[ Monday, September 29, 2003 ]
EMTALA update:
As you might know, the rules relating to the Emergency Medical Treatment and Active Labor Act (EMTALA) were recently revised. EMTALA generally requires hospital emergency rooms to stabilize a patient who presents at the ER either in active labor or with an emergent medical condition before sending the patient elsewhere. It is generally designed to prevent "patient dumping," where an emergency room sends someone away to a different hospital, usually because the patient won't be able to pay for their treatment.
HealthLeaders has a pretty good article outlining the recent changes. You can view it online
here.
Jeff [11:19 AM]
[ Friday, September 26, 2003 ]
Yesterday, CMS held a call-in town hall teleconference where they spoke about the current state of the HIPAA universe. I was out part of the day, unfortunately, and working on a financing for a surgery center, so I didn't get to listen in. But the inestimable
Alan S. Goldberg was, and posted the following to the American Health Lawyers Association Health Information Technology (HIT) listserv:
"CMS: Trying to encourage compliance instead of primarily processing complaints. Not likely that plans implementing contingency plans will file complaints vs. providers who cannot do TCS; instead, plans likely will give a couple of months notice before cut off and thereupon only compliant claims to be accepted. Plans implementing a contingency need to do provider outreach and push testing and be in good faith with contingency. Will continue to meet with major groups representing health plans and providers; will work with them regarding working together. Payors are not required to have contingency plans; if partners are ready, might not have one. Health plans must be ready to accept compliant transactions on Oct. 16, 2003. Providers can file complaints vs. plans that will not accept TCS on Oct. 16, 2003 (eg., such as if provider can only use TCS and can't use something else). If provider bears extra costs to use older format because plan is not ready, CMS cannot require non-compliant plans to reimburse providers for out of pocket costs of postponding TCS. When CMS is about ready to turn off contingency, CMS will provide ample advance notice. Wed. Oct. 8, 2003 is next Roundtable. 2,600 folks listening today ."
Jeff [9:06 AM]
[ Tuesday, September 23, 2003 ]
Hold off on the Train Wreck! According to Modern Healthcare:
Concluding that the healthcare industry won't be ready in time, the CMS agreed to accept nonstandard Medicare claims after Oct. 16, the deadline for adhering to insurance-related electronic standards mandated by the Health Insurance Portability and Accountability Act. The agency said that under its HIPAA contingency plan it will continue to accept and process claims in the hundreds of formats now in use and will regularly reassess providers' readiness for the new standards to determine how long the contingency plan should remain in place. The CMS said it decided to implement the contingency plan after a review of Medicare fiscal intermediaries showed "unacceptably low numbers of compliant claims." Implementing the plan "moves us toward the dual goals of achieving HIPAA compliance while not disrupting providers' cash flow and operations," CMS Administrator Thomas Scully said in a written statement.
You can see the CMS official statement
here.
Jeff [4:06 PM]
[ Thursday, September 18, 2003 ]
Well, now
here's something that will be very useful: it's a compilation of the Privacy, Security, and enforcement rules for HIPAA, all wrapped up in one simple pdf format bundle. It's not official, but it is a lot easier than looking at the regulations themselves. Why? Because each time a new or amended set of regulations comes out, they don't republish the whole set, but just say, "delete section (a)(i)(E)(4) and replace it with '*****'." So, when you want to read through the regulations, you have to have all of them open on your desk and flip back and forth. This way, it's a much easier read.
It is put out by OCR, so it should be pretty accurate.
Jeff [4:43 PM]
[ Wednesday, September 17, 2003 ]
Here's a scary story about wi-fi, from Clyde Hewitt of Phoenix Health System's HIPAAnotes:
"In early September, an individual was arraigned in Raleigh for hacking into a physician office's computer system and accessing electronic protected health information (ePHI). After gathering the information, he contacted patients and insurance companies to warn them that their ePHI wasn't safe. (See
story.)
"The hacker did not need any tools beyond a wireless card and his personal computer because the wireless network was unsecured. In the past, hackers attacked modems by 'war dialing' and looking for the familiar screech of the modem. Once they found a modem, they had to guess a username and password. Now, hackers practice "war driving" where they drive around searching for those Wireless Access Points (WAPs). Many of the WAPs today broadcast 800 feet in all directions. Other offices, and even those sitting in the parking lot, will likely be able to see the WAP and gain access to the unprotected network.
