I love the Scouts (got two of my own) and appreciate the old motto: Be Prepared.

BUT -- there's preparation that's safe and sane, and then there's super-stratospheric safety that goes so beyond what's necessary that the end result is red tape. And how safe is it to be wrapped up in tape?

Guess. (This is a letter I got over at Free-Range Kids last week):

Dear Lenore,

Last year our daughter decided that she wanted to join the Girl Scouts.  My wife signed up to be an assistant.  Over the next few months we discovered what a strange and dysfunctional organization the Girl Scouts had become. 

You see, in order to have a camp fire on the Girl Scout campgrounds, you need to have someone who is “fire certified.”  My wife was all eager to earn this certification so that the girls could have a good time.  So she had to attend a two-hour class where she learned all about fire safety and how to properly build a campfire. 

You’d think that would enough, but you would be wrong.  She then had to attend another two-hour class on a Saturday.  Certified yet?  Of course not.  Now she had to attend a weekend camping trip where the parents could practice their skills and finally become certified.

This is where it gets absurd.  A bunch of parents go off on a camping trip where they are presented with rules that treat them as though they are children.  They still can’t have a camp fire! And if they have to go to the bathroom, they need to go with a buddy. Yes, even if it’s the middle of the night, you’ve got to wake somebody up. (Sanity prevailed and they all agreed to break this rule.)

Then, as they were sitting in a small group and talking, my wife hears a muffled cry.  After a minute or two she figures out that someone is crying for help.  The group rushes down to the lake where they can see that an elderly man has fallen out of his fishing boat and is unable to climb back in.  He's hanging onto the side of his boat, his legs submerged in the cold lake water.  He is minutes away from drowning.

When my wife and her group got to the lake, they encountered another group of moms who had arrived first.  Were they rushing out to save this man?  Of course not.  They were debating amongst themselves over who was “water certified” to help him!

Water certified?  Fortunately, they finally threw caution to the wind and my wife and some other parents got a boat out and rescued the man.  When the ambulance arrived, the EMTs estimated that he had been about five minutes' away from not being able to hold on any longer.  It’s so sad to me that these women were more worried about who was certified to help this man, than they the fact he was minutes away from drowning.

But at least my wife is now certified to start a campfire.  It only took two classes and a weekend trip. --  Brad, the Dad

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

To understand our undoing as a nation all you need to do is examine a single form filled out by a second grade teacher on May 3, 2013: The Suffolk Public Schools Discliplinary Referral Notice to Parents/Guardians:

On that date, under the section "DESCRIPTION OF INCIDENT," the teacher wrote, "Christopher pointed his pencil at another student as if it was a gun and made shooting sounds. I told him to stop and he did."

Now, you might THINK that that final sentence meant she told him to stop and he did. As in, "Okay kids, now let's get back to our math lesson." But in fact, the next part of the form is labeled, "THIS SECTION MUST BE FILLED OUT" and so it was, detailing all the post-pencil-pointing "ACTION TAKEN." Apparently the admins:

1. Held a conference with the student.
2. Met with his mother.
   
   And


3. Suspended the boy for two days.

That'll teach him to point a pencil!

Of course, this was all the result of Zero Tolerance, the school rules that are often interpreted with such bizarre literalness it's as if the principals have willed themselves into a kind of administrative autism. In this case, the school's policy is against "weapons or anything that resembles a weapon." If there's any difference between a pencil and a gun, well, the principal couldn't see it.

But what's even more disturbing -- and that's saying a lot -- is that the administration actually assumed its students were just as delusional.
Bethanne Bradshaw, a spokesperson for Suffolk Public Schools, told a Fox reporter that, when accompanied by verbal "gun noises" (or at least the universal stand-in for real gun noise -- the word, "Bang!"), "Some children would consider it threatening,  who are scared about shootings in schools or shootings in the community....They think about drive-by shootings and murders."

They do? Then here's a tip: Instead of reinforcing their hysteria by reacting as if they're in real danger, try saying something soothing instead, like, "Look, hon, it's just a pencil." (Or something satisfying like, "FOR GOD'S SAKE, IT'S JUST A PENCIL!")

But since it seems more likely that the kids were not ACTUALLY scared of being shot by a #2 Ticonderoga, then let's retire the, "Oh, the poor, rattled children!" rationale. If no one feels threatened, why overreact? And why teach kids to overreact, too?

Because that's what we've been trained to do. Safetyland -- excuse me, America -- is so obsessed with safety that we demand it even when we're already extremely safe. We want super-safety -- the kind you get when you make middle-aged moms take off their shoes before getting to the gate. Yes, we are 99.99999% sure you're not a shoe bomber, but just in case.

At school: Yes, we are 99.999999999999999999999% sure your pencil is not a gun, but just in case.

And in the courts: Yes, we are 99.999999999999999999999999999999999999999% convinced that a simple, "Put down that pencil" would have been the appropriate response. Case adjourned.

Until that sane day, we must remain very afraid.

Of hysteria in the schools.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

In 1980, the authors point out, the typical credit card contract was about a page and a half. Now it's 31 pages. Other practical examples of how complexity and lack of clarity waste money and time abound:

• One study found that landline phone customers spent more than $2 billion a year for unauthorized charges largely because the bills were so confusing most customers didn't even know they were being overcharged.

• Because of the complexity of insurance contracts, one survey found, as many as one-half of policyholders are misinformed about their coverage.

• The U.S. Constitution, written in the 1790s and the basis of the entire American government, is 0.1 percent of the length of the current income tax code, which runs 14,000 pages. Figuring out the ins and outs of the tax code costs American taxpayers billions.

In a world where there are over 425,000 iPhone apps, 241 selections on the Cheesecake Factory's dinner menu, and 454 lotions at Sephora, complexity is an issue that touches every aspect of modern life.

"One of the great misconceptions  about the complexity," writes Siegel and Irene, "is the belief that the people who made things so complicated--the bureaucrats, the technocrats, the lawyers--are the only ones who can get us out of this mess." They continue: "It's time for us to demand--of, if in leadership positions, to develop and put into effect--new ways of borrowing money, of paying taxes, of accessing government, of purchasing products, of communicating." This can be done, they argue, by transforming the way we do business and reinvent everyday practices and processes plagued by complexity.

Philip K. Howard, Common Good chair, recently hosted an event in New York featuring Siegel and Etzhorn and a discussion of the book. Howard pointed out that simplifying government, law and regulation is the central mission of Common Good's agenda--which is key to reinvigorating America's economy and reducing federal budget deficits.

Read full version on our website.

New York, NY – May 1, 2013 – Momentum for the creation of specialized health courts continues to build, as the nation faces rising health care costs without addressing the avoidable waste caused by unreliable medical justice, which fuels billions of dollars in unnecessary “defensive medicine” annually. Two new proposals from widely respected groups add to the growing calls for health courts. These proposals come in the wake of the first U.S. presidential race in which both major-party candidates endorsed health courts.

• The Brookings Institution issued on April 29th a report titled “Bending the Curve: Person-Centered Health Care Reform: A Framework for Improving Care and Slowing Health Care Cost Growth.” The authors of the report, which was funded by the Robert Wood Johnson Foundation and the Irene Diamond Fund, include some of the most distinguished names in health care and budget management from both major political parties; among them are two former Secretaries of Health and Human Services, two former Directors of the Office of Management and Budget, a former Senate Majority Leader and a former Chairman of the Council of Economic Advisors.

  In a section titled “Encourage States to Develop More Efficient Medical Liability Systems”, the report states: “Since most tort law and related regulations are under state jurisdiction, reforms to foster a more effective medical liability system will likely require state action. To encourage state liability reform, we recommend that the federal government provide states with technical assistance and grant funding to test innovative reform models, and to include such liability reforms in state-based reform initiatives. These state-level reforms should focus on well-supported models such as:

  • ‘Safe harbor’ or ‘rebuttable presumption’ laws that establish legal protections for providers who achieve high quality and safety performance using valid measures.
    
  • Reforms that modify the existing judicial process for resolving tort claims with lower-cost and more predictable alternatives. These include a ‘patient compensation system’ that enables most claims to be settled through a standardized administrative process with predictable awards based on the adverse outcome involved, and Health Courts in which independent experts with clinical expertise would adjudicate liability claims.”
    

• A new deficit-reduction plan was proposed on April 19th by Erskine Bowles and Alan Simpson, who chaired the National Commission on Fiscal Responsibility and Reform and now chair the Moment of Truth Project. The plan – “A Bipartisan Path Forward to Securing America’s Future” – states, in a section titled “Enact Medicare Malpractice Reform ($20 billion through 2023)”, “The current medical malpractice system adds substantially to the cost of health care, including by increasing the cost of defensive medicine...,” and recommends implementing eight reforms, including “applying a health court model to malpractice claims in the Federal Claims Court.”

These calls for health courts are the latest in a series of bipartisan calls for their implementation. In last year’s presidential race, Republican candidate Mitt Romney advocated the creation of specialized health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of special health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

The National Commission on Fiscal Responsibility and Reform endorsed the creation of specialized health courts, and three other bipartisan commissions have endorsed health courts: the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The concept of health courts has been championed by Common Good – the nonpartisan government reform coalition – working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice – and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

“Except for opposition from the trial lawyers who benefit from the current system of unreliable justice, health courts would be implemented and the public would avoid spending billions of dollars unnecessarily,” said Philip K. Howard, Founder and Chair of Common Good. “The only question now is: How much longer does the public want to pay for that unnecessary waste?”

A 13-year-old gets hit by a car while crossing the street to get to her school bus stop. She dies. Who is to blame?

Believe it or not, the school board--to the tune of $90 million. That was the decision of a Prince George County, MD, jury. What did the board do wrong? According to this story in U.S. News:

“The school board was negligent,” said John Costello, the lawyer for the family. “They had adopted a policy to provide for safe transportation. The policy was they were going to pick up Ashley on her own side of the street. They never did. They forced her to cross the street. She got killed crossing the street.”

“If she didn’t have to cross the street …  she’d be graduating this year,” her mother said. “She’d be going to prom this year.”

So if the school board was $90 million wrong for not putting a bus stop on the girl’s side of the street, does that mean every school bus should go up and then back down each street, to make sure no child ever has to cross? Otherwise are they all “negligent”?

Of course not. The jury is treating a tragic and rare event as if it were predictable or even common.  But it’s not. We know it’s not. Milllions of children around the world cross the street every day and , thank God, the vast majority of them are safe.

But when school boards start worrying that $90 million says they better not let any student cross the street EVER, well, let’s see what happens next. Will there be no more school buses, because the liability is too great? Or maybe we’ll see twice the number of daily buses--one for each side of the street? Or--here’s what I’m most afraid of--will students up to and including age 13 be required to have an adult accompany them when they cross the street?

What a simple and cheap solution that would be for the school districts and bus companies. All it would cost is a child’s autonomy and an adult’s ability to get to work on time. Already there are districts that forbid kids to ride their bikes to school, or walk home alone until a certain age, even if the parents and child both believe the kid is ready. The reason for these helicopter rules is liability. Better not to let kids do anything on their own than to face a grief-crazed jury.

It’s natural to want to blame someone when a child dies. But here’s a novel thought: Instead of blaