The DJP Update

DJP Update 10-30-2010 Want to save American Medicine?  Implement concepts in these two documents!  Lagniappe:  Vote Tuesday! Also summary of polls.

DJP Comment:  Read the view of Dr. Johnson & then the view of 85,000 physicians.  These concepts will save Medicine.  But we have to stop grousing around the coffee pot and get it done.

Document One: Op-Ed by Dr. Daniel H. Johnson,  former president of AMA & Visiting Fellow Heritage Foundation

DJP Comment:  Op-Ed published in Washington Times regarding ACOs; The last 3 paragraphs give the real way to cut costs: empower the patient & make the patients responsible for the consequences of their decisions.

JOHNSON: Patient beware of accountable care organization

By Dr. Daniel H. Johnson Jr.

The Washington Times

8:20 p.m., Wednesday, October 27, 2010

ANALYSIS/OPINION:

There is much to dislike about this year’s massive federal overhaul of the nation’s health care system. One of Obamacare’s potentially most dangerous — and least discussed — features is its call for government-sponsored accountable care organizations (ACOs).

What exactly is an ACO? What are the potential problems?

Conceptually, a typical ACO would be a health care cooperative involving a group of physicians, allied health care professionals and one or more hospitals, all working together to deliver appropriate care in the appropriate setting at the appropriate time in a person’s illness or injury. Treatments would rely on evidence-based protocols and cost-effective preventive measures wherever possible. Moreover, the carefully integrated ACO would rely on a state-of-the-art electronic information and patient medical record system.

The payment method is much less clear — primarily because medical payment issues are radioactive. But “capitation” seems the most likely mechanism. Under this approach, the ACO receives, upfront, a set amount of money per beneficiary for the provision of all services. Beneficiaries would have no out-of-pocket expense, with the possible exception of a small co-payment.

It all sounds wonderful and, in fact, ACOs should be one of the options available for patients to choose in a new free market for health insurance. But ACOs may prove far more popular among certain physicians, wonks and bureaucrats than among the general population of health care consumers.

Physicians in primary care specialties such as family practice, internal medicine and pediatrics find ACOs appealing because their services have been historically underappreciated and undercompensated. They have a strong and understandable interest in pursuing a mechanism that may correct this problem.

Many health care policy analysts feel that current physician payment incentives are wrong. Physicians are paid more for doing more work. The tacit assumption: This encourages physicians to pad their wallets by doing more than necessary. These analysts want to reverse the incentives so physicians are paid more for doing less work.

If you assume all want to “game the system,” it’s a tricky call. Suppose you were ill. Would you rather have a doctor who’ll give you the care you need, plus a little extra, or one who’d skimp a bit on the care? Both doctors would be wrong, of course; each should give the appropriate care. But to say one is ethically, morally or otherwise superior to the other is simply not correct.

Among the power elite in Washington, ACOs have great appeal as a mechanism through which they can exercise benevolent control. The unspoken premise of Obamacare is that government officials know far better than we do what is good for us. In their heart of hearts, most Obamacare proponents probably prefer a single-payer system. ACOs may be used as a cornerstone for building just such a system.

Consider how capitation, as opposed to fee-for-service, lends itself to promoting a single-payer-style treatment system. A capitated system requires both physicians and patients to be more sophisticated and knowledgeable about treatment options and the cost of each service. If a patient has back pain and the physician suggests an MRI, a patient with a health savings account (HSA) can ask, “How much does that cost?”

In a capitated system, if the system won’t cover MRIs, the physician may not even suggest it; thus, the patient may not know that the option exists.

If ACOs become the only possibility for organizing, financing and delivering care, physicians and patients alike will find themselves in a treatment straightjacket. Thus, government should not give ACOs a competitive edge. If the ACO is such a good idea, let it develop in an open pluralistic market with no subsidy or other government advantage.

Recall that under President Nixon, the HMO concept was introduced with a significant financial advantage provided by Congress. As the government-assisted mechanism moved along, it ultimately became necessary for state legislatures across the country to enact laws protecting patients from this good idea.

Certainly our system needs major improvement. But Obamacare is not the answer. The three main issues in health care reform are cost, access and quality — and cost trumps the other two.