"Rather than guessing at usernames and passwords, it only takes some tools that are readily available on the Internet to sniff usernames and passwords once a wireless network is detected. In other instances, computers behind the corporate firewall may have shared drives that are inviting to anyone on the network.
"With the proliferation of cheap wireless devices, many under $100, small providers may be tempted to install wireless networks in their office rather than pay the average of $75 to $100 per network drop just to install the Ethernet cable. The typical setup is relatively simple and for those who have home broadband or DSL connections, relatively non-technical. This simplicity often leads medical practices to take the easy road and install wireless networks without considering security.
"Wireless is a cheap and highly efficient solution to wiring an office, but if sound security practices are not put into place, they are potential "sieves" ready to leak information to anyone with a wireless card. Today, it doesn’t even require a PC to do this since many PDAs also have wireless WiFi capabilities. The issue facing office managers and security officials is how to provide capability and still maintain security. The first line of defense is always policies. Because of the relatively cheap cost, end users may be tempted to bypass the information technology staff and install their own wireless network. Policies and procedures must be put in place to prohibit this behavior and to take serious action if an unauthorized wireless network is installed. With very few exceptions, an unsecured wireless network has no place in the healthcare environment. Nearly all of the reputable vendors provide the ability to encrypt the transmission between the WAP and the workstation. These encryption algorithms are adequate for the near future to prevent all but the professional spy from getting access in real time. That is, providing the installer took the time to set up a non-guessable algorithm.
"Setting up WAP encryption normally requires a 40-, 64-, or 128-bit encryption "key." This key is derived from a word or passphrase the installer chooses during the install process. If the passphrase is easily guessed, a hacker may not need to break the full 128-bit encryption key, but rather just the passphrase. Imagine an installer choosing "Downtown Pathology" as the passphrase which automatically generates the key C01CE3C8E7E433C23142F3B46B. The passphrase could certainly be guessed, but the key would require a professional and a lot of luck.
"Next, covered entities should consider other, more robust, forms of wireless access. Hardware and software solutions exist that require each wireless device to login through the WAP before gaining network access. Unauthorized users will see the WAP, but will not see the network behind it.
"Wireless networking is rapidly exploding in the healthcare environment. The benefits are great, especially with the clinical workstation environment. Security officials and IT staff need to build security into the project plan before the first piece of equipment is purchased. Without it, your organization may be the lead story on the six o-clock news."
Lesson of the story: if you're going wireless or using wi-fi, make sure you're protected
Jeff [1:24 PM]
A few checklists:
I’ve been catching up on some old HIPAA reading and have come across a handful of recent articles that had “checklists” or quick bullet point lists that I think could be pretty useful. In no particular order:
Five easy steps to identify HIPAA security risks (from Medical NewsWire):
1.
Do both risk assessment and risk analysis, but recognize the difference. An assessment looks for vulnerabilities in your system, but an analysis looks for risks. Think of these as the active and passive types of troubles you might have, the yin and yang of security trouble.
2.
Assign one person to be ultimately responsible for HIPAA security issues, but give them help, responsibility and authority.
3.
Scale your threat level: high, moderate, or low. Where you come out depends on your analysis and your assessment. Also, what you do about it will depend on the same type of scaling of your costs of fixing problems and the likelihood of damage.
4.
Keep a good documentary record of your efforts. Recordkeeping is half of HIPAA compliance. Plus, if you’re writing it down, it makes it more likely that you’ll do what you ought to.
5. Go little by little, but
get started now. It’s a journey of a thousand miles, but you can get there if you get started and keep going. Don’t be daunted.
Three steps to better Psychotherapy Notes (from Medical NewsWire):
As you know, if you keep psychotherapy notes, you don’t need to provide them to the patient; that is one of the few exceptions to the patient’s right to access to his or her medical records. But what if the patient demands the records? You might want to still provide them, to shut the patient up or keep him from suing you. Here are three steps you can take:
1. Don’t write down anything you don’t want the patient to see. How helpful are these notes anyway?
2. If the patient asks for the notes, find out what the patient really wants. You might be able to give the patient what he wants without having to give up your notes.
3. Offer a summary of your notes. The notes may be illegible or not easily understandable, so you might want to offer a summary so you can keep private what the patient really shouldn’t see.
If you deal with psychotherapy notes, keep in mind that you need patient authorization for most disclosures of psychotherapy notes.
Six steps to compliance with business associate requirements (also Medical NewsWire):
1. Know your business associates. Figure out what they are, then figure out who they are.
2. Know what the deadlines are.
3. Consider language and form. You may want more or less than what is in the form promulgated by HHS.
4. Set a timeframe for your BAs so they give you the information you need within the time frame you need to give it to someone else. For example, you must respond to certain access requests within 30 days; make sure your BA responds in 20 days.
5. Be prepared to pay more. Having to renegotiate, and putting more burdens on your BA, will make them want to charge you more. If you pay more, though, get your money’s worth: make them agree to an indemnification in exchange for a price hike.
6. Have an exit strategy. Always have other options for business associates if possible. It really helps your negotiating position.
Organizational Tips for safeguarding your PHI:
1. Bulletin boards: If they’re where patients can see them, make sure there’s no PHI there, or get patient authorizations. This includes baby picture boards.
2. Cleaning personnel: If you can, keep PHI out of sight of cleaning people. Better yet, put it in a locked cabinet.
3. Computer screens: Turn them so nobody can see them, or install screen filters to block the view of them.
4. Desks and countertops: Don’t keep PHI on top of desks or countertops if you can avoid it. If you can’t avoid it, turn the files upside down.
5. Disposal of paper with PHI: Shred it. If you don’t do it on site, make sure it is secure when transported to the shredder.
6. Printers and fax machines: Keep them in a secure area, where only appropriate staff can access them.
7. Schedules: Don’t place them in plain view if they have patient names or other PHI.
8. Sign-in lists: Don’t put anything more than patient name on a sign-in list Clearly don’t put the diagnosis on there, but also don’t put doctor name there.
9. Wall pockets: Use opaque wall chart-holders if available. If not, put the charts in the wall pocket so that the name and information is turned away from the view of anyone passing by.
10. Workforce Vigilance: all workforce members should watch out for unauthorized uses and disclosures, act to prevent them, and notify the security officer and privacy officer.
HIPAA Security and Privacy overlap areas (from HealthLeaders):
1. Appropriate and reasonable safeguards to protect PHI.
2. Mapping PHI dataflow, so you know where the information goes. You can’t do either privacy or security if you don’t know how the information travels.
3. Protecting the appropriate data. You don’t need to protect all data, just PHI (or ePHI) in a regular medical record. Limited Data Sets, de-identified information, and other methods of limiting information can limit what needs to be protected.
4. Access control: user based, context based, role based, or encryption. Role based access is required in the Privacy Rule, and the remainder may be part of the Security rule.
5. Business Associate Agreements.
6. Accountability: a specific person must be accountable for privacy and security (the privacy officer and the security officer).
7. Training and awareness of employees and others.
Three specific overlaps:
1. Privacy requires reasonable safeguards of PHI; Security requires a contingency plan, regular audits, information integrity, formal process for terminating an employee, control of media, control of physical entry into a CE’s office, proper functions and locations of workstations, change control procedures, incident response procedures, and the protection of PHI sent over the internet.
2. Privacy requires reasonable steps to enforce minimum necessary requirements; Security requires the development and implementation of security policies that enforce appropriate access controls and audit the use and disclosure of PHI.
3. Privacy says individuals have the right to an accounting of disclosures; Security requires the CE to develop policies and procedures to track and log the use and disclosure of PHI.
Just some food for thought.
Jeff [9:52 AM]
I wasn't there (I was giving a HIPAA speech myself in Plano, Texas), but
the Seventh Annual National HIPAA Summit occurred in Baltimore over the last few days. In addition to more information on the upcoming "train wreck" and contingency plans by CMS and others, one of the OCR advisors for HIPAA policy did speak and gave an update on what's happening on the complaint front.
To date, OCR has received more than 1800 complaints, at a rate of 75-100 per week. The most common complaints involve disclosure of PHI by a plan or provider, but many involve denial of access or improper safeguards, such as the calling out of patient names in pharmacies and waiting rooms or the use of unprotected sign-in sheets. Some of these complaints aren't really HIPAA violations, or might not be. Many complaints occur when the patient discovers that other people know about his or her medical condition, and where that information becomes "the talk" of the workplace.
About one-third of the complaints are dismissed by OCR for lack of jurisdiction. Many of these complaints are leveled against employers (where employees talk about an individual's medical condition) or are complaints that a provider refused to give information to a spouse or parent of a patient, instances where the provider could have provided the information but was not required to do so; in those cases, OCR will often let the provider know that it would have been OK to release the information, and that the provider is being overcautious.
OCR has not levied any civil fines yet, and they say that they are committed to making the enforcement process collaborative and cooperational. However,
OCR has forwarded some complaints on to the Department of Justice for criminal investigation. These are the really bad cases, they say; I would hope so. Especially since OCR jumped right over civil penalties and are heading straight for criminal liability.
Jeff [9:45 AM]
[ Wednesday, September 10, 2003 ]
Medicare may accept non-compliant claims after the October 16 deadline. At least that's how I read the answer to
this FAQ in the September 8 additions. Medicare is a "covered entity," so it must be HIPAA compliant. To be HIPAA compliant, it has to have a contingency plan. One part of CMS' contingency plan is dealing with fiscal intermediaries and others who may not be fully compliant by the deadline. While I don't think they had to do it, it really would not have been fair to punish the providers when it's the intermediary agency that fell down on the job. More signs of reasonableness. . . .
Jeff [10:03 AM]
[ Friday, September 05, 2003 ]
New FAQs, hot off the presses:
I should check more often and keep up with these, but the Office of Civil Rights has added some new "frequently asked questions" to their webpage. Go
here and look along the left side of the page. You can click on the FAQ header and get all of the FAQs or just search among them, or you can go a little further down the list and see what's new.
(Thanks to Ralph Glover in Michael Best & Friedrich's Chicago office for the tip)
Jeff [1:43 PM]
[ Thursday, September 04, 2003 ]
Other propositions:
I know, I know, I'm starting to stray far away from the excitement of HIPAA, but many years ago someone asked me what I thought about the various proposed amendments to the Texas Constitution and the various judges up for election; the friend asking figured that, since I'm a lawyer, I'll know who and what to vote for and against. I didn't, but I looked at them and gave my opinions. For a few years, I kept it up, then moved to Dallas and stopped doing it.
But, since I gave my opinion on Proposition 12, I thought I'd let you know about the rest.
Prop 1: Lets the Veterans Land Board use assets in their funds to provide old-age homes for veterans and pay for bonds. I recommend a
Yes vote.
Prop 2: Increases from 6 months to 2 years the right to "redeem" a mineral interest in your property if the mineral interest is sold to pay back taxes. If you are delinquent on your taxes, the taxing authority can sell the land or the mineral interests, and you have some time to buy back the land by paying back to the purchaser the purchase price. Right now, if your mineral rights are sold for back taxes, you have to refund the purchaser's money within six months to get the mineral interest back. This would extend that to 2 years. Seems fair to me. I'm voting
yes.
Prop. 3: Lets the legislature exempt from property taxes land owned by a religious organization and leased for use as a school or held for future expansion or construction of religious facilities. I'm voting
yes.
Prop. 4: Allows conservation and reclamation districts to develop parks. Sure, why not? Don't you like parks?
Yes.
Prop. 5: Allows the legislature to exempt travel trailers from property tax if they aren't rented or used for generating revenue (in other words, if you're living in it). I could go either way on this; why should trailer trash avoid property tax, just because their house has wheels? But if the legislature sees fit to exempt them from property taxes, they probably don't get too many breaks from the government anyway.
Undecided.
Prop 6: Permits refinancing a home-equity loan with a reverse mortgage. This issue is double-dipped with Prop 16: vote for either one and it wins. I'm torn on this: lenders will use this to give people money and they'll then lose their house. But if the people are stupid enough to do it, they do get the money up front, and it's their own right to fall on their own stupid faces. The free-marketeer in me says vote yes; the commiserator for the poor says no. Oops, when that happens, the free-marketer wins.
Yes.
Prop 7: Allows 6-person jury in district court misdemeanor trials.
Yes; you don't need 12 for a misdemeanor.
Prop 8: The legislature may let a person take office without an election if that person was the only one to qualify to stand in the election.
Absolutely.
Prop 9: Allows the State Board of Education to determine the amount to be distributed out of the Permanent School Fund into the Available School Fund. Think of the PSF as an endowment that can't be touched, and the ASF as the income running off of it that can be spent. Right now, if there are capital gains locked into the PSF, they can't be transferred to the ASF, so they can't be used. That is ultra-conservative and ultra-safe, from a cash management position, but the PSF will just grow and grow when some of the money should be used. There are some protections in place to keep the PSF from being raided, but it doesn't make sense to keep the capital gains locked up just because they are capital gains and not income. So, I'm voting
Yes.
Prop 10: Allows cities to donate surplus fire-fighting equipment to rural volunteer fire departments (you thought I was kidding about this?). Vote
Yes.
Prop 11: Allows the legislature to pass laws authorizing and governing the operation of wineries in dry areas. Free the Grapes!!
Yes.
Prop 12: I can't remember what this is about. Something about doctors vs. lawyers. Note that the lawyers' ads are substituting insurance executives for doctors (the lawyers know they lose a popularity contest with doctors, so they pick a straw man they know they can beat: the HMO guy). I'm voting
Yes.
Prop 13: Allows cities, counties, and college districts to freeze ad valorem taxes on the homes of the elderly and disabled (school districts are currently allowed to do this). Why shouldn't the elderly and disabled pay their fair share of taxes? I am adamantly opposed to discrimination against the old and infirm, so I'm also opposed to discrimination in favor of them (but I would give up my seat on the bus -- that is, if I ever rode a bus -- to an old or handicapped person). I'm voting
No.
Prop 14: Allows the Texas Department of Transportation to issue bonds or take short-term borrowing for transportation-related projects, which would be repaid from the state highway fund. I'm for it, and voting
Yes.
Prop 15: Makes it imposible for certain benefits under certain local public retirement systems to be reduced or revoked. This doesn't apply to the state-wide employees retirement fund, but to local funds; it only applies to disability or retirement and life insurance benefits, which don't fluctuate greatly in cost, and not to health insurance, which does. Also, a local area may exempt a local subdivision from this amendment by a vote at a local election. There are plenty of safeguards here, so I'm voting
Yes (although it's a weak yes).
Prop 16: Like Prop 6, but with more stuff (allows a home equity line of credit, loosens home equity lending law, etc.). I'm still a
Yes, but weakly.
Prop 17: Like Prop 13, but for school districts, and only adds disabled people to the current freeze for elderly people. I'm
against it too.
Prop 18: Just like 8: If you're the only qualified candidate for an office, we don't need to run up the costs of having an election.
Yes.
Prop 19: Repeals a section of the constitution that allows the legislature to set up a rural fire district and charge the residents a tax to run it. Should be a local decision.
Yes.
Prop 20: Allows the issuance of up to $250 million of general revenue bonds for military- or defense-related economic development project. I like bonds.
Yes.
Prop 21: Allows a current or retired public college or university faculty member to be paid for serving on the board of a water district. Huh? If you're a college professor AND on the water district board, you can't get paid for being on the water district board? That's just too stupid.
Yes.
Prop 22: If a public officer is called into active duty in the US armed forces, a temporary replacement officer can be appointed to fill the vacancy until Johnny comes marching home. Sure.
Yes.
Now, remember to vote early and vote often.
Jeff [6:36 PM]
More Prop 12:
If you're interested, and you're in Dallas tomorrow, there will be a pro-and-con discussion of this proposition, directed specifically at lawyers, tomorrow at the Belo Mansion in downtown Dallas (I'm cutting and pasting this out of an e-mail, if it looks jumbled):
The Dallas Democratic Forum
presents
PROPOSITION 12: WHO SHOULD DECIDE LAWSUIT DAMAGES?
JUDGES and JURIES
or
STATE LEGISLATORS
Featuring a distinguished panel representing:
Save Texas Courts
Texas Medical Association
Texans Against Prop. 12
Texans for Lawsuit Reform
Friday Buffet Luncheon, September 5, 2003
The Belo Mansion 2101 Ross Ave. (NW corner Ross & Pearl)
*** RSVP by Wednesday, 9/3 -- 214 855-7151
Register: 11:15, Buffet: 11:15-Noon, Program: 12 Noon
Pat/Sust. Members: Free, Members/Guests: $15:00
Parking: Beneath the Belo Mansion- $3.00 (Bring ticket inside to pay)
Belo Mansion is located three blocks north of Pearl Dart Station
Jeff [5:48 PM]
[ Wednesday, September 03, 2003 ]
EMTALA Update:
HHS has published new rules on EMTALA. According to the inestimable Susan Koch:
"While billed by CMS in its press release as clarifying hospital obligations to patients who request treatment for emergency medical conditions under EMTALA, the new rule effectively serves as a compilation of the outstanding interpretations of EMTALA. A few changes are also included in the final rule. For example, the definition of emergency department has been expanded to mean "any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus, that (1) is licensed by the State in which it is located under applicable State law as an emergency room or emergency department; (2) is held out to the public as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or (3) provides at least one-third of all of its outpatient visits for the examination or treatment of emergency medical conditions." As a result of expanding this definition, CMS has chosen to delete the EMTALA requirements applicable to off-campus provider-based departments and entities, which were proposed in 2000.
