented” does not necessarily mean that it is “unconstitutional” and “improper.” There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.

—–

See end of case opinion:

Accordingly, the defendants’ motion to dismiss (doc. 55) is GRANTED with respect to Counts Two, Five, and Six, and those counts are hereby DISMISSED.

The motion is DENIED with respect to Counts One and Four. Count Three is also DISMISSED, as moot. The case will continue as to Counts One and Four pursuant to the scheduling order previously entered.

DONE and ORDERED this 14th day of October, 2010.

—–

Thus the following will continue in court:

(Count I)

Challenge to individual mandate as exceeding Commerce Clause (Count I)

(See page 60 for start of discussion)

(Count IV)

Coercion and commandeering as to Medicaid (Count IV)

(see page 50 of opinion for start of discussion)

——-

ITEM TWO OF DJP UPDATE: A must read article in WSJ: “How to Reform ObamaCare Starting Now” by Scott Gottlieb and Tom Miller

READ entire article at: http://online.wsj.com/article/SB10001424052748704116004575521770685906984.html

It also will be posted at: http://www.aei.org/article/102656

The approach of these two authors is more in tune with long-standing AMA policy of choice and competition etc.!

EXCERPTS:

The Republican rallying cry during this election season has been a promise to “repeal and replace” ObamaCare. The problem is that through at least 2012 President Obama would veto any law repealing his signature health-care legislation. What, then, can Republicans do in the next two years? Look to the states.

—-

The more promising option is for governors to perform as much radical surgery as possible on the exchanges until a new Congress working with a different president can do something better. By offering their own market-friendly versions of exchanges, they will establish an alternative to ObamaCare and its one-size-fits-all health plans.

——

ObamaCare intends health-care exchanges to be a regulatory dragnet to trap insurers into offering a single government-prescribed set of health benefits. State-designed exchanges could, and should, do the opposite.

Any willing insurers already licensed to operate in a state should be able to offer plans. Their operating rules would focus on providing better information to consumers, rather than limiting the types of plans available. Exchanges should also enable easier allocation of private payments and public subsidies, simplify enrollment, and reduce transaction costs.

Once inside the exchange, consumers would be guaranteed the ability to renew their coverage without regard to changes in their health status, so long as they remain continuously insured. If individuals want to switch plans, they couldn’t be hit with higher costs due to changes in health status as long as they stay within some baseline range of benefits that was largely equivalent to their previous plan. And a new Congress should make sure that consumers shopping in these market-based exchanges get the same tax advantages that employers do, eliminating the bias that now forces people to get coverage from their bosses.

Under this arrangement, there wouldn’t be the incentive for gaming the system that exists under ObamaCare, which encourages forgoing coverage until one gets sick, or buying cheap policies and upgrading only after an illness strikes.

Of course, not everyone will be able to afford to purchase insurance in these exchanges. Poor people and those with major medical problems or chronic conditions that make them largely uninsurable would certainly need to be subsidized. But today we already subsidize many of these people through a patchwork of programs.

Taxpayers can provide targeted subsidies through expanded high-risk pools to cap out-of-pocket, risk-based premium costs for the most vulnerable. In the longer term, states could get waivers to “monetize” Medicaid medical benefits and allow these recipients to shop in the same exchanges. Recipients might well prefer a voucher option to Medicaid coverage that pays most providers half as much as private insurance and fails to deliver many of the benefits it promises. Subsidies should flow directly to consumers, rather than to the health plans as ObamaCare required.

ETC.

And check out the cartoon!

———-

Stay well,

Donald

Also, recent selected DJP Updates can be found at: http://donaldpalmisano.com/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

This DJP Update goes to 2309 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

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http://www.nydailynews.com/opinions/2010/10/10/2010-10-10_drowning_in_law_a_flood_of_statutes_rules_and_regulations_is_killing_the_america.html

DJP Update 10-12-2010 Philip Howard Op-Ed and his comments on PPACA and lawsuit abuse

Oct 12

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 10-12-2010 Philip Howard Op-Ed and his comments on PPACA and lawsuit abuse

On the road again. In Los Angeles to give a presentation this afternoon. A quick update now.

Here is attorney Philip Howard in the Sunday edition of the New York Daily News. See link and article below. As you know, Philip Howard is a New York attorney, best-selling author, and Chair of Common Good. See Website at: http://commongood.org/

He also had a letter in the NYT

(http://www.nytimes.com/2010/10/09/opinion/lweb09friedman.html?_r=2&src=tptw).

DJP COMMENT: Note this excerpt from the article in New York Daily News:

“Doctors are conditioned by our lawsuit culture to see patients as potential plaintiffs and practice medicine wearing blinders of reimbursement bureaucracy. Every incentive is upside down – driving up health care costs to almost double that of other developed countries. The new healthcare bill does almost nothing to fix this, and instead stacks 2,700 pages of new requirements on top of the giant heap of old law.”

New York Daily News article follows:

Drowning in Law: A flood of statutes, rules and regulations is killing the American spirit

BY Philip K. Howard

Sunday, October 10, 2010

Government is broken and the economy is gasping. The reason is the same: Americans no longer feel free to roll up their sleeves and make the choices needed to fix things. Governors come to office and find that 90% of the budget is pre-committed to entitlements and mandates enacted by politicians long dead. Teachers no longer have authority to maintain order in the classroom.

Legal mandates and entitlements have accumulated, like sediment in the harbor, until it is almost impossible for Americans to get anywhere without trudging through a treacherous legal swamp. Only big businesses, not small entrepreneurs, have the size (and legal staffs) to power through the legal sludge.

