Letter on Health Care to Senator Lieberman

September 24, 2009


Senator Joseph Lieberman
United States Senate
Washington, D.C. 20510

Dear Senator:

Once again I write you to ask you to support universal and affordable health care. It is a moral imperative to provide health care to all our citizens. Indeed, Maimonides ranked health care first on his list of the ten most important communal services that a city had to offer to its residents (Mishneh Torah, Hilchot De'ot IV: 23).

Although a single government-run system would be simpler and probably cheaper, I think we can agree that switching from the current employer-based, private insurance provided system would be highly disruptive. Therefore, I think we can agree that reforming the current system to reduce costs, ensure access, and mandate participation is the best way to reform our terribly broken health care system.

The Obama Administration has proposed the creation of an Exchange in which private insurance carriers can offer coverage to the 45 million Americans without coverage. To set a benchmark and ensure that such coverage is reasonably priced, the Administration, the House bills, and the HEAL bill all create a public insurance company, initially funded with governmental money, but then forced to run on a break-even basis. This is the so-called public option. Frankly, this public option is essential to make the system function. Without the public option, we could well end up with mandated coverage that is priced at an unaffordable level. Stated otherwise, substantially expanding coverage is not viable without the public option. And, substantially expanding coverage is the moral imperative of this legislation.

Reforming health care has numerous facets. We need to prevent insurance companies from excluding individuals from coverage or increasing premiums for pre-existing conditions. We need to stop insurance companies from unilaterally changing or terminating coverage when an individual gets sick. We need to compensate doctors based on a comprehensive system of care, not based on number of tests ordered. We need to lift the burden of uncompensated care off our hospitals. We need to focus on wellness and prevention not on terminal care. And, we need to check the runaway inflation in the Medicare program. If you work constructively with your colleagues on the Finance Committee, these goals can be achieved.

Senator, I ask your support of universal, affordable health care.

Sincerely yours,


Andrew Feinstein

Senator Lieberman on Health Care Reform

In August 1994 I published an Op-Ed piece in the Hartford Courant attacking Senator Joseph Lieberman for having a disingenuous position on Clinton's Health Care Reform Proposal. My comments then continue to have a certain relevance today.

Medical Malpractice

Medical Malpractice

The issue of malpractice reform has surfaced in the health care debate. As a trial lawyer, I have a certain amount of experience with malpractice actions. Unlike my colleagues in the bar, however, I think the current system is perverse and inappropriate.

When a prospective client comes in and tells me a story of medical neglect or about a bad outcome, the first question I have is, “Do you have injuries of over $250,000?” If not, it really does not matter how egregious the malpractice was. The cost of hiring experts and litigating to the nth degree is so high that no lawyer can take a malpractice suit unless damages are over $250,000. So, we need to reform malpractice to create a viable remedy for serious injuries that do not reach the quarter of a million dollar threshold.

Further, the system has become so highly charged that there are no quick settlements of medical malpractice actions. Part of this is, of course, the fragile egos of doctors who can never apologize or admit a mistake. Part of this is the strategic decision of insurance companies to fight every case to the death to deter plaintiffs from coming forward. So, enormous churning takes place. Motion after motion is filed. Depositions go on interminably.

And, the malpractice system interferes with my ability to get prompt health care. I asked my doctor why he will not answer email or telephone questions. Part of it is that he will not get reimbursed for this time for email or telephone. But, he explained, it is not the uncompensated time that prevents him from answering. It is the fact that he is totally exposed to malpractice claims for those answers. If he were compensated for the service, he might decide that answering calls and emails would make sense. The result is clear. I had a sore back and wanted to see a physical therapist. I called my doctor’s office. I was told I had to come in so he could rule out other causes. I decided it was not worth my time and paid the PT out of pocket.

So what is the solution? There are two goals to the medical malpractice system: compensating victims of some one else’s negligence and punishing health care providers whose actions fall below the standard of care. Malpractice is not a no-fault insurance scheme. Medical procedures carry risks and a horrible outcome can result from no negligence whatsoever. In that case, the patient bears all the burden.