The heart of the cost problem is a simple dilemma: The person consuming the services (the patient) is insulated from the cost of those services because someone else is paying for them. Neither Obamacare in general nor ACOs in particular address that very important point.

Instead of limiting beneficiaries’ choice to a mechanism that will insulate them from actual costs and permit paternalistic central control over every decision made by physicians in the care of their patients, we should be advocating expanding choice. Instead of assuming that patients are too stupid to choose how they receive treatment, we should put them in the driver’s seat. With their doctor riding shotgun.

• Dr. Daniel H. Johnson Jr. is a visiting fellow at the Heritage Foundation

———

Document Two: Letter to National Commission on Fiscal Responsibility and Reform (“Debt Commission”) from Coalition of State Medical and National Specialty Societies

DJP Comment:  The message of the right to privately contract and balance-bill without penalty by government is long-standing AMA policy (since 1993);  it also got a big boost at the 2010 AMA Annual Meeting of the House of Delegates (overwhelming support!), the policy-making body of the AMA.  In effect, the HoD said, write a bill for Congress, get it introduced, put a public relations campaign behind it, and get it passed!  Next week we will see how the AMA leadership is carrying out this mandate.  The future of AMA as a membership organization may depend on the important concept in this letter.

Check the signatures at the end of this letter.  If your medical society or specialty society is not listed, find out why!  Let’s all work together to implement this important policy.  If adopted by Congress, then doctors can stay in Medicine and patients can get access to care without the chains of the current system.  Let’s get liberty back!

In addition to the societies who signed, note there are 3 former presidents of AMA who signed the letter.  I look forward to seeing everyone in San Diego at the AMA Interim Meeting next week!

COALITION OF STATE MEDICAL AND NATIONAL SPECIALTY SOCIETIES

October 28, 2010

Hon. Alan Simpson, Co-Chair

Mr. Erskine Bowles, Co-Chair

National Commission on Fiscal Responsibility and Reform

1650 Pennsylvania Avenue N.W.

Washington, DC 20504

Dear Sen. Simpson and Mr. Bowles:

We are writing on behalf of the Coalition of State Medical and National Specialty Societies, which represents more than 85,000 physicians, to ask that you consider recommending a new third option for Medicar patients and participating physicians, which would allow patients to privately contract for services with their participating physicians without losing Medicare benefits. Such an option would enhance Medicare patients’ choice of physician and access to care, while at the same time giving the Federal government increased budget certainty.

The Commission is charged with making recommendations to Congress on how to deal with an explosive debt in the United States. As each member of the commission is keenly aware, entitlement spending, including spending on Medicare is not sustainable over the long-term. Over the short-term, Congress has failed to correct Medicare’s flawed physician payment formula known as the “Sustainable Growth Rate (SGR).” No one questions the fact that the SGR formula is fatally flawed and its implementation has been fraught with controversy and confusion. Just this year, Congress enacted multiple short-term, stop-gap measures for durations as short as one month. On three occasions, Congress failed to act in time and Medicare payments were cut by more than 20 percent. The Centers for Medicare and Medicaid Services (CMS) reacted by ordering carriers to hold payments until legislation was passed. Importantly, these steps did not protect physician practices from all the consequences of the repeated Congressional delays. On the contrary, payment uncertainties and delays were highly disruptive. Many practices were forced to seek loans to meet payroll expenses, lay off staff, or cancel capital improvements and investments in electronic health records and other technology. Furthermore, when payments resumed, many physicians experienced long delays in receiving retroactive adjustments. We anticipate that many physicians will be examining whether it makes any sense to continue their current relationship with Medicare given the severe disruptions of the past year. The situation will be worse in the future. The bottom line is that the current structure of the Medicare payment system is not sustainable and we need a new approach.

Currently, there are only two real options for Medicare beneficiaries in the fee-for-service system. Under the first option, a “participating physician” accepts Medicare’s allowance as payment in full. The Medicare beneficiary is required to pay the Medicare co-pay. Under the second option, a “non-participating physician” (who does not accept assignment) may bill patients a limited sum (15%) over the Medicare allowance. Neither of these options provides patients and physicians with the stability they need to ensure an optimal Medicare system.