America will thrive only so long as Americans wake up in the morning believing they can succeed by their own efforts. Innovation, not cheap labor, is the economic engine of America. The net increase in jobs since 1980, according to research at the Kauffman Foundation, is attributed solely to newly-started businesses.

Unleashing these powerful human forces requires, however, an open field for individual opportunity – bounded by reliable legal structures that enforce contracts and other important social norms.

Instead, the land of opportunity is more like legal quicksand. Small business owners face legal challenges at every step. Municipalities requires multiple and often nonsensical forms to do business. Labor laws expose them to legal threats by any disgruntled employee. Mandates to provide costly employment benefits impose high hurdles to hiring new employees. Well-meaning but impossibly complex laws impose requirements to prevent consumer fraud, provide disability access, prevent hiring illegal immigrants, display warnings and notices and prevent scores of other potential evils. The tax code is incomprehensible.

All of this requires legal and other overhead – costing 50% more per employee for small businesses than big businesses.

The sheer volume of law suffocates innovative instincts, while distrust of lawsuits discourages ordinary human choices. Why take a chance on the eager young person applying for a job when, if it doesn’t work out, you might get sued for discrimination? Why take the risk of expanding production in another state when that requires duplicating legal risks and overhead? Why bother to start a business at all?

Over the generations, the American spirit of individual opportunity has been manifested not only in new businesses, but in the civic and public life as well – in the culture of barn-raisings and boy scouts and cake sales. These deep roots of our common culture – which Tocqueville referred to as “self-interest, rightly understood” – have also atrophied before our eyes. Hardly any social interaction is free of legal risk.

Doctors are conditioned by our lawsuit culture to see patients as potential plaintiffs and practice medicine wearing blinders of reimbursement bureaucracy. Every incentive is upside down – driving up health care costs to almost double that of other developed countries. The new healthcare bill does almost nothing to fix this, and instead stacks 2,700 pages of new requirements on top of the giant heap of old law.

Schools are bureaucratic viper pits. Mandates from Washington, from state capitals and from aggressive local districts transform teachers into pedagogical drones. Because of fear of lawsuits, they’re told never to put an arm around a crying child. Good teachers quit, surveys show, because they don’t feel free to do what’s right, or indeed, even to be themselves.

Government itself is choking on accumulated law. The simplest choices take years to grind through labyrinthian requirements mandated by obsolete laws. Good public management takes superman, because accountability is nonexistent. Firing an insubordinate civil servant is even harder than firing a teacher.

Forget about building public works – that occurs on a tectonic time frame, with shovels in the ground maybe a decade or longer after the decision is made. Wind farms off the Massachusetts coast were approved this year after a decade of review by 16 different agencies – and then challenged again the next day by a dozen lawsuits.

Clearing away the poisonous legal overgrowth does not require genius. It just requires different choices. Balancing budgets demands we pare back legal mandates, entitlements and subsidies. Containing healthcare costs requires realigning incentives so that patients and doctors have a financial responsibility to be prudent. But those choices are impossible in the current legal jungle.

“Good ideas to reform government,” New York City Deputy Mayor Stephen Goldsmith recently remarked, “are often illegal.”

America can’t move forward until it cleans out this legal swamp. The accretion of law has made democracy inert – a sludge heap of programs and entitlements swarming with special interests – while also slowly suffocating the American spirit.

Changing leaders or parties will not solve this problem. Decades of accumulated law and bureaucracy have made it impossible for anyone to use common sense. A new President can ride into Washington on the mighty steed of public opinion – Yes We Can! – but will immediately get stuck in the bureaucratic goo.

What’s required to revive America is major structural overhaul. This is a task of historic proportions – not unlike the simplification of law by Justinian in ancient Rome. Our founding fathers never imagined that democracy would become a one-way ratchet – always adding laws but never repealing them. Nor did they intend law to be a form of central planning. The Constitution sets forth our governing goals and principles in only 16 pages.

The core principle of this overhaul should be this: Restore free choice at every level of responsibility.

For example, let all public schools operate with the same freedoms, and accountability, as charter schools. Give officials the responsibility to balance different interests – not be forced by legal threats to give away scarce common resources to whoever threatens a lawsuit. Make public employees accountable for failure – but at the same time, stop telling them how to do their jobs.

A great streamlining would re-invigorate democracy. Cleaning out old mandates and entitlements would allow political leaders to make choices to meet today’s needs. Radically simplifying law would allow people, including members of Congress, to actually understand it.

The goal is not to build a libertarian utopia. A crowded society requires regulatory red lights and green lights. The goal is to pull law back so it provides a framework for free choice, not a software program that tries to dictate daily choices.

The fatal flaw of the modern state is that it doesn’t honor the human element of all accomplishment. Rules don’t make things happen. Only people do, making fresh choices in response to the infinite complexities of daily challenges.

“We are not far from the point,” Nobel economist Friedrich Hayek warned in 1960, “where the deliberately organized forces of society may destroy those spontaneous forces which have made advance possible.” We may finally be there. Government is basically bankrupt, and the accretion of law is suffocating individual initiative. Nothing will work until we clean it out.

Howard, a lawyer, is chair of Common Good (www.commongood.org) and author, most recently, of “Life Without Lawyers: Restoring Responsibility in America.”

—-

Stay well,

Donald

Also, recent selected DJP Updates can be found at: http://donaldpalmisano.com/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

This DJP Update goes to 2309 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

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http://journal.lsms.org/component/content/article/42-rokstories/92-the-2010-qpatient-protection-and-affordable-care-actq-a-failing-grade

DJP Update 10-9-2010 Palmisano editorial re PPACA in Journal of Louisiana State Medical Society Sept-Oct 2010 issue

Oct 09

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 10-9-2010 Palmisano editorial re PPACA in Journal of Louisiana State Medical Society Sept-Oct 2010 issue

The 2010 “Patient Protection and Affordable Care Act”: A Failing Grade

Donald J. Palmisano, MD, JD, FACS

EXCERPTS (the beginning, mid-portion & end of article):

Danger invites rescue. The cry of distress is the summons to relief. Those words by Justice Cardozo in an opinion in 1921 certainly apply to the health law recently passed in Congress. It will be a disaster. It will not save money. It will put more bureaucrats between the doctor and the patient and it will reduce access to care. Certainly quality is not improved if one can’t find a doctor in the hour of need.

——-

When Speaker Nancy Pelosi made her widely quoted statement (on her website at http://www.speaker.gov/newsroom/pressreleases?id=1576 ),

“But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy,” that was an understatement. Only now are the burdensome flaws and extra administrative costs coming to light, and we don’t even have all of the regulations! Imagine doctors tied up with thousands of strands of regulations, unfathomable & contradictory. Imagine Gulliver tied down by the Lilliputians! Swift relates how Gulliver tried to break the stands that bound him to the ground, “But the harder he fought for freedom, the more the little men shot arrows into him, and some of them even tried to run their spears into his sides.” We must not let this happen to medicine!

——-

Patients and physicians are not stupid. Give both parties the information, opportunity, and freedom and you will see the problems in access disappear. That is why the Kindle e-reader dropped significantly in price when the Barnes & Noble Nook and the Apple iPad came out. Free enterprise trumps government micromanagement every time!

Physicians and patients need to open the gates of the prison that government put them in. Just as the continued SGR payment formula is a mistake, the new health system reform law is a disaster that will not lower prices. Americans need to say NO to current actions and, if necessary, replace those in Congress. We need more individuals akin to “Mr. Smith Goes to Washington.” My first testimony to Congress on this topic of health system reform was in 1976 and obviously eternal vigilance and action continue to be needed. It is time for all of us to get involved. Ethical science-based medicine hangs in the balance.

——-

——-

DJP Comment: Hope you can share article with candidates!

——-

Links to article in tweet below.

The longer links to LSMS Website links are:

and

http://journal.lsms.org/images/stories/Editorial.pdf

Tweet follows:

www.twitter.com/DJPNEWS

DJPNEWS Donald Palmisano

Editorial #LSMS by @DJPNEWS – #PPACA : A Failing Grade http://tinyurl.com/38ubqt6 PDF at: http://tinyurl.com/32rw2on #hcr #tcot

————-

The PDF of the editorial attached in mailing to DJP Update list.

DJP

——-

Stay well,

Donald

Also, recent selected DJP Updates can be found at: http://donaldpalmisano.com/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

This DJP Update goes to 2309 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

Comments Off

http://www.nurembergfilm.org/.

DJP Update 9-30-2010 (2nd of today) Special alert “Nuremberg”: Fwd: Jackson List: Belatedly, in U.S. Theaters, “Nuremberg”

Sep 30

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 9-30-2010 (2nd of today) Special alert “Nuremberg”: Fwd: Jackson List: Belatedly, in U.S. Theaters, “Nuremberg”

DJP Comment: The letter below speaks for itself. I had the privilege to meet Professor John Q. Barrett in August of 2009 at a meeting of the Robert H. Jackson Center in New York when I gave a presentation on informed consent evolution following the Nuremberg Doctors’ Trial. More info and some of my comments about the earlier speech I gave can be found at this link:

But the important message of this update is from Professor Barrett. Read below and check out video links.

Begin forwarded message:

From: barrettj@stjohns.edu

Subject: Jackson List: Belatedly, in U.S. Theaters, “Nuremberg”

Date: September 30, 2010 4:29:05 PM CDT

To: barrettj@stjohns.edu

For the Jackson List:

I am pleased to announce that the Schulberg/Waletzky restoration of “Nuremberg” has premiered, somewhat belatedly, in United States theaters.

“Nuremberg” is a powerful documentary account of the Allied nations’ prosecutions before the International Military Tribunal (IMT) of the principal Nazi war criminals and their organizations. The U.S. chief prosecutor before the IMT was, of course, Justice Robert H. Jackson. Sixty-four years ago today and tomorrow, the IMT returned its judgments in the cases. “Nuremberg” shows how Jackson and his fellow prosecutors built the cases using captured Nazi films and records.

* * *

Somewhat belatedly? The United States War Department, acting at the request of the Allied Military Council that supervised the occupation of the former Germany, agreed to make this film at the time of the IMT trial. The producer, Pare Lorentz, director and scriptwriter Stuart Schulberg and their team largely completed their work, with input from Jackson and others, in 1947. The film then was shown widely in the Allied occupation zones (Germany) as part of the Allies’ education and denazification program.

But to the frustration of Lorentz, Schulberg, Jackson and others, U.S. officials in the late 1940s deemed the film too provocative for Americans. Some decision maker seems to have concluded that the film was too, well, allied with the Soviet Union, as the U.S. of course had been both in World War II and then at the Nuremberg trial, and also too anti-German, to be shown in U.S. theaters at a time when U.S. foreign policy had turned in Cold War directions. In subsequent years, the picture negative and sound elements of “Nuremberg” were lost or destroyed.

“Nuremberg” exists today in restored form because Sandra Schulberg (Stuart’s daughter) and Josh Waletzky used original trial recordings of defendants’ and prosecutors’ voices. The final voice in the film is Justice Jackson’s: “Let Nuremberg stand as a warning to all who plan and wage aggressive war.” “Nuremberg” is powerful, accurate, historical, contemporary and, as it always was meant to be, universally educational.

* * *

The film “Nuremberg” has traveled a long path. In early 1947, Pare Lorentz sent Stuart Schulberg’s 51-page draft script to Justice Jackson. He read it closely and wrote back promptly: “I have examined the scenario for the Nuremberg trials motion picture and must confess to you that it overcomes the doubts which I earlier entertained as to whether such a film would be advisable.” Jackson then offered some “minor criticisms”—factual corrections that in his view did not “go to the heart of the [film] plan.” And he closed his letter with a commitment: “I shall want to be of any help possible in this effort which I think is a very worthwhile one.”

To their great credit, Schulberg and Waletsky are successors, and they have succeeded, in that effort.

* * *

For much more information on the film, its history and its restoration, and to view the trailer, click here:

For information about seeing the film this week in New York City, click here:

http://www.filmforum.org/.

For information about seeing the film at the National Archives in Washington on October 6^th, click here:

http://www.archives.gov/dc-metro/events/october.html.

For A.O. Scott’s review of “Nuremberg” in yesterday’s New York Times, click here:

http://www.nytimes.com/2010/09/29/movies/29nuremberg.html?_r=1&scp=1&sq=Nuremberg&st=cse.

* * *

Thanks for your interest, and please forward this note to others who might be interested too.

Sincerely,

John

Professor John Q. Barrett

St. John’s University School of Law

Homepage

Elizabeth S. Lenna Fellow

Robert H. Jackson Center, Inc., Jamestown, NY

Archive of selected Jackson List posts

Administrative details: I send Jackson List notes, which do not display recipient identities or email addresses, to readers who are interested in Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. To read archived copies of some past Jackson List posts, click here. If you received this note indirectly and wish to join the Jackson List, send a “subscribe” note to barrettj@stjohns.edu. If you wish to leave the Jackson List, just send an “unsubscribe” note.

——–

Stay well,

Donald

Also, recent selected DJP Updates can be found at: http://donaldpalmisano.com/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

This DJP Update goes to 2309 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

Comments Off

DJP Update 9-30-2010 WSJ Lead Editorial 9-30-2010 re: The Repeal Pledge and the Independent Women’s Forum; Lagniappe

Sep 30

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 9-30-2010 WSJ Lead Editorial 9-30-2010 re: The Repeal Pledge and the Independent Women’s Forum; Lagniappe

DJP Comment: The November elections will be an exciting time for America. Try to get some rest that day and stay up late for the final returns. Americans are getting more and more frustrated with the happenings in Washington, DC. And that frustration is felt by citizens of all political parties. The apathy of many voters in the past is turning to activism.

Here is one example of citizens offering an alternative to grousing around the coffee pot. This is a good way to give politicians their moment of truth: Action, not words of platitude.

—–

The Wall Street Journal, September 30, 2010

The Repeal Pledge

Holding politicians to their promise to replace ObamaCare.

http://online.wsj.com/article/SB10001424052748704116004575522381254724778.html

Republicans are promising to “repeal and replace” ObamaCare, and more than a few Democrats seem to be running on—or at least from—the same issue. And it’s a good campaign platform given the rising unpopularity and toxic side effects of one of the worst pieces of legislation Congress has ever passed.

But with a few notable exceptions, the wider GOP doesn’t seem to comprehend how difficult it will be to pursue this agenda in practice, even if the party does return to the majority in the House and Senate. Which is why we want to underscore a new campaign to ensure that “repeal and replace” is something more than a political slogan.

The “repeal pledge” is a project modeled after the famous taxpayer-protection pledge of Americans for Tax Reform, under which incumbents and candidates make a public promise to vote against tax increases. The tax pledge debuted in 1986 with the endorsement of Ronald Reagan and has helped to steel opposition to antigrowth policies. The repeal pledge aims to do the same for ObamaCare.

Efforts like these can be gimmicks, though when well done they educate the public and encourage politicians to commit to specific policy goals while drawing bright-line contrasts with their opponents. Pledges also help define electoral mandates. The 2010 campaign is already a referendum on the Obama Presidency, but if the repeal pledge gains currency it would allow voters to remonstrate this bill in particular and add momentum to the “repeal and replace” movement.

Launched a week ago by the nonprofit outfits Independent Women’s Voice and American Majority Action, the repeal pledge has been signed so far by 43 Republicans. Its sponsors are about to name a board of outside policy experts to evaluate all votes and let the public track how Members shake out on health care. The pledge applies beyond repeal per se to interim steps like discharge petitions to allow certain up-or-down votes in Congress on partial repeal, stripping funding from some ObamaCare subsidy or enforcement programs, and repealing certain regulations.

Dismembering ObamaCare limb by limb is probably the best, and perhaps the only, political strategy for at least the next two years. Meanwhile, many Republicans may figure that the path of least political resistance will be to hold a symbolic vote on repeal and claim victory, even if it is filibustered in the Senate or vetoed by President Obama. Republicans are also notoriously fractious on health policy and will need outside pressure if they ever do get around to the “replace” part.

The hard political slog ahead could use an accountability tool like the repeal pledge. Realistically, the health-care bill won’t be unwound as long as Mr. Obama is in office, so the Republican goal should be to do some modest good in the meantime and keep the issue a running controversy through 2012 and beyond. Democrats are determined to defend every part of ObamaCare no matter how destructive—witness their recent safe-harbor for the 1099 business reporting mandate—and they’re banking on Republican inertia.

Republicans should recognize the opportunity they’ve been handed. According to this week’s Wall Street Journal-NBC News poll, 40% of the public strongly supports repeal, and another 11% is generally in favor. CNN also found this week that 47% believes “Congress should repeal most of the major provisions in that bill and replace them with a completely different set of proposals,” a view that has held steady since Democrats passed the bill in March.

The larger GOP opportunity is to pursue genuine health-care reform now that the public has so decisively rejected the entitlement model that Democrats have favored for several political generations. That begins with unraveling ObamaCare, and we hope the repeal pledge will help the cause.

—-

Here is the link to The Repeal Pledge http://www.TheRepealPledge.com/

and the incumbent version of the pledge is at: http://www.TheRepealPledge.com/the-repeal-pledge-incumbent-version/

Here is one of the advocates of this pledge: the Independent Women’s Forum (IWF). The Website is: http://www.iwf.org/

——

Lagniappe: Gave a speech today with President of Louisiana State Medical Society, Dr. Pat Breaux, to the first and second year students at LSU Medical School. Lots of fun.

Some recent tweets at www.twitter.com/DJPNEWS

DJPNEWS

Politicians: moment of truth; See #TheRepealPledge http://tinyurl.com/37phs7a & #WSJ editorial http://tinyurl.com/256qllg #hcr 2 minutes ago via web

Interesting analysis RT @nprpolitics #Republicans Improve Chances For Senate Control http://n.pr/bbBv8o #politics#tcot #dems8:18 PM Sep 28th via Echofon
+ sales if ext HD via USB RT @macTweeter Analyst: Apple Planning Thinner iPad with Camera, Mini USBhttp://bit.ly/a8XzG9 #apple #iPad 10:15 AM Sep 28th via Echofon
What! RT @macTweeter Senior Advisor Plays Pac Man on his iPad during White House Meetings http://bit.ly/bSTTv6 #politics #tcot 9:35 PM Sep 27th via Echofon

Stay well,

Donald

Also, recent selected DJP Updates can be found at: http://donaldpalmisano.com/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

This DJP Update goes to 2309 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

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http://www.nytimes.com/2010/09/24/opinion/24brooks.html?_r=1

DJP Update 9-27-2010 Congratulations to Philip Howard again; his latest writings bring dissent from trial lawyers

Sep 27

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 9-27-2010 Congratulations to Philip Howard again; his latest writings bring dissent from trial lawyers

DJP Comment: I will include Dave Brooks article praising Philip Howard plus Philip Howard’s article in The Daily Beast and then the tweet and link from trial lawyers giving their criticism of Philip Howard and the Brooks article.

Also, you can read more about Philip Howard and Common Good at: http://commongood.org/

Philip Howard of Common Good writes that “David Brooks devotes his New York Times column today to the need to restore responsibility in America, highlighting our ideas and calling it ‘the crucial theme of the moment.'”

The New York Times

September 23, 2010

The Responsibility Deficit

By DAVID BROOKS

One of the oddities of the current moment is that the country wants a radical change in government but not a radical change in policy.

On the one hand, voters are completely disgusted with Washington. On the other hand, they have not changed their fundamental views on the issues. There has been some shift to the right over the past two years, but the policy landscape looks mostly the way it did over the last few decades. We’re still a closely divided nation; it’s just that we’re angrier about it.

The result is that over the next two years we’ll probably see gridlock on stilts. The energized Republicans will try to reduce the size of government, but they won’t be able to get their bills past President Obama. The surviving Democrats will try to expand government programs, but they will run smack into a closely divided Senate and possibly a Republican-controlled House.

Unable to do anything in the short term, both parties will devote their energies to nothing but campaign gestures for 2012. The rhetoric will fly. Childishness will mount. Public nausea will hit an all-time high.

Somewhere in the country, though, there is a politician who is going to try to lead us out of this logjam. Whoever that person is, I hope he or she is listening carefully to what the public is saying. Because when you listen carefully, you notice the public anger doesn’t quite match the political class anger. The political class is angry about ideological things: bloated government or the predatory rich. The public seems to be angry about values.

The heart of any moral system is the connection between action and consequences. Today’s public anger rises from the belief that this connection has been severed in one realm after another.

Financiers send the world into recession and don’t seem to suffer. Neighbors take on huge mortgages and then just walk away when they go underwater. Washington politicians avoid living within their means. Federal agencies fail and get rewarded with more responsibilities.

What the country is really looking for is a restoration of responsibility. If some smart leader is going to help us get out of ideological gridlock, that leader will reframe politics around this end.

Philip K. Howard has thought hard about the decay of responsibility and what can be done to reverse it. In a series of books ranging from “The Death of Common Sense” to “Life Without Lawyers,” Howard has detailed the ways our political and legal systems undermine personal responsibility.

Over the past several decades, he argues, a thicket of spending obligations, rules and regulations has arisen, which limits individual discretion, narrows room for maneuver and makes it harder to assign responsibility.

Presidents find that more and more of their budgets are precommitted to entitlement spending. Cabinet secretaries find that their agenda can’t really be enacted because 100 million words of existing federal rules and statutes prevent innovation this way and that. Even when a new law is passed, it’s very hard to tell who is responsible for executing it because there is a profusion of agencies and bureaucratic levels all with some share of the pie.

These things weaken individual initiative, discretion and responsibility. But the decay expands well beyond Washington. Teachers don’t really control their classrooms. They have to obey a steady stream of mandates that govern everything from how they treat an unruly child to the way they teach. Doctors don’t really control their practices but must be wary of a capricious malpractice system that could strike at any moment. Local government officials don’t really govern their towns. Their room for maneuver is sharply constrained by federal mandates and by the steady stream of lawsuits that push them in ways defying common sense.

What’s needed, Howard argues, is a great streamlining. He’s not calling for deregulation. It’s about giving teachers, doctors and officials the power to actually make decisions and then holding them accountable. Some of their choices will be wrong, Howard acknowledges, but it is better to live in an imperfect world of individual responsibility than it is to live within a dehumanizing legal thicket that seeks to eliminate risk through a tangle of micromanaging statutes.

Howard proposes expanding specialized health courts, which would be more predictable than the malpractice system. He would lift controls on teachers and civil servants — giving them more freedom but then ending tenure and holding them accountable. He would create commissions to eliminate obsolete laws. He would expand judges’ discretion and end mandatory sentencing.

Howard’s agenda raises some thorny issues. But he has seized the crucial theme of the moment. If bad government undermines responsibility then it should be restructured. And he’s offering one tool a creative politician could use to break through the logjam and help us avoid a truly awful few years.

http://www.nytimes.com/2010/09/24/opinion/24brooks.html?_r=1

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DJP Comment: Trial lawyers, with new name of American Association for Justice (formerly known as the Association of Trial Layers of America (ATLA trademark), did the tweet below under the Twitter name of JusticeDotOrg

www.twitter.com/JusticeDotOrg

The tweet:

David Brooks NYT op-ed: Philip Howard is the answer to restoring responsibility. Except he’s the exact opposite of that. http://ow.ly/2JwLK

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DJP comment: another attack on the person rather than dealing with the issues. Also, when will America deal with the contingency fee that results in so many suits without merit?

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Here is more from Philip Howard in The Daily Beast. Philip Howard gives his five proposals for reviving America and our can-do spirit.

http://www.thedailybeast.com/blogs-and-stories/2010-09-26/philip-k-howard-manifesto-for-a-new-politics

The Daily Beast

September 26, 2010 | 10:56pm

Manifesto for a New Politics

by Philip K. Howard

Hailed by David Brooks for seizing “the crucial theme of the moment,” lawyer and author Philip K. Howard proposes five ways to liberate America, streamline government, and revive our can-do spirit.

Government is broken. It spends money we don’t have, takes no responsibility for the future, and suffocates daily freedoms under a thickening blanket of unnecessary bureaucracy and litigation.

Both the Democratic and Republican parties are to blame. Instead of appealing to our better nature, they promise short-term self-interest of continued entitlements or lower taxes. Instead of leadership for a responsible society, they attack each other with partisan half-truths, oblivious to the critical need to change course.

Changing leaders is not enough. Decades of accumulated law and bureaucracy have made it impossible for anyone to use common sense. New leaders come to Washington and immediately get stuck in the bureaucratic goo.

Government needs to be cleaned out. Government has a vital role in a crowded society, as a steward of common resources and public services. But it cannot deal effectively with the important challenges of today—whether to contain runaway entitlements or to create clean energy—when resources are committed to goals of past decades. Accumulated law has become a fortress for the status quo. Unnecessary law and bureaucracy also act as a heavy weight on society, making it hard for teachers, doctors, and other citizens to pursue their dreams. Many Americans no longer feel they can make a difference.

Government will never fix itself. Washington and state capitals have become disconnected from the public they serve, focused on partisan tug-of-wars instead of on the vital needs of society.

Change can only come from outside pressure. Americans must come together to demand a new approach to governing.

The core principle for change is this: individual responsibility. At every level of society, individuals must be free to take responsibility. This requires streamlining government and law to allow people to use their judgment to meet public goals. Individual responsibility is the key to all accomplishment. It is also the key to accountability. Who is responsible for the failures in government? No one, because government has become a bureaucratic swamp. Where are new leaders? Leadership is basically illegal in a legal thicket.

Five changes are essential to create a responsive government and to revive America’s can-do spirit:

1. Clean out the stables of government. Democracy is not supposed to be a one-way valve, always piling new law on top of old laws. In each area of government, appoint respected citizens and experts to make proposals to clean out unnecessary entitlements, mandates, and regulations. Going forward, laws and regulations should expire periodically under sunset laws. Government must make choices for the future, not stay mired in choices of the past.

2. Radically simplify law. Laws must be understandable to be effective. Write laws to set public goals and general principles. Leave implementation to designated officials, with clear lines of accountability. The Constitution is 16 pages long. No statute should be over 50 pages.

3. Push responsibility down to local organizations. Give back to Americans the freedom to make a difference—without unnecessary interference of centralized bureaucracy, especially in schools and other social services. Let public schools operate with the same freedoms as charter schools. Hold people accountable for results, not bureaucratic compliance.

4. Restore boundaries to lawsuits. Fear of lawsuits has poisoned human interaction in most areas of society, especially health care and schools. Law should set outer boundaries of required conduct, not interfere in everyday disagreements. This requires judges and legislatures to define reasonable social norms as a matter of law. Create special health courts to provide a foundation of reliability and trust, essential to making health care safe and affordable.

5. Revive accountability for public employees. Individual accountability is a critical component of a functioning democracy. Overhaul civil service and teacher tenure: Public servants should have more freedom to take responsibility, and they must be accountable for their choices. Make government transparent; sunlight is the best disinfectant.

There’s nothing wrong with America that can’t be fixed—if Americans are free to use their common sense. But the legal swamp of modern government won’t let us roll up our sleeves and make needed choices. That’s why Americans must come together and force a basic overhaul of America’s governing structures. Our freedom, and our children’s future, depend upon it.

Philip K. Howard, a lawyer, is the author of Life Without Lawyers: Liberating Americans From Too Much Law, just released by W.W. Norton, and the bestselling The Death of Common Sense. He is chairman of Common Good and advises leaders of both parties on legal and regulatory reform.

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Stay well,

Donald

Also, recent selected DJP Updates can be found at: http://donaldpalmisano.com/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

This DJP Update goes to 2308 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

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http://www.businesswire.com/news/home/20100921006484/en

DJP Update 9-21-2010 Early consequences of PPACA* not good! Each of us needs to get involved to save Medicine; Lagniappe: Medal of Honor

Sep 21

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 9-21-2010 Early consequences of PPACA* not good! Each of us needs to get involved to save Medicine; Lagniappe: Medal of Honor

Here is my continued attempt to get the message out about the need to put the patient in control with the doctor as trusted advisor. Additional AMA presidents, Dr. Johnson, Dr. Plested, and more, have emphasized government control is not the answer. AMA policy says the same! As I mentioned before, my first testimony on these issues to Congress was in 1976. My message has not changed. But government is encroaching more and more into the practice of Medicine to the detriment of patients and physicians. So I will use the avenues available to get the message out. I hope you will do the same. I know AMA is working on getting the private contracting & balance-billing resolution into Congressional language as mandated by the House of Delegates but the time is now to get it to the public and Congress. The game will be over if we study and study without dramatic action that is well publicized. And challenge Congress to sign on BEFORE the November elections. Don’t let folks in Congress give you empty rhetoric.

The clock is ticking. Medicine’s fate is up to us. Act now! See press release below. Determine how YOU can make a difference in the debate.

See my latest comments below in press release.

*The “Patient Protection and Affordable Care Act” (P.L. 111-148) was enacted on March 23, 2010 and amended shortly thereafter by the “Health Care and Education Reconciliation Act of 2010” (P.L. 111-152) as enacted on March 30, 2010.

This is “PPACA”

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September 21, 2010 10:39 AM Eastern Daylight Time

Patients’ Group Concerned Over Increasing Health Care Costs

Despite initial promises, study shows that health care costs will increase under health care reform law

WASHINGTON–(BUSINESS WIRE)–Coalition to Protect Patients Rights (CPPR) spokesman Donald J. Palmisano, MD, expressed concern this week over the recently passed health care bill’s flaws after new survey results indicated that overall health care costs actually will increase following the bill’s passage.

“by enabling unelected bureaucrats to make sweeping additional cuts to the Medicare program every year without Congressional approval. And the failure to restore liberty to patients and physicians to negotiate fees for the care needed continues to decrease access to care for patients in their hour of need.”

“It’s not surprising to those of us who paid attention to the legislative process that a new government analysis would show health care costs are going to be higher under the reform bill than they would have been without passage of the law,” Dr. Palmisano said. “What I’m most concerned about, however, is that these increased costs will add to the difficulty of patients getting the care they so desperately need. We need less government and more care in our health care system.”

“In addition to failing to rein in health care spending, the health bill’s cuts to the Medicare program’s funding will impede the ability of American patients to get the care they need,” Dr. Palmisano said.

Dr. Palmisano also addressed the planned creation of the Independent Payment Advisory Board which is tasked with cutting Medicare spending, saying it would adversely affect patient access to care “by enabling unelected bureaucrats to make sweeping additional cuts to the Medicare program every year without Congressional approval. And the failure to restore liberty to patients and physicians to negotiate fees for the care needed continues to decrease access to care for patients in their hour of need.”

Adding to the frustration regarding the bill, a Harvard study on medical liability costs in the United States, which the bill did not address, put the price of the current medical malpractice system at over $55 billion a year.

Said Palmisano on the subject: “The amount of money spent by doctors defending themselves from medical malpractice lawsuits in the flawed system is an unnecessary waste of money. Reflecting the meritless nature of many lawsuits, 82% of the cases are closed without payment to claimant and the doctor wins at trial 87% of the time. These billions could instead be used to provide patients with better health care or to reduce overall costs.”

The Coalition to Protect Patients Rights worked hard to achieve patient-centered health care reform during the course of the health care debate, staunchly opposing the Patient Protection and Affordable Care Act due to its failure to protect patients’ rights.

About the Coalition to Protect Patients’ Rights: The Coalition to Protect Patients Rights is a non-partisan, grassroots coalition made up of over 10,000 doctors, health care providers, advocacy groups, and concerned citizens who are dedicated to the implementation of patient-centered health care reform that will improve patient care. For more information, visit the Coalition to Protect Patients’ Rights website at www.protectpatientsrights.org. Also, check out CPPR’s Facebook account here, and its Twitter feed at PatientsNOW.