The current system overcompensates a few victims, undercompensates most, and provides no compensation whatsoever for the victim whose injuries do not total $250,000. So, on the one hand, we need a low-cost administrative scheme, broadly like workers’ compensation, to compensate victims of medical malpractice. This means a table of damages. Critically, the table of damages needs to provide some meaningful recovery for pain and suffering. My thought is that we establish a maximum dollar amount for a day of the most excruciating pain. We then scale that back based on the level of pain actually suffered and multiply by the number of days of that suffering. Obviously, all medical costs resultant from the malpractice would be covered on a dollar for dollar basis. The patient would be awarded the costs of future medical treatment, if amply demonstrated. The patient would also receive an award for permanent disability. Lawyers for the victims would also be paid out of the system. All costs of this system would be paid by the medical providers’ insurance.

The other goal of the system is what worries me the most. Under the current system, many incompetent medical providers skate through, fending off claims and paying their premiums. Hospitals suffer no sanction for failing to enforce infection precautions resulting in thousands of unnecessary deaths every year. And, doctors routinely make money by ordering unnecessary tests and blame the malpractice system for their own greed and dishonesty. The replacement malpractice system needs to have three features. First, medical providers who face claims and who have to pay need to have their insurance premiums accurately reflect this. The risk cannot be spread too broadly. The weak, the incompetent, the lazy must face the consequences. Perhaps some will decide that the practice of medicine is too expensive for them and transfer to a field for which they are competent. Second, the compensation system must be closely linked to the licensing boards. When a medical provider reaches a certain threshold of claims, the provider should face a hearing by the licensing board to determine whether the license should be suspended or the provider placed on probation. Third, the entire system must be wide-open transparent. Any medical consumer in the area ought to be able to type in the name of a doctor or a hospital or a radiology service and see how many claims have been brought against them and what the outcome of those claims have been.

Okay, I know this proposal will be greeted with wrath by both my fellow trial lawyers and by the medical profession. Still, I think it is worth saying that the charges against the medical malpractice system by the medical profession are, for the most part accurate. The solution they propose will not, however, correct the problem and will just serve to further enrich them.

Health Care Town Hall Meeting

I attended Congressman Joe Courtney’s town hall meeting on health care last evening in Montville. I left pessimistic about the future of democracy, disgusted with my fellow citizens, and frightened. About 1500 people attended, perhaps 60% implacable opponents of health care reform. These folks booed, jeered, interrupted, read speeches written by others, made threats, and spewed demonstrably false information about the quality of American health care and death panels. They did not listen as Rep. Courtney politely and carefully explained the bill. They asked questions that were previously answered.

Remarkably, the vast majority of those excoriating government run health care depend on government run health care, through Medicare, Veterans benefits, or military retirement. Rep. Courtney was far too polite and political to call them out for their rank hypocrisy.

The meeting should never have been held. There was no one in the middle; there was no one with an open mind. The town hall meeting just served as a rally for the lynch mob. I wasn’t in Germany in the 30’s, but last night I felt that I was.

These people were not stupid. But they did see the world in black and white terms. And, they were scared. Scared of change; scared of growing old; scared of a black man as President. That fright became manifest in their refusal to extend health care to anyone: the young, the disabled, the poor. They would protect their own status in society by destroying the lives of those below them. The notion of a body politic was foreign to them. They had no compassion for their neighbors.

This borderline personality also manifested itself in extreme jingoism. The crowd demanded the recitation of the Pledge of Allegiance. And, they worked themselves up with cries of how America was second to none in health care, despite report after report showing the US to be at the bottom of developed nations across the board and to be at the very bottom in infant mortality.

Just like the crowds chanting USA, these folks had to believe that we were the best. As far as I can tell, the only areas in which we lead the world in health care are plastic surgery and hip replacement.

Is the bottom line that these people are mortified by two realities: that their own status in society is plummeting just as America’s status in the world is dropping? Are the members of the angry mob yearning for the romantic nostalgia of mattering individually and having the solace of being part of the preeminent nation on earth? They know that their sense of self-worth is slipping away. They seek to regain it through expressions of hostility and by threatening agents of change.