Given the uncertainties of the current payment structure and the grim forecast of future payment rates that are not keeping up with the costs of medical practice, many physicians are now limiting the number of Medicare beneficiaries they treat; thus limiting access to care. Our proposed third option would help address this serious problem by permitting Medicare beneficiaries to freely contract with the physician of their choice for an agreed upon sum. The Medicare beneficiary would pay the agreed upon amount to the physician and the Medicare beneficiary would be reimbursed the “Medicare allowable amount.” The Medicare beneficiary may also assign benefit if he or she chooses.

We believe that those who have paid into the Medicare system should have the right to choose their doctor and to enter into agreements as to the fees for those services without penalty to either party. Medicare patients should not be required to forego the value of their Medicare insurance because they privately contract with the physician of their choice. And physicians who privately contract with a Medicare patient should not be required to opt-out of the Medicare program for two years, as is the case under current law. By allowing patients to privately contract with their physicians, patients will have access to a greater number of physicians. In addition, Congress can obtain budget certainty by establishing payment rates and giving physicians and patients the freedom to privately contract for any difference.

We hope that you give favorable consideration to this idea and make it part of your recommendations to Congress. We would welcome the opportunity to discuss this idea further with you and members of the Commission. In the meantime, if you have any questions or need additional information, please contact David Cook, CEO of the Medical Association of Georgia at 678-303-9251 or dcook@mag.org.

Sincerely,

Medical Association of the State of Alabama

Medical Society of Delaware

Medical Society of the District of Columbia

Florida Medical Association Medical Association of Georgia

Kansas Medical Society

Louisiana State Medical Society

Mississippi State Medical Association

Medical Society of New Jersey

South Carolina Medical Association

Tennessee Medical Association

American Academy of Facial Plastic and Reconstructive Surgery

American Association of Neurological Surgeons

American Society of General Surgeons

Congress of Neurological Surgeons

Daniel H. Johnson, Jr., MD AMA President 1996-1997

Donald J. Palmisano, MD, JD, FACS AMA President 2003-2004

William G. Plested, III, MD, FACS AMA President 2006-2007

cc: Members of the Commission Mr. Bruce Reed, Executive Director, NCFRR

——

LAGNIAPPE: Vote on Tuesday if you have not voted early!  This is a VERY important election!  If you want today’s summary of polls from Dr. Ron Faucheux at Clarus Research, go to:

http://hosted.verticalresponse.com/332174/1aa29b1441/1422002038/556215b6f7/

Stay well,

Donald

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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 2317 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”

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DJP Update 10-28-2010 AMA & hidden treasures; Tulane Medical gets Spencer Forman Award AAMC; Lagniappe: books and authors & a camera

ITEM ONE: AMA & hidden treasures

The American Medical Association (AMA) has a distinguished history since its founding in 1847.  See summary and painting at:

http://www.ama-assn.org/ama/pub/about-ama/our-history/the-founding-of-ama.shtml

EXCERPT:  …young Dr. Nathan S. Davis. Dr. Davis became known as the founder of the AMA because his 1845 resolution to the New York Medical Association calling for a national medical convention led to the forming of the AMA. Dr. Davis was only 30 years old when the AMA was founded, and he devoted the next five decades of his life to the service of the medical profession and the AMA. Dr. Davis became president of the AMA in 1864 and was the first editor of the Journal of the American Medical Association, from 1883 to 1888.

At the founding meeting the delegates adopted the first code of medical ethics, and they also established the first nationwide standard for preliminary medical education and for the degree of MD.

———–

DJP Comment:  Never underestimate the leadership of the young physicians!

With the exciting beginning of AMA,  AMA has had periods of controversy during its long history.  The recent health system reform debate in Congress is one example.  As the readers of the DJP Update know, I have been critical of AMA’s support of the bills that led to PPACA, the new law of the land.  It is my opinion that specific long-standing AMA policy passed by the House of Delegates would preclude support of the law.  I maintain that position.  However, just because the AMA leadership and I have a significant difference of opinion, that does not cause me from encouraging physicians to stay in AMA and encouraging others to join.  If you don’t like what Congress does, you vote out the folks in Congress.  You don’t leave the USA and give up your citizenship!  Next week we will have the opportunity to vote on resolutions in San Diego at the AMA Interim Meeting.  Make your voice heard.

Also, a very important date is November 2, the national elections.  Vote and encourage others to vote!  That is part of freedom and liberty.  If you don’t participate, you have no basis for complaint.  As for AMA leadership, continue to send them a strong message and if they don’t respond, vote them out of office.  The right to privately contract and balance-billing is a strong message sent to AMA leadership at the June Annual Meeting of AMA. They now have to deliver on the mandate – not a token action for enactment into law but an aggressive campaign for passage.  Don’t dilute the message even if AARP or some other group is opposed to the message.  Go for liberty.

Some words about hidden treasures of AMA. There are many dedicated staff people working at AMA.  I learned much from them during my 9 years on the AMA Board.  They were invaluable sources of background information prior to debates and testimony during my tour of duty as president-elect, president, and immediate past-president of AMA.  If AMA didn’t exist, these skilled individuals would not be in one site as important resources to physicians.

I can’t name all of the departments in this short DJP Update but I wanted to give two examples of treasures:

1- Science and Technology Department; This group also staffs the Council on Science and Public Health (CSAPH); Barry D Dickinson, PhD, is  Director of Science and Technology at American Medical Association (AMA).  The retired Joe Cranston, PhD, was my go-to-person when I was on the AMA Board.  He always gave concise key information pertinent to the debate of the moment.

Treasure trove of scientific information in this department.  Check out the publications at AMA Website.  Also watch the discussion in reference committee K that will contain 3 reports of the Council on Science and Public Health:

http://www.ama-assn.org/ama1/pub/upload/mm/2010i/handbook-complete.pdf

Reports of the Council on Science and Public Health

1 Physician Health Programs (deals with identifying and treating physicians who are impaired in some way before there is an effect on patients)

2 Violence in the Emergency Department

3 Gulf Oil Spill Health Risks: Update on AMA Involvement

—

Also this department plays a key role in monitoring and submitting testimony based on AMA policy and science such as the importance FDA hearing on Biosimilars and Biologics November 2-3.  See the FDA notice and option to view telecast at:

http://www.fda.gov/Drugs/NewsEvents/ucm221688.htm

PPACA contains a section on this subject also. PPACA: Title VII, Improving Access to Innovative Therapies (provision for the approval of biosimilars (generic biologics)

Ppaca&Hcera; Public Laws 111-148&111-152: Consolidated Print—10

TITLE VII—IMPROVING ACCESS TO INNOVATIVE MEDICAL THERAPIES

Subtitle A—Biologics Price Competition and Innovation

Sec. 7001. Short title.

Sec. 7002. Approval pathway for biosimilar biological products.

Sec. 7003. Savings.

and an AMNews article at:

http://www.ama-assn.org/amednews/2010/04/12/gvsa0412.htm

EXCERPT: “American Medical Association policy supports the development of an approval pathway for follow-on biologics. But it says such a pathway should not compel physicians to consider follow-ons as interchangeable, or therapeutically equivalent to the original.”

By the way, AMA policy states:  D-125.989 Substitution of Biosimilar Medicines and Related Medical Products

Our AMA will: (1) monitor legislative and regulatory proposals to establish a pathway to approve follow-on biological products and analyze these proposals to ensure that physicians retain the authority to select the specific products their patients will receive; and (2) work with the US Food and Drug Administration and other scientific and clinical organizations to ensure that any legislation that establishes an approval pathway for follow-on biological products prohibits the automatic substitution of biosimilar medicines without the consent of the patient’s treating physician. (Res. 918, I-08)

2- Litigation Center of AMA and State Medical Societies

Two key players: Attorney Leonard Nelson is Director; General Counsel of AMA Jon Ekdahl

http://www.ama-assn.org/ama/pub/physician-resources/legal-topics/litigation-center/about-us.shtml

General info and listing of executive committee members

http://www.ama-assn.org/ama/pub/physician-resources/legal-topics/litigation-center/articles-litigation-center.shtml

AMNews articles about cases

I served on the executive committee when I was on AMA Board and I can attest the Litigation Center did great work.  The work continues.  Read some of the success stories on the AMA Website.

ITEM TWO:  Tulane Medical School get Spencer Forman Award from AAMC

http://tulane.edu/news/newwave/102810_healthcare_heroes.cfm

See video at:  http://www.youtube.com/watch?v=aRk0N4HO1js&feature=player_embedded

Includes some Hurricane Katrina scenes.  Enjoy the music too!

EXCERPT from Weblink about Tulane getting Spencer Forman Award from AAMC

On Saturday (Nov. 6), the Tulane School of Medicine will receive a national service award from the Association of American Medical Colleges. At the ceremony, Tulane will present this video, produced by Mary Mouton of Mouton Media with assistance from Melinda Viles, design manager for Tulane communications.

The award, one of the 134-year-old organization’s most prestigious honors, recognizes Tulane School of Medicine as a national leader for creating a network of community health centers; training its students to focus on community service; and empowering residents devastated by Hurricane Katrina to take charge of their personal health as well as the health of their communities.

“In the past five years since the storm, Tulane University School of Medicine has played an integral role in transforming healthcare delivery in our community,” said Dr. Benjamin P. Sachs, Tulane senior vice president, medical school dean and the James R. Doty Distinguished Professor and Chair. “We have worked hard to create a culture at Tulane that empowers students, faculty, staff to improve the health of communities locally and around the world.”

First- and second-year Tulane medical students collectively commit to more than 10,000 community service hours each year, and Tulane students run two free healthcare clinics, the Fleur de Vie Clinic at Covenant House and another at Bridge House, a New Orleans substance abuse center…

Lagniappe: Wonderful experience at intense writing course in Cape Cod this past week.  Famous authors taught courses; 8 hours per day; at night I studied and read examples from fiction of points made in class.

Authors and suggested books to read:

JOHN HOUGH, JR.

He taught two days of writing dialogue and creating memorable characters prior to the start of the sessions with Dr. Tess Garritsen & Dr. Michael Palmer.

Read:  “Seen the Glory”, a story about two brothers in the Civil War and Gettysburg.

More about him at: http://authors.simonandschuster.com/John-Hough-Jr/17135450

and info at book also at Amazon:

http://www.amazon.com/Seen-Glory-Novel-Battle-Gettysburg/dp/1416589651

TESS GERRITSEN

The one and only Tess.  A wonderful lady physician that I met at Maine Medical Association over the years when I gave presentations there.

See her Website at: http://www.tessgerritsen.com/

and her blog at:

http://www.tessgerritsen.com/blog/

The photo of Tess and Dr. Michael Palmer that I took of them during the meeting is featured at the blogsite of Tess at:

http://www.tessgerritsen.com/blog/my-weekend-with-michael-palmer/

In my interview of Tess, I asked her to recommend 3 of her books for my readers.  She said:

-The Surgeon

-Gravity

-The Bone Garden

By the way, the TV series Rizzoli & Isles is based on her books.  Wonderful TV series.

MICHAEL PALMER

Read about his books at: http://www.michaelpalmerbooks.com/

Another successful physician writer with numerous best-sellers.

I also asked Michael to recommend 3 of his books to my readers on the DJP Update.  He said:

-The Second Opinion

-A Heartbeat Away (To be released February 15, 2011 according to Amazon Website;  I pre-ordered it for my Kindle)

-The Last Surgeon

—–

Theses authors are excellent teachers and they freely shared helpful hints.  Very candid individuals.  Enjoy the reading of their books!  I certainly did.

P.S. Gadget update.  The Canon S95: A terrific new camera that is small and allows complete manual control PLUS allows JPEG and RAW images to be recorded.  That camera was used for the picture of Tess and Michael.

As you may know, most small cameras record in JPEG.  With JPEG recording, the camera software decides what data to keep for the image you view and throws the rest away.  The RAW capability saves ALL of the data.  Think of it as a digital negative.

Stay well.  Vote early!  Get some rest on November 2nd and stay up late for the returns.  It will be exciting.

Donald

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://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

DJP@donaldpalmisano.com

www.donaldpalmisano.com

www.onleadership.us

This DJP Update goes to 2317 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.

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/

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

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

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://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

DJP@donaldpalmisano.com

www.donaldpalmisano.com

www.onleadership.us

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”

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