"The final rule also codifies the existing departmental interpretation of the controversial on-call requirements. Under the final rule, hospitals will continue to have discretion to develop their on-call lists in a way that best meets the needs of their patients, in accordance with the capability of the hospital and the availability of on-call physicians. The final rule also provides that physicians will be permitted to be on-call simultaneously at more than one hospital, and to schedule elective surgery or other medical procedures during on-call times. In addition, the final rule clarifies that EMTALA does not apply after a patient has been seen, screened, and admitted for inpatient hospital services, unless the admission is made in bad faith to avoid the EMTALA requirements, which is consistent with recent court cases. "
You can find the new EMTALA regs
here.
Jeff [2:23 PM]
Texas Proposition 12:
I was just at Medical City Hospital in Dallas and posted just above the elevator call buttons were stickers and posters imploring readers to vote for Proposition 12 on September 13.
There's a big special election coming up in Texas to amend various parts of the Texas Constitution. As with most state constitutions, the Texas Constitution is a huge amalgamation of junk, totally unlike the US constitution, which is actually pretty bare-bones. So, there are a lot of things that the legislature ought to be able to take care of just by passing legislation, but that they really need a constitutional amendment to accomplish. Some of these really deserve public imput, but many just don't: for example, if a county rural fire district wants to donate its old, unused fire equipment to a nonprofit organization or an impoverished Mexican fire district, they need constitutional approval
One of the big items in this year's batch of constitutional amendments if Proposition 12: it allows the legislature to establish a cap on non-economic damages in certain tort cases. Particularly, the state legislature has passed a law to establish a cap of $250,000 per doctor, up to $500,000 per all doctors, and $500,000 per hospital, up to an overall total of $750,000 on non-economic damages. Actual economic damages (lost wages, lost earning potential) are not capped, but pain and suffering, loss of consortium, etc. are capped. However, this law as passed may be unconstitutional unless the Proposition 12 constitutional amendment is passed.
This looks like a fight between doctors (for Prop 12) and trial lawyers (against Prop 12), and that's a pretty fair representation of what it is. On the lawyers' side, juries ought to be able to decide how much pain and suffering is worth. And people should have access to the courts to determine how much they have been damaged.
However, giving an economic award (money) for a non-economic injury (pain and suffering) is unnatural, and it is not beyond the role of government to place rules on how and when, and under what circumstances, those awards are made. I don't see how letting an elected legislature set those limits is improper; we already have a tort claims limit for governmental hospitals that is well below the Prop 12 limits, and if it is OK for the legislature to limit damages from public hospitals, why not from private ones?
Secondly, there is some merit in the physicians' and hospitals' argument that runaway jury awards are running them out of business. There were 20 med mal insurance companies in Texas just a few years ago; now, there are 4. If they are really making money hand over fist, and just want to protect their obscene profits at the expense of the working man, then how come so many of them have run off?
I've always said it is important that physicians make high salaries. If they don't, nobody will become a doctor. Why become a doctor, spend 4 years post-graduate racking up $100,000 in student loans, then spend 2-10 years doing residencies and fellowships making $35,000 a year and working 80 hours a week, when after all that you only earn what you could've earned right off the bat with your MBA? If you're smart enough to go to medical school, you're smart enough to get your MBA or go to law school. Do you want all the smartest kids working for dot-coms and law firms, and the second-tier brains working as your doctor? I don't. There's a recent
article in the Boston Globe on how medical school applications have steadily declined since 1997, but seem to be rebounding. This tracks with the dot-com boom, and bust: smart kids weren't going to medical school because there was better money elsewhere.
I'd have more sympathy for the lawyers' side of the argument if they weren't so over-the-top in their rhetoric. This isn't about "HMO lobbyists and special interests" writing the laws of the state (hey, aren't trial lawyers, especially those who contribute $250,000 apeice to the propoganda machine to fight Prop 12, "special interests"?), and it isn't about denying people the right to a trial by jury. And saying it is taking power away from the courts and giving it to lobbyists is pretty silly, given Texas courts' reputation (remember the 60 Minutes' segment, "Is Justice for Sale in Texas?" should we trust elected judges over elected legislators?).
Keep in mind that the Texas statute is based on the medical malpractice laws of that bastion of conservatism, California. Also note that recent studies have shown that doctors are leaving states without caps and moving to states with caps.
Jeff [10:49 AM]
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