The view from the other side re health care
Bookworm on Aug 15 2009 at 1:36 pm | Filed under: Health
I had a fascinating conversation yesterday with a physician who fervently supports the proposed health care plan — at least in theory, as he admitted he didn’t know what was actually in the 1000+ page bill that seems to be the House front-runner.
He and I began with a few points of agreement. He and I both agree that medical costs are out of control, and that this lack of control reflects a perversion of the market. As matters now stand, the current system does (as Obama so inarticulately said) give an incentive for unnecessary treatment. I’ve always seen that in the way in which elderly relatives of mine get their health care. Because their doctors are compensated by office visits, the doctors refuse to relay information over the phone. Every test requires a follow-up office visit to be told the test’s results. The doctors are also hugely in favor of giving tests. When my mother had ulcer symptoms, rather than trying a two week round of Prilosec (which, if it controlled the symptoms, would have been pretty good evidence that there was an ulcer), the doctor insisted on an expensive and invasive scoping — which showed an ulcer. I suspect this excessive testing is also a reflection of malpractice concerns, but there’s no doubt that profit figures in there too.
This doctor and I were also very supportive of the Kaiser model. I happen to be a Kaiser patient and am extremely pleased with the care I receive. Because the doctors are salaried (and salaried well), their only goal is to give appropriate care. Giving unnecessary tests doesn’t provide any benefit to them. Nor does withholding tests save them money. Because Kaiser is so large, it owns all the necessary labs and equipment, so tests are pretty much a fixed cost. Also, because it’s so big, it can negotiate cheaper pharmacy costs. I’m sure people have had bad experiences with Kaiser — it is, after all, run and staffed by humans who are fallible — but overall it is an incredibly highly ranked medical care provider.
Aside from those agreements, though, my doctor friend and I strongly parted ways at a philosophical level. I believe that legislation can be created to change the incentives in the marketplace — or that, at the very least, we should start with that experiment, before diving into a wholehearted destruction of the current system. My friend, however, believes that our current system creates “social injustice” and that the only way to remedy it is through government intervention. To the extent doctors and companies profit from the current system, he believes these profits are immoral. When I mentioned the marketplace determining what is just and what works, he said that’s just wrong. The government, he said, is singularly well-suited to deciding which treatments (and, by extension, which profits) are just and which are not.
Incidentally, as part of the social injustice issue, this doctor believes that it is appropriate to extend the plan to cover illegal aliens. He likens the Mexicans who come here and send money back home to Jews trying to escape the Nazis by immigrating illegally to Palestine in the 30s and 40s. That is, he thinks the Mexicans are in precisely the same situation as death camp refugees and that we are morally wrong to deny them free ingress.
The doctor had a very interesting take on the current uninsured. I said that a lot of people are opposed to the proposed plan because they recognize that those numbers being bandied about regarding uninsured are false. That is, the 45 million (or whatever) uninsured aren’t uninsured simply because of poverty. The vast majority are either illegal aliens (and you can see his views about those above) or voluntary uninsured. As to the latter, my friend thinks they’re the real problem. He understands that these people are voluntary uninsured because they are young and healthy. They’re gambling that they won’t need insurance. Or they might be marginally insured, in that they buy a $10 policy with a $10,000 deductible, just in case something really bad happens. They are not putting money into the system.
What this doctor likes about mandatory universal health care is that it forces the voluntary uninsured into the system. He thinks it grossly unfair that they are not paying into the system, while people who need insurance are paying. If there were more money in the system, the person with a preexisting condition would not be required to pay as much for his insurance. In other words, he thinks that the insurance system should be a cross between an uninsured motorist requirement and social security. He freely admits that this is a government mandated spread the wealth approach, and one of which he approves.
Because he has a philosophical approach that requires everyone to be in the health care market, whether they want to be or not, he is unperturbed by CBO numbers projecting vast increases in the cost of health care under the new plan. He thinks the CBO people, being accountants and not doctors, have no idea what they’re talking about. What he envisions is a brave new world in which the government simply provides more insured people who will use medical services. He finds it inconceivable that universal health care (which is a system by which all people are insured, but medical care providers continue to be privately owned) can shade into a single payer, government-owned system.
He does not believe that having the government as an insurance provider will change the system and drive out private insurance. Nor does he believe that, even if all private insurance is gone, with the government being the only bill-payer, that this will do anything other than purify the private medical system of the current social injustices that plague it. He also refused to believe that, in other countries that have socialized medicine, there are treatments that are denied to people, not because the treatments don’t work, but because the people are deemed (by government mandate) to be too old or too ill to be worthy of treatment. As for government lists of treatment, he says we have them already, because every care provider is in thrall to Medicare and related government programs. He did not see a difference between the fact that Medicare sets prices, but does not yet set age or health boundaries for providing treatments.
He is very disturbed by the opposition to the health care plan, which he sees as the product of Republican cabals who are shipping agitators into local town hall meetings. The absence of any concrete evidence of such busing (such as buses) does not change his mind.
I explained that people are also concerned that they’re being sold a bill of goods that is not as promised. The rush to pass a bill (three weeks “deliberation” to change a sixth of the economy) didn’t bother him at all. “That’s how things go.” When I raised specific concerns about the existing bill (the inability to stick with your insurance if you change jobs, the incentive for employers to dump insurance and drive people into the government system, the government decision boards re treatments, the enhanced access the government will have to our finances) he just didn’t care. He thought those were petty concerns and was sure I was wrong. He also discounted the hidden taxes in the bill. “Obama promised that he’d veto any taxes.”
The doctor also dismissed the fact that many of the bill’s proponents — including the president himself — are on record as supporting single-payer care (which is different from the universal care this doctor supports). He denies that Obama lied at the New Hampshire townhall when he when he said ““I have not said that I am a supporter of a single-payer system,” despite several past instances of his having said precisely that. “There’s no lie there,” said my doctor friend. “Obama did not say that he ‘never’ supported single payer care. He’s talking in the present tense. He doesn’t support it now.” I said that, if that’s what the great communicator meant, that’s what he should have said, including explaining why he’s changed his mind. “Nah,” said the doctor. It was clear.
The conversation ended there.
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Well… you _are_ in Libland.
Still, it’s discouraging. Basically, what he’s saying is that health is everything, and nothing else has any importance. Perhaps understandable since he’s a doctor.
What do you want to bet that he has a healthy savings/investment account? Do you think he’d give it all up to assure the health of himself and his family?
Fox News just had a short feature article on a Grand Junction HMO that is non-profit. It sounded like a good option that should be considered – that is, many smallish HMOs or Health COOPs (which is what this group sounded like), not one huge massive nationwide HMO. There would still be problems – travel etc – but if we’re going to go down the road to national health care, I’d like to see us take 10-20 years of States that want it trying different models, and if one is successful, then integrate it into regions, and eventually, nationally. Massachusetts, Tennessee and Hawaii have all tried and failed so far.
The problem I see is that as far as I’m concerned, the present Health Care legislation is not so much an effort to address the cost of health care as it is to seize power for the Federal Government.
Isn’t “I have not said” past perfect? If he meant now he should have said “I did not say”.
He’s a doctor, not an economist. How does he know this won’t occur. He’s more than willing to discount the CBO as experts, then sets himself up as one.
I’d have asked him how much many he makes. While the Canadian system is still “private”, doctor’s salaries are set by the government. I’d have suggested that he makes too much, and one of the ways to reign in those costs is by reducing his salary. I think a really good surgeon is worth about $150,000 a year. Most of them should make $100,000. Since he’s in it for social justice, he shouldn’t have a problem with that.
I’m willing to sit on the panel setting doctor’s salaries, by the way. I’ll even volunteer my services, since I’m only in it for social justice.
Ask Dr. Doolittle if he would mind being reassigned to ‘practice what he preaches’ somewhere other than S.F.
Reagan 1961:
http://www.youtube.com/watch?v=fRdLpem-AAs&eurl=http%3A%2F%2Fwww%2Eweaselzippers%2Enet%2F&feature=player_embedded#t=565
my doctor friend and I strongly parted ways at a philosophical level
Ahh… if it were just that simple, Book..you are still living and functioning on planet Earth. This doctor has all ready reassigned himself … to ‘lala land’
Book, you have my e-mail address. Please give me this doctor’s name so I can avoid him like the plague. If the guy is that big a dunce when it comes to thinking logically, I don’t want to take the chance that he’s as big a dunce when it comes to thinking medically.
The doctor is a man of faith.
Personally, I’m not.
At least, I have no faith in the government.
CM,
I assume since he’s in it for the social justice, he practices at the Free Clinic.
By the way, since at some time in the past President Obama was for a single payer plan, and since he now isn’t, would it be fair to assume, and would the good doctor agree, that President Obama might at some time in the future again be for a single payer plan?
Brian, we don’ need no stinkin’ past perfect. We can speak English any way we please.
For you to say otherwise is racist.
Precisely because the doctor dismissed Book’s concerns as ‘petty’ would it not only keep me out of his office, but running for the hills.
My friend, however, believes that our current system creates “social injustice” and that the only way to remedy it is through government intervention.
Like in poker, there’s the ‘tell’. It’s not just about health care reforms, the broader agenda is to hand over sanity to central government. Never mind, that the judicial system is designed to sort that out.
He likens the Mexicans who come here and send money back home to Jews trying to escape the Nazis by immigrating illegally to Palestine in the 30s and 40s. That is, he thinks the Mexicans are in precisely the same situation as death camp refugees and that we are morally wrong to deny them free ingress.
Hope this doctor is not a cosmetic surgeon, specializing in ‘boob’ jobs. With this type of thinking and sense of balancing the scale – some poor woman would surely leave looking like a Picasso painting (one up/one down and facing in opposite directions, too)!
[...] The view from the other side re health care [...]
1. Unnecessary tests rarely profits the doctor ordering it, whether it be lab tests or procedures. When a doctor sends a patient to get endoscopy, the gastroenterologist profits (if not on salary) from the procedure, not the referring physician. Yes the referring doctor could have just given you a trial treatment, as well as the gastroenterologist. Kaiser though also would not profited from the endoscopy it this was an in-network service. Kaiser predominantly profit from the subscription/insurance fee of its members by taking more in than they spend, by taking money from people who use less of kaiser services and spending some (but not all) of it on those who need and use more.
2. Health systems thus profit by taking money from those who subscribe for health services but do not use as much of it as they put in. If we look at our national health care system overall, the problem may seem that the uninsured are not putting money into the system and thus your doctor’s impression may seem correct but it is not. The uninsured do put money into the system already through taxes they pay to the local, state, and federal system. Those who choose to go uninsured likely believe that they would not need to be insured because they don’t expect to use health care should have that choice respected. In large part these are young people who really don’t need to. To think we should force them, or those who cannot afford insurance, to buy insurance or buy into the health care finance system seems coercive to me.
3. I have no problem with the doctor being agreeable to the government spreading the wealth in this regard for health care. If you think it is a form of taxation for the general well being of the nation, like that of national defense for instance, or border control, or disasters relief a health care tax might even seem reasonable. What is not reasonable is to think that as a democracy that rose party out of refusal to pay unfair taxes, that the doctor would take exceptions to people, whether it be a majority or a minority voice of protest.
4. For a learned person, the doctor still made several gross error in analysis and judgment. The first being a sampling error based on anecdotal experience. Just because the Kaiser system works does not mean a government managed system would. Yes clearly a “public” option will drive private plans out of business because the government plan will get income from everyone through taxation, even the already insured will pay them, thus the government’s “public” option plan will always have a higher ratio of pay-ins to pay-outs than any private plan could match. And since the government has the right to set health care standards for all, private health system cannot hope to compete. In addition, the government has never been known for being efficient financially or in service provided whether it be Amtrak, the post office, or Veterans Health Administration. What partly work now, or even what works well now, can work even less later. Not all reforms make things better.
5. The second error the doctor made is likely based on hubris of being an educated physician thinking he knows better for the patient than the patient himself. Though the current drive for health care reform is really about reforming to control costs rather than improve care access (though some will certainly benefit from improved access), when it comes to the ultimate and primary recipient of health care, it is about quality of care. The current anxiety and consternation among the majority of Americans center around the care they are currently getting as contrasted to the care they may or may not get with the reform. The doctor likely believe he can deliver the same (high?) level of care to his patients and are thus is dismissive of patients general concern over health care reform. He may not realize some patients may not think so highly of his delivery, and he certainly underestimate how someone smarter (or perhaps even less smart than he but has a better political pedigree) than he, another physician installed as a health care czar, may feel inclined to believe he is wasteful and starts to dictate how he could do better, placing him in a position to have to change his standards of practice to conform to someone else’s standards. When one is smart, there is a tendency to believe that one is right and that this right is self evident to anyone else with half a brain.
6. The third error the doctor made is allowing his own convitions and bias blind him to information challenging the veracity of his own beliefs.
Well it takes all kinds.
I have been having an email discussion with one my niece’s husbands. He is an NEA member and a flaming liberal. Obviously he supports Universal Care, whatever that means, and he supports Obama care, even though neither he nor anyone else knows exactly what that is.
My daughters are in the health field, and my son-in-law is Director of Social Services at a county owned hospital in SoCal. They all think “reform” is needed; by that they mean more services for more people. They have no idea how to fund it. The county hospital is in trouble.
My twin grandchildren were born prematurely in a Kaiser HMO. Their care was absolutely first class; the boy was kept in pediatric ICU for two months, and the girl for one month. No questions asked. On the other hand every time they get an ear or throat infection they are given the standard, generic ampicillin even though it has never worked. After that runs its course they go back and get an antibiotic that works. So, they nickle dime the small things and step up on the large. Still, over-all my family is pretty well satisfied with the HMO.
During World War II my mother enrolled us in a co-op type clinic while my Dad was gone. For a fairly nominal fee we got full service care. She had a major operation and my brother and I both had tonsillectomies while we belonged. It was probably bare bones, but they provided competent care at affordable rates. I suppose it was the equivalent in some ways of the present day HMO. Unfortunately, given the present day litigation and regulatory environment, it probably could not survive.
I don’t know how you resolve the social justice concerns of the Leftists in the context of medical care, other than putting everyone on a one-size fits all government program. But, you would have to just ignores the fact that a small percentage of the people would be buying medical care for a great many. I do not call that social justice.
Just a clarification of one point in my above post. I said the county hospital is in trouble. Actually, this was a world class rehab facility at one time. Over the past ten years or so it has been squeezed by the county to the point that it is becoming a shadow of its former self.
This facility could operate profitably, even though most of its revenue is from MediCal, except that the county government layers so much administrative overhead (that has nothing to do with hospital operation) that it buries them financially. This situation could be a laboratory for studying the effects of government “management and oversight” on a line organization. I firmly believe that it is a precursor of what we can anticipate under the Dimocrat health system–if they get their way.
Your physician friend may be educated, Book, but he is neither smart nor wise.
The doctor is clearly a liberal. This is most clearly seen in his statement that he doesn’t expect ObamaCare to become a single-payer government program, but *if* it does, at least that will remove the “immorality” from the system.
The doctor still clearly likes Obama as President, and still trusts him. He’s either blind to all the inconsistencies, or he considers them irrelevant.
He reminds me of my own lukewarm support for President Bush (George W). I liked him, and still trusted him, and was in favor of his approach to Islamofascism and Iraq. But I was horrified at Bush’s yearly deficits, and his strange choices on illegal immigration and Supreme Court Justices (Harriet Myers) and other many RINO/Republican-lite tendencies. But only at the end, when he completely collapsed on the “financials crisis and housing meltdown” did he finally lose my support. I should have seen his slow and steady abandonment of conservative principles coming all along.
The doctor’s approach to health care and his trust in Obama remind me of my somewhat hesitant support for Bush. I wonder if he will end up as deeply disillusioned as I ended up? I wonder if Obama will do as much harm to the Democrat “brand” as Bush (by the end) did to the Republican brand.
By the way, I still do like President Bush as a person. He’s a class act, as his behavior since the last election shows clearly. While Obama, Carter, and the Clintons regular savage him and his presidency, he refuses to engage in their sorry, nasty, lurid political theatre game. He’s a class act indeed. Just… each time when the pressure was on, his consistent abandonment of conservative principles left me rather helpless and hopeless.
Here’s hoping that as Obama takes the different approach – and continues to stick to his far-left Statist program no matter what – that all these people, including the doctor, who (still!) expect Obama to be reasonable and centrist, will become disillusioned themselves. Hopefully before 2012.
I think the same thing, Danny.
I keep wondering, HOW can these doctors POSSIBLY be smart enough to get through medical school and treat patients with complicated diseases which require an understanding of cause and effect still manage to be so (and I hate saying this, but . . . ) STUPID??????
What if there were a proposal to radically change our financial system and you were told that the planning and debate of it could only take three weeks? Don’t you think there would be an uproar?
Well, how are they ok with radically changing something as large and complex as healthcare?
I . . just . . . don’t . . . get it.
Deana
SADIE: LMAO!
Deana…don’t hesitate to feel badly about using the ‘STUPID’ word. As my own expression goes…if the shoe fits – make’em wear both of them!
Amazing, though how the brain works. You pointed it out nicely using ’cause and effect’. I had a friend some years ago, doctor, surgeon, physicatrist and eventually a degree in computer science. Suffice it to say, book-wise quite brilliant. Life-wise.. he got bored with each of his endeavors along with the wives that came with each stage. Devoid of the ability to see cause and effect when it came to his personal life and an ultra-super-duper liberal, a brain disease that clogs the ‘thinking’ arteries.
which require an understanding of cause and effect still manage to be so (and I hate saying this, but . . . ) STUPID??????
They never studied the cause and effect of what truly mattered: propaganda. They studied germs, not liars. They studied viruses, not propagandists. They studied disease and its vectors, not the weaknesses of the human mind.
They’re not experts, not even close. They have no context in which to judge. So they have to listen to people like Obama who tell them how it will be. Just as patients must listen to doctors to tell them what their state of health is.
It is also a representation of a stunted and tunnel vision esque education system. Specialization is important, but not to the point where you become a drone unable to question or even recognize basic elements such as human deception.
“It is also a representation of a stunted and tunnel vision esque education system.”
I agree, YM. Someone, it may have been Winston Churchill, once said that the most important thing about education is that it should enable you to distinguish between what is important and what is pure rot. Already in the late-1800s, G.K.Chesterton was criticizing government education as a means to propagandize rather than to educate the masses, a point with which my teacher wife fully agrees.
Our education system has been failing us for long time. Maybe Obamaworld and the physician Book just described represent the inevitable outcome thereof.
Hello all. Long time listener, first time caller.
I think the current debate provides a timely opporunity to respond to this:
“I said that a lot of people are opposed to the proposed plan because they recognize that those numbers being bandied about regarding uninsured are false.”
If by “insurance” you mean an enforceable contract that the insure company will pay for what it says it will, then the ranks of the uninsured should include everyone who gets their insurance through their employment. I will cite my blawg rather then go into detail here:
http://problemiserisa.blogspot.com/2009/08/first-post-welcome-erisa-is-employee.html
but please don’t just take my word for it. Do a little googling and you will see that every word I say there — polemic though it is — is true.
If this is too off-topic I apologize and will drop the subject. But in the context of health insurance reform I believe this is critical and that the vast majority of people do not realize how inenforceable their insurance polciies really are.
Sounds to me like someone needs to read Thomas Sowell’s book, The Quest for Cosmic Justice
Richard,
My only exposure to the effects of ERISA was my fudiciary responsibility to my clients, so this is all new information.
Your unfortunate example of Rhonda Bast, who died while waiting approval for a treatment. Was the treatment, by any chance, experimental?
Richard Johnston
I feel like breaking out with a chorus or two of …You say tomato and I say tomato.
They call it a Erisa and I call it Eraser.
Sorry, don’t mean to make light of of your point. Sometimes when the pressure mounts and the information overflows into my gray matter…to release the choke, I often find solace in music.
First, the “death panels” got jettisoned (which I chalked up as a victory to Sarah Palin). Now I read the “public option” may be gone. This looks like Obamacare in retreat. This looks to me like a weak, vacillating President, who as I believed from the get go never had the requisite executive, or legislative, experience and has no real ability to grow in the job. Reliance on his personal charisma (“I have a gift,” he told Harry Reid. Should have saved the receipt on that gift), his “calibrated” and disingenuous statements, to paraphrase John Wayne in Rio Bravo, don’t get it done, Dude.
Brian E said:
“Your unfortunate example of Rhonda Bast, who died while waiting approval for a treatment. Was the treatment, by any chance, experimental?”
The contention was that it was investigational, a very close cousin of experimental: the therapy in question was high dose chemo with autologous bone marrow transplant. At the time the state of the art was that it was the best hope of survival for patients in Ms. Basts’s position; I believe the medical science has evolved since then and it is no longer as well regarded.
In any case, the take-away point here, IMO, isn’t whether Prudential was correct or incorrect in this particular case. It is that under the law it didn’t (and under current law still doesn’t) matter; the Basts’ case never got to the point of proving their point because their claim itself was a non-starter. There was no remedy, and therefore no resolution of that question was even necessary, because the Basts were out of luck either way.
Richard,
Doesn’t the company sponsoring the plan have any liability?
“the take-away point here, IMO, isn’t whether Prudential was correct or incorrect in this particular case.”- Richard Johnston
Actually, I think it does make difference. I suspect the plan contained language excluding those types of treatments. If that is true, the Bast’s had no claim against Prudential either way.
Look, I’m not a fan or defender of insurance companies, since my eyes glaze over whenever I read the fine print and the language always favors the insurance company. Which goes to my question. Shouldn’t the company sponsoring the plan make sure its employees are aware of the limitations of the plan?
Brian E said,
“Richard,
Doesn’t the company sponsoring the plan have any liability?
“the take-away point here, IMO, isn’t whether Prudential was correct or incorrect in this particular case.”- Richard Johnston
Actually, I think it does make difference. I suspect the plan contained language excluding those types of treatments. If that is true, the Bast’s had no claim against Prudential either way.”
The company sponsoring the plan (read the employer buying the group insurance policy) is required to distribute Summary Plan Descriptions (“SPDs”) to everyone at delineated times. And the SPDs are supposed to convey among other things the circumstances in which benefits may be denied or terminated. But a failure to comply does not lead to liability; it might lead to an injunction to fix the SPDs, for instance, but that’s about it. To be fair it can also impact how an insurance policy is interpreted, because if a faulty SPD creates ambiguity then sometimes — sometimes — that ambiguity will be resolved in favor of the claimant.
OK so far. But say an insurance company does indeed plainly exclude investigational treatments, which admittedly it did in the Bast case. This is an important distinction: the policy does not say “we don’t cover treatment x”; it says “we don’t cover treatments which are ‘investigational.’” Your doctor says treatment x is not investigational, and my patient needs it; the insurance company says it is too investigational and therefore we will not pay for it.
In the Bast case that was (or should have been) the issue: was Prudential correct that the treatment in question was indeed “investigational”? The problem, IMO, is that under the law it didn’t matter, because even if Prudential was wrong, and Ms. Bast died as a result, there was utterly no consequence.
And as you can probably imagine, in practice “investigational” = expensive.
All too often the practical result is that the insurance company, which of course has a vested interest, gets to decide when it will honor its contractual obligations and when it won’t. The contract is to that extent illusory — the insurance company can breach or not breach, at its whim, in good faith or otherwise, and with no meaningful consequences.
Or as James Madison said in Federalist 10:
“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”
Since the employers are the ones that provide the insurance the money, there is no consequence because there is no competition. Unless whole groups of employers pull their funds from the insurance plan, there is no negative consequence to bad treatment.
What you see as a lack of consequence is actually the result of a lack of competitive beds and balances. The consequences are there, but they are mitigated by a lack of choice on the part of individuals.
>>First, the “death panels” got jettisoned…>>
Not exactly, imo. I don’t think the end of life counseling was really an issue in the sense of being a death panel. To me the death panel is still in the offing – and that’s the IMAC board which is supposed to be appointed by the President to make decisions on the appropriateness of treatment based on “quality of life years” the person has left. The board, I repeat, is appointed by the President. Not by congress, not subject to approval by congress, not subject to removal by any legal action by any citizen or any legal action. And since the numbers I’ve read indicate that the cost of the last six months of life generally consume about 70-80% of the cost of health care, and since the goal of the President – and his board – is to reduce the cost of health care expense in order to spread the same dollars over more people, then it’s entirely reasonable to presume that the reduction in cost of health care will be achieved by reducing the 70-80% figure. That can only be done by denying some of the end of life care.
The IMAC board isn’t mentioned very much. It should be.
The Demoncrats are trying to use a bait and switch tactic. They’ll say that “Sarah Palin’s Death Panels” have been removed, but in reality Palin didn’t call those death panels, Obama did. So Obama removed it and is now trying to pretend Palin no longer has a case to make.
It’s called deception, people. Don’t be fooled simply because the Demoncrats are performing a tactical withdrawal. They aren’t beaten. Not by half.
Ymarsakar, I don’t know where the term “death panels” originated — I’d appreciate any traceback you could point me to — but I do know that Gov. Palin used the term on her Facebook posting of 7 August. [Full disclosure: I am generally favorable toward Gov. Palin, and have been since sometime winter 07-08, when first she came to my attention.]
Ymarsakar said:
“Since the employers are the ones that provide the insurance the money, there is no consequence because there is no competition. Unless whole groups of employers pull their funds from the insurance plan, there is no negative consequence to bad treatment.”
I am not sure what your meaning is here, and I suspect we are talking at cross-purposes. There is competition in this field, since landing a large group account can generate very significant premium dollars for an insurance company. Therefore the insurers compete with each other vigorously to land these accounts. The problem with your theory, if I am understanding your point, is more that when the bad treatment occurs the employer is quite often not even aware of it, because the recipient of the bad treatment is a sick or disabled employee who is no longer even on the employer’s books. There is also a more generalized problem — employers purchase group insurance based primarily on price and to some extent on terms of coverage, but not so much based on the insurer’s actual track record of faithful performance of those terms. The bad behavior which might ruin a former employee’s life is not of much concern to the employer.
Also, because the law imposes no meaningful consequences for an insurer’s breach of contract, the behavior of the entire industry is affected. So the competing insurance companies all have the same incentives to breach their contracts. In that sense the problem is systemic, rendering it very difficult to discriminate among competing insurers. IOW they all cheat because the law gives them all the same incentive to cheat.
Not sure that is responsive to your point because I am not sure I successfully assimilated it.
There is competition in this field, since landing a large group account can generate very significant premium dollars for an insurance company.
Large groups are like unions. They don’t move as individuals, and thus aren’t particularly sensitive to on the ground changes from high up top the hierarchy. Competition, in its truest form, is an adaptation to the reality on the ground.
That is hindered by pie in the sky potentates that aren’t affected by changing conditions. Thus, competition is not just ‘having other people in the game’. There are qualitative differences based upon an organization’s rules and hierarchy.
In this situation, things are organized based upon deals made at higher levels concerning care given to those at a lower level. This is micromanagement, and micromanagement does not lead to competition. It simply leads to a semi-monopoly.
Therefore the insurers compete with each other vigorously to land these accounts.
They take into account the interests and motives of the employer. If you are satisfied with that, you will have to accept that the care given is irrelevant unless a business is specifically competing for workers based upon a better health care package. That doesn’t cover enough people, however, not even close. It just splits the pie to the people with good jobs and good employers. Again, a semi-monopoly. Not because services cannot be expanded at a good cost, but because there’s no market for it due to on high controls. And there’s no market because people’s money are being sucked up for political reasons. Frankly, if they just gave back a person’s taxes for their entire life, it would resolve both the issue of justice and of health care, for the predominant majority of the human species, let alone Americans. A system that doesn’t payout at least equal to what a person pays in, is just a pyramid scheme, like Social Security. No amount of laws will make that fair or equitable or even workable.
The problem with your theory, if I am understanding your point, is more that when the bad treatment occurs the employer is quite often not even aware of it
Why would someone occupying a higher threshold of observation perceive smaller problems occurring beneath their level of observational threshold? The eagle can see the rat, but not the lice on the rats. It is not a problem with my view, it is part of my view on the ongoing situation.
The bad behavior which might ruin a former employee’s life is not of much concern to the employer.
As mentioned before, this is because the competition is not at a lower level. The market is not providing healthcare to individuals. It’s not about providing insurance, even, to individuals. Insurance is not the problem.
Also, because the law imposes no meaningful consequences for an insurer’s breach of contract
There is no breach of contract. The contract was between the employer and the insurance. Not between you and the insurance. That’s why the health care insurances compete for businesses, not your business. That’s what is wrong with the system as it exists.
No amount of on high micromanagement from the federal law bureaus will change anything. Attempting to fix a problem that micromanagement caused with more micromanagement is counter-productive.
There is always ‘meaningful consequences’ for breach of contract. But first you have to have a contract between two parties, direct parties. And not just some thousand affiliated groups.
A fed sitting on high looking down below will no more have the perception to perceive problems nor the wisdom to know what the fix is than business employers would.
IOW they all cheat because the law gives them all the same incentive to cheat.
I believe that is wrong (totally wrong even), of course. The law was doing nothing except what it was supposed to be doing. With no market, there’s no reason for insurance providers to provide individuals with a direct contractual service. The lack of care is due to a lack of market competition, not due to contractual law.
but I do know that Gov. Palin used the term on her Facebook posting of 7 August.
She had raised the issue of Emanuel and his brother as being in high positions of power furthering the cause of eugenics. Combined with a law that is designed to get rid of costs, meaning old people taking up medical resources, this creates a Death Panel where Presidential Czars decide who is or is not worthy of valuable medical resources.
Obama replied that the end of life advisory councils are so and so forth, which was then correlated with Congress dropping that provision in the bill and Obama acting like he won, again.
Palin’s response noted, again, that death panels have not been addressed: just shuffled under the table.
If you want the actual text involved, you will have to do some work. Scroll down, you may have to use the archives on the bottom right for this month
That blog should have post pertaining to each instance of Palin’s facebook tet a tet with Barack.
Sarah Palin coined death panel based off of Emmanuel and company’s policies and philosophies.
About those “death panels”…
http://www.americanthinker.com/2009/08/death_panel_is_not_in_the_bill.html
Ymarsakar said:
“There is no breach of contract. The contract was between the employer and the insurance. Not between you and the insurance.”
Well, from a legal perspective there are contractual duties that run from the insurance company to the individual, based on third-party-beneficiary principles if nothing else.
What I still can’t figure out is: do you think it is a good thing that insurance companies have immunity from legal liability for fraud (I realize this question assumes the truth of my underlying assertion, but to be clear I hereby assert it is true insofar as employment-based coverage is concerned). Or do you think it doesn’t matter because the only incentive that could possibly count is the competition-based one you posit, such that legal consequences are of no moment? Or something else?
Richard,
I see you accuse insurance companies of fraud by dening claims by insured persons, as opposed to any ambiguity as to what is covered and what is not.
Since we seem to agree that the Bast case is not an example of fraud, could you give me an example of what you mean with an actual case?
Thanks
What I still can’t figure out is: do you think it is a good thing that insurance companies have immunity from legal liability for fraud
And why do you think they are legal from contractual fraud violations?
Immune, rather than legal.
Brian E said:
“Richard,
I see you accuse insurance companies of fraud by dening claims by insured persons, as opposed to any ambiguity as to what is covered and what is not.
Since we seem to agree that the Bast case is not an example of fraud, could you give me an example of what you mean with an actual case?”
I do not for one minute think every claim denial is fraud. But I think some of them are, and I think there ought to be consequences for that.
And I am afraid we do not agree about the Bast case, at least not necessarily, because the Basts never got the chance to lose their claim, because they never got to even make their claim. But an example, based on the Bast scenario, would be this: an insurance company establishes a committee ostensibly to consider emerging treatments and deliberate in order to render an opinion whether they are “investigational” or not. In fact the committee is a ruse; the books are cooked and everyone knows full well that the more expensive treatments will be classified as “investigational” in order to provide a pretext for the denial of more expensive claims. The insurance company doesn’t know and doesn’t care whether a treatment really should be considered “investigational,” it just knows it doesn’t want to pay for it and now it can cite to the deliberations of this sham committee in order to shore up its claim denial. That would be fraudulent.