Contacts

Coalition to Protect Patients Rights (CPPR)
(703) 405-9407
media@protectpatientsrights.org

Permalink: http://www.businesswire.com/news/home/20100921006484/en/Patients%E2%80%99-Group-Concerned-Increasing-Health-Care-Costs

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LAGNIAPPE: Tweet of today at www.twitter.com/DJPNEWS regarding Medal of Honor

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Prez #Obama presented Posthumous #MedalofHonor to sons hero Chief Master Sgt. R. L.#Etchberger – died in Laos 42 yr ago; A moving tribute

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If you missed the ceremony today on TV, try to catch it on the news. President Obama said, in part, “Never too late to pay tribute to Vietnam Veterans”. Chief Master Sgt. Etchberger’s heroic sacrifice has been kept secret for many years. He save the lives of his fellow soldiers. A moving ceremony. The President also stated how inappropriate it was that returning veterans from Vietnam were treated with disrespect by some. The President mentioned that Chief Master Sgt. Etchberger spent time at Barksdale AFB in Sheveport, Louisiana. Yes, Freedom is not Free.

Here is an excerpt from one news report: http://www.star-telegram.com/2010/09/21/2484486/obama-awards-posthumous-medal.html

A native of Hamburg, Pa., Etchberger was an electronics expert without formal combat training in March 1968 when he single-handedly kept the North Vietnamese enemy at bay while helping evacuate wounded comrades from their radar station on a remote Laotian mountain after coming under attack.

The next morning, Etchberger managed to get three wounded comrades into rescue slings and on their way to safety. But Etchberger was fatally wounded after enemy ground fire struck the helicopter attempting to lift him to safety.

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Stay well,

Donald

Also, recent selected DJP Updates can be found at: http://www.donaldpalmisano.com/html/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

This DJP Update goes to 2294 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

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DJP Update 9-20-2010 2nd update: If last DJP Update today depressed you, here is a Saints suspense thriller to cheer you up!

Sep 20

Posted by Dr. Donald Palmisano in DJP Updates

DJP Update 9-20-2010 2nd update: If last DJP Update today depressed you, here is a Saints suspense thriller to cheer you up!

Take a break from the stress and relax with some activity you enjoy. Clears the mind of problems and new ideas emerge later. The Saints give inspiration to a city devastated by past politicians, Hurricane Katrina, and other maladies. We can learn from them about not giving up and give inspiration to those who volunteer to fix the mess politicians are bringing to Medicine. Let not Medicine be destroyed on our watch.

Hope you enjoy the tweets! 49ers played well against the World Champs!

www.twitter.com/DJPNEWS

Tweets during New Orleans Saints – San Francisco 49ers game

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The World Champion New Orleans #Saints vs San Francisco#49ers tonight 7:30 p.m. Central – Who dat! #NOLA #football about 4 hours ago via webThe world champs, New Orleans #Saints, lead San Francisco#49ers 9-7 at half. #NOLA #football about 2 hours ago via EchofonThe #Saints got behind but just scored and now lead #49ers16-14 with less than 2 min left in 3rd quarter. #NOLA #football about 1 hour ago via EchofonReggie #Bush is showing how good he is; just did 47-yard punt return! Go #Reggie! Go #Saints! #NOLA about 1 hour ago via EchofonField goal by #Saints #Hartley and they now lead #49ers 19-14. #NOLA #football about 1 hour ago via EchofonFor #49ers Frank #Gore is terrific; but 49ers giving up too many turnovers. #Saints Drew #Brees cool under pressure & great leadership.about 1 hour ago via Echofon #Saints Reggie #Bush hurt & off field. Sad! But #49ers just fumbled on punt return and Saints recovered on 49ers 15-yard line! #NOLA 41 minutes ago via Echofon22-14 after #Saints kick field goal. #49ers have ball with 2 min left to catch Saints. #NOLA #football 31 minutes ago via Echofon #49ers QB Alex #Smith on the move! #Gore scores for 49ers! 22-20. 49ers try 2 points but fail! Challenge success. Tie & 1:16 left.19 minutes ago via Echofon20 sec left. Saints Brees to Coltston pass good & now on 20, then 14. Two sec left. Field goal #Hartley good! #Saints win 25-22! Champs!11 minutes ago via EchofonIn last tweet, typo: #SaintsMarques Colston is correct spelling. Sorry. Great catch. Excited about #Saints win over 49ers!! #NOLA 5 minutes ago via Echofon

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P.S. Stop by http://twitter.com/djpNEWS and sign up for DJPNEWS to get tweet alerts that may not make it into DJP Updates. Twitter is free and takes minutes to join. Put email in and pick password. Great source of breaking news and you don’t flood your email with it. You can get free app for BlackBerry or IPhone etc and you check on tweets when you want.

Also, recent selected DJP Updates can be found at: http://www.donaldpalmisano.com/html/djp_update/

Donald J. Palmisano, MD, JD

Intrepid Resources® / The Medical Risk Manager Company

5000 West Esplanade Ave., #432

Metairie, Louisiana USA 70006

504-455-5895 office

504-455-9392 fax

DJP@donaldpalmisano.com

www.donaldpalmisano.com

www.onleadership.us

This DJP Update goes to 2294 leaders in Medicine representing all of the State Medical Associations and over 100 Specialty Societies plus some other friends.

You can share it with your members and it has the potential to reach 800,000 physicians.

To join the list, send me an email stating “Join DJP Update”

To get off the list, state ” Remove DJP Update” in subject line.

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