My primary experience is with disability claims, not health insurance claims, although the same legal principles apply insofar as ERISA is concerned. We see insurers consult with the same doctors over and over to review claims, because the insurer knows it can count on certain doctors to render an opinion that the claimant is not disabled, providing a predicate for claim denial. The insurer’s designated doctor will review a medical record, never examine nor even speak to the claimant, never speak to the claimant’s own doctors, who are unanimous that the claimant is disabled, and render an opinion that the claimant is not disabled. In doing so the insurance company doctor will ignore pertinent evidence, take things blatantly out of context, and base an opinion on standards which are nowhere to be found in the insurance policy (a favorite is to say there’s no “objective” evidence of, say, the magnitude of someone’s pain, when pain is not susceptible to “objective” measurement in the first place and the insurance policy nowhere requires “objective” evidence for a claim to be payable). And guess which opinion the insurer considers most persuasive? The one opinion that will allow it to deny a claim. The result is a foregone conclusion and has been all along. That is fraud. And ERISA provides no remedy.
Ymarsakar said:
“And why do you think they are [immune] from contractual fraud violations?”
Because of ERISA. Take a look at my blawg:
http://problemiserisa.blogspot.com/2009/08/first-post-welcome-erisa-is-employee.html
and then to make sure I am not being fraudulent myself, do some googling. You will see that, in the case of employment-based coverage, there is simply no meaningful consequence for an insurer’s bad behavior, up to and including fraud.
Here’s an interesting case involving Blue Shield/Blue Cross, sued for denying an investigative procedure. The court ordered BS/BC to cover the procedure.
http://www.harp.org/kekis.txt
In this case, the policy stated that “investigational/experimental” procedures are excluded, but the company didn’t follow the policy definition in rejecting the claim.
I’m not a lawyer, but it looks like the court had to squint to rule for the insured, but I suspect that would not be uncommon in these cases.
So patients do sue companies for denying coverage and it appears the court didn’t give the insurance company any special consideration.
I wonder if she survived the procedure? In this procedue, bone marrow is extracted from the patient, who is given massive doses of radiation, which also destroys the bone marrow. The extracted bone marrow is then replaced in the patient.
Apparently Mrs. Kekis died March 7, 1994. The date on the case ordering the procedure was March 12, 1993 and she was already enrolled in the program at the time so I assume she had the procedure.
BrianE said:
“So patients do sue companies for denying coverage and it appears the court didn’t give the insurance company any special consideration.”
Never said you couldn’t sue the insurance company. I said when you do the remedies available if you win are unduly stingy, and certainly not meaningful to the insurer, and the rules are unduly stacked against you.
In the case you cited, for example, note this passage:
“Ms. Kekis’s task is made significantly more difficult by the terms of the BC/BS policy, which BC/BS undoubtedly drafted with an eye toward preventing lawsuits like the present. The exclusion clause upon which BC/BS relies gives BC/BS broad discretion to determine whether a proposed treatment is excluded from coverage. As stated above, the clause excludes from coverage any service or procedure BC/BS does not recognize as accepted medical practice, as BC/BS determines has no proven medical value. Def. exh. ‘A’ P 18. Since the policy unambiguously allows BC/BS– not the court– to determine what is ‘accepted medical practice’ and whether a practice has no proven medical value,’ the court cannot disturb BC/BS’s
decision to exclude coverage under this provision unless the decision was arbitrary and capricious.”
What this means essentially is that had Ms. Kekis merely proven Blue Cross’ decision was incorrect, she would have lost. She had to go beyond that to prove Blue Cross’ decision was an “arbitrary and capricious” – i.e. that exceeded the bounds of reason. And that’s what she demonstrated, at least sufficiently to get a preliminary injunction. So the judge, far from having to “squint” to rule in Ms. Kekis’ favor, had to find Blue Cross was not only wrong but unreasonably wrong. I don’t know about you, but I would think that if you’re in court and you can win even if you are wrong that’s pretty special consideration. And all she got here was an order that Blue Cross cover the procedure. And that, of course, took some time to do. I don’t know what the final outcome was either but if the delay caused her death, Ms. Kekis’ family would end up in the same boat as Ms. Bast’s family – no remedy for her wrongful death.
Bone marrow transplant is not any longer considered to be the treatment of choice, as I recall. But it was at the time, and the point again is not so much how any one particular dispute turns out. The point is that the way the law is written, insurers get to make the decision, and they have obvious conflicts of interest in doing so. And claimants, and judges, can’t overturn those conflicted decisions unless it was not just wrong but “unreasonably” wrong. And even when the claimant wins there is no meaningful consequence for an insurer’s bad behavior.
Bottom line – in these sorts of cases the claimant never gets a neutral disinterested party to make an impartial decision on their claim. The insurer makes the initial call, and they are decidedly not disinterested. And then in court the judge is required to have a thumb on the scale in the insurer’s favor (see “arbitrary and capricious” above), so the judge is not – is not allowed to be – impartial.
Hey – how do you do those big quotation mark things anyway?
The problem with all of this is that people seeking these treatments are guinea pigs for procedures that aren’t proven to be effective. The university or hospital uses these patients to find out if they work or not.
This puts the insurance company in a difficult situation.
My brother-in-law has a terminal disease similar to leukemia. He participated in an experimental procedure at the University of Washington (which the insurance company agreed to pay for). The procedure almost killed him and he suffered mini-strokes for about a year after the treatment.
He’s regained some cognitive ablity, but has difficulty doing much more than basic life functions. (He doesn’t drive anymore).
No one seems to know how long he has to live, but he does receive blood transfusions semi-weekly to replace his red blood cells.
My point is that people who already know they’re going to die are very willing to seek these treatments, most of which don’t prove to be medically effective. I certainly have sympathy for the patients seeking these treatments, since they feel they have nothing to lose.
Should it be the insurance companies obligation to pay for these types of treatments (whose costs are passed on to all the insured) and where do you draw the line between treatments that offer some hope and those that don’t?
One of my best friends died of prostrate cancer 10 years ago. He had all the known treatments, which didn’t stop the progression. He chose to go to Puerto Rico for a treatment not approved in the US, but a treatment that had had some success in Europe. His insurance company refused to pay for the treatment, so he paid for it himself (at the time it was between $25-50K). Needless to say, he died within six months anyway.
I’m not a big fan of these types of treatments. Should there be some threshold of success before the insurance company is obligated to cover them? Should the insurance company have the right to exclude these treatments?
“Hey – how do you do those big quotation mark things anyway?”
Right above the text block is an arrow. Click on that and you’ll get a bunch of editing options. The box disappears once you’ve previewed the text though.
I would much prefer some sort of arbitration panel to deal with these issues, rather than the courts.
It would allow these cases to be decided quicker, and at less cost.
One more and I think I’ll let this one go. I appreciate the interaction and interest, BrianE.
Hey, it works!
First, I am sorry to hear about your brother-in-law. Hope he’s as OK as circumstances allow.
Should it be the insurance company’s obligation? If the policy covers the procedure it sure should be. If the policy doesn’t cover it then no.
The problem is that we are leaving it up to the insurance company, with, IMO, patently insufficient judicial oversight, to decide for itself what its own policy covers. That is like entering into a contract which provides one party will perform its obligations at its own unfettered discretion. That’s no contract at all – it’s illusory.
And just like any other party to a lawsuit, if the insurer is wrong – just wrong – it should lose. Mind you just being wrong is just a breach of contract, not fraud, bad faith etc. I agree you have to prove more than just an innocent error to establish those things. But under ERISA you can’t even get a breach of contract win if the insurer is wrong, you have to prove this “arbitrary and capricious” stuff, as if some claims functionary at Blue Shield was Oliver Wendell Holmes. And you cannot – no matter how badly the insurer may have acted – be made whole. We are not even talking about punitive damages, or an “emotional distress” recovery, just made whole.
An example – I had a client who had her disability claim denied, wrongfully, and as a result lost her home and was forced into bankruptcy, among other things. Not only could I not recover anything for her for the emotional distress from these events (as you might understand her life was basically ruined), I couldn’t even make her whole for the out-of-pocket expense she had to incur to pay a bankruptcy lawyer, or for the vastly increased interest she will have to pay for the foreseeable because her credit rating has been trashed. She’s just SOL on that stuff thanks to ERISA. I believe that’s unfair.
I leave it to my admittedly polemic blawg:
http://problemiserisa.blogspot.com/
to do the rest of talking for me here. Many thanks for the conversation.
I said when you do the remedies available if you win are unduly stingy, and certainly not meaningful to the insurer, and the rules are unduly stacked against you.
The key term is contractual violations of a fraudulent nature. If there is no fraud or attempt to defraud, there is no contract violation and thus no need for the law to intercede. Your demand that the law should do so, in the absence of such violations, is itself invalid.
He participated in an experimental procedure at the University of Washington (which the insurance company agreed to pay for).
Any experiment that wants you to pay for it is in itself not well-funded.
an insurance company establishes a committee ostensibly to consider emerging treatments and deliberate in order to render an opinion whether they are “investigational” or not.
If people don’t like that clause in the contract, cancel the contract and get another one.
Of course, if there is no competition, individuals don’t have that power. Somebody else decides for them whether to accept or not.
Ymarsakar said:
Well if that is a normative statement then obviously all I can say is I disagree with you. But if it is intended to be descriptive it is just incorrect. A breach of contract is a breach of contract, fraudulent intent aside. You do not need an “attempt to defraud” in order to have a contract breached — just a failure to perform, regardless of the intent behind it. Of course that’s not how it works in ERISAworld but that’s how it is everywhere else.
To perhaps oversimplify, under state law (which ERISA cancels out), if an insurer fails to perform — without any inquiry into “intent” — you can get damages for a simple breach of contract. If beyond that you prove bad faith or fraudulent intent you can recover additionally for, well, bad faith or fraud.
But why would a court not just enforce a contract, so if a party fails to perform when it should have, it has to make the other party whole? That’s just the rule of law which even the most ardent free market advocates would say is a critical prerequisite to a proper market economy.
Bookworm,
Although I don’t think ObamaCare is a good idea, I actually agree with mandating some basic coverage for everybody, not unlike the car insurance. Why? Because people choosing not to buy the health insurance make this choice without any real consequences. Nobody is denied health care. Thus, if those people get into a car accident, for example, they still get treated. And, if later they can’t pay the bill, the cost is passed to those who buy insurance. You could argue that they are free to choose not to have insurance if they were left on the side of the road. Because then they would have taken their chances and lost their gamble. But you can’t really do this in a civilized society. Thus, those young healthy people choosing not to buy health insurance are actually gaming the system.
By the way, you don’t really have to buy car insurance. Instead, you can deposit a rather large amount with DMV. I would not have a problem with the same requirement for health insurance. You are young and healthy? Deposit 100K with the hospital near you, and you don’t have to buy health insurance. Or a tax should levied against those people in order to pay for their care, should something happen to them.
Eric.
eric-odessit
No auto insurance deposit in Pa. We don’t even get a nickel back on bottles.
eric #52:
> Nobody is denied health care. Thus, if those people get into a car accident, for example, they still get treated. And, if later they can’t pay the bill, the cost is passed to those who buy insurance.
Well, there’s a genuine health reform right there. The cost should not
be passed on to those who buy insurance. What could be simpler? Send the collection agencies after the deadbeat. Garnish the wages. Etc, etc. Avoiding all that in case of a catastrophically expensive problem is a good reason to buy insurance.
But then I am a heartless, near-evil reprobate. I believe in a very limited safety net to catch people lost in a free-fall slide to the bottom. I’ll go that far – but only so long as there is government revenue to pay for it. If the government cannot pay for it, even that should become unavailable until we right our economic ship. (And, ahem, that approach would ensure that everyone is rooting for our entire nation’s self-interest, rather than believing that they can simply loot the more fortunate, and loot them even worse during bad economic times.)
BrianE #42: I’ve known people who had that procedure and, sadly, those I knew suffered greatly and then died. That’s an “N”of only two, but I know that the risks were enormous when they had the procedure.
BW, you weren’t having a conversation. You were speaking to a doorknob. His final response says it all.
What a noodle-head he is.
>>I actually agree with mandating some basic coverage for everybody, not unlike the car insurance.>>
Intriguing idea. How are you going to go about that?
I mean – with car insurance, you can’t get your car re-registered if you don’t have proof of insurance. Or if you’re pulled over, you suffer various penalties depending on the state if you don’t have proof of insurance. Nevertheless, you can take your chances with an unregistered car, you can cancel your insurance as soon as you have your registration renewed, and you can – with luck – avoid being stopped by the police and having to prove your insurance (even then, you might have a card of proof in your car). So what are you going to do about people? require each person to carry a health insurance card on their person, and permit the police to do sweeps to ensure that everybody has one? National health ID card? what do you do about illegals? homeless people? people in jails? Do people in jails get a pass because they’re covered by the prison system?
Just walk into any doctor or emergency room for health care and the government gets the bill? That might save the hospitals that are going under due to non-payment…
How?
Suek,
I would require a copy of the health insurance attached to the tax return, along with the W2. If there is no insurance, extra tax would be charged to cover the hospital bill, should something happen. Of course, just like with the car insurance, there will be some people who manage to cheat the system. But there won’t be very many of them. I bet majority of those who choose not to buy health insurance still buy car insurance. They are basically law-abiding people who simply see nothing wrong with passing their hospital bills to the rest of us. Or, they simply hope to be able to pay. If the law requires, they will buy health insurance.
Eric.
It matters not who says it. If you don’t want to get it, you don’t. Over and out.
Dead and dying.
You do not need an “attempt to defraud” in order to have a contract breached — just a failure to perform, regardless of the intent behind it.
So it doesn’t matter what contract law stipulates to you nor does it matter what’s actually in the contract. Once you have interpreted that there is a breach, no matter what’s actually in the contract, you believe it is a breach of contract.
It’s not a breach of contract. It’s a breach of your own personal wishes.
Eric #58:
> I would require a copy of the health insurance attached to the tax return, along with the W2.
Eric,
I think you would solve this particular problem by doing that. But I’d like you to consider a principle here: If you pass a law that requires this kind of a solution, what other potential laws have you just said to be worthy as well?
To be effective, you’d have to attach proof of health insurance for the entire year, not just currently. Else, you’ll have people buying health insurance for a brief period of time, just to submit their tax return. Can’t have that! This is a very heavy handed solution to the problem, and it must therefore be a strong solution – proof year-round of health insurance.
Attaching proof of health insurance to your IRS tax return opens the door to a whole host of abusive practices, I think. By saying it is acceptable – and good – to do that for health insurance means you would find it acceptable for any other similar solution to a governing problem.
Too many uninsured motorists on the road? Well, clearly requiring one yearly check on proof of auto insurance, and having the police check when they pull you over (ick to that – that just makes them an enforcer arm extension of insurance companies, does it not?)… the clear solution will be to require full-year proof of auto insurance to the government when you file your tax return. After all, that’s the goal, isn’t it? Providing year-round PROOF to the government that you’ve been a good little boy or girl?
The more I think about it and write about, the more I don’t want to be attaching anything to my yearly tax return that proves I’ve been good. The yearly tax return is irritating and maddening enough as it is.
>>I would require a copy of the health insurance attached to the tax return, along with the W2.>>
Many people – maybe even most – people who lack health insurance don’t file tax returns. What about them?
>> If there is no insurance, extra tax would be charged to cover the hospital bill, should something happen.>>
That’s already in the bill. If you don’t have “approved” health insurance, you will be charged 2% of your income on your tax bill. It’s also in the bill that the Feds will have direct access to your bank accounts. I assume it’s also in the bill that if you have large medical costs, the Feds will have a first claim on your estate. At least, that’s true at the present with Medicaid.
How can you charge people who don’t have anything? They used to have debtors jail, but that’s specifically prohibited by the Constitution – not that that means anything to the present administration.
For clarification of meaning, in the ERISA case, there is no attempt to defraud nor is there fraud at work.
But that example is used as an example of ‘contract breach’ in which the law provides no punishment for. That’s a libel against the law, for which contract law has very specific provisions in this country. In point of fact, this country has one of the strongest contract laws around. Look at Hugo Chavez and the nationalization of White Property in Zimbabwe, formerly Rhodesia, for an example of another system. With its concurrent economic stupidity, of course. People don’t create a vibrant economy without a strong contractual law protection.
But why would a court not just enforce a contract, so if a party fails to perform when it should have, it has to make the other party whole?
Tort lawyers aren’t part of the rule of law. They are the ones looting the law for personal gain. Providing more power to tort lawyers and lawsuits does not make insurance provide better healthcare, as they are forced to pain Dane Geld every time a John Edwards comes up for air from his mud hole, with the concomitant effect that what the insurance pays out in damages is looted from the contributions of individuals in need of health coverage.
Insurances aren’t here to make people whole, any more than car insurance is here to guarantee that you get a new car every time you blow up your last one.
BrianE said:
I would much prefer some sort of arbitration panel to deal with these issues, rather than the courts.
It would allow these cases to be decided quicker, and at less cost.
You will be pleased to know that ERISA, as interpreted by the Supremes, does allow states to provide for these types of alternative approaches, with the proviso of course that in no event may a meaningful remedy be available.
Ymarsakar said:
So it doesn’t matter what contract law stipulates to you nor does it matter what’s actually in the contract. Once you have interpreted that there is a breach, no matter what’s actually in the contract, you believe it is a breach of contract.
It’s not a breach of contract. It’s a breach of your own personal wishes.
I apologize for not making myself clear. Proving a breach of contract means proving a material term of the contract has not been performed. What’s in the contract is critical to this inquiry of course. Nowhere have I meant to suggest otherwise. I do not “interpret that there has been a breach” based on my own personal wishes but by comparing what the terms of the contract requires against what the party did or did not do to perform its obligations according to those terms.
But that example is used as an example of ‘contract breach’ in which the law provides no punishment for. That’s a libel against the law, for which contract law has very specific provisions in this country. In point of fact, this country has one of the strongest contract laws around.
You are making my point for me. ERISA eradicates contract law in cases of employment-based insurance coverage. If “one of the strongest contract laws around” applied in that circumstance that would answer every single one of my objections. But they don’t – they are preempted.
BTW, a conceptual point which may be material to the discussion. Contract law is not intended to “punish” anyone; the law attaches no moral opprobrium to a contract breach. It attempts to achieve not punishment but compensation – to put the aggrieved party in the same position it would be if the contract had been performed according to its terms. If you move beyond simple breach of contract to bad faith or fraud then that changes. My present objection is that ERISA does not allow for even simple breach of contract compensation. We are miles away from even thinking about “punishment.”
Insurances aren’t here to make people whole, any more than car insurance is here to guarantee that you get a new car every time you blow up your last one.
Again I apologize for failing to make myself clear. By “made whole” I mean put in the same position, insofar as measures available to the law can do so, as if the insurance contract had been performed according to its terms, and that is all – and my objection is that ERISA forecloses even that level of relief. I do not mean “made whole” in some more cosmic sense.
I sense we are having trouble understanding each other. Let me ask you this then: what do you believe to be the proper role of the judiciary in the enforcement of private contracts? What recourse does (should) a party have if the other party fails to perform its contractual obligations?
[...] Bookworm Room – The view from the other side re health care [...]
Watcher’s Council nominations…
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Submitted 08/20/09…
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[...] took the title of winning council entry with a recounting of a conversation she had with a physician in favor of Obama Care. The important [...]
Council speak 08/27/09…
This week’s Watcher’s council winners (and runners up) are:First place with 2 1/3 points! – Bookworm Room – The view from the other side re health careSecond place with 1 2/3 points – Mere Rhetoric – Human Rights Watch Earns Their Saudi Pay, Publishe…
[...] are the Watcher’s Council winners for last week. The winner in the Council post category was Bookworm Room’s “The view from the other side re health care”, for which I voted. Second place honors went to [...]
[...] Council: Bookworm Room – The view from the other side re health care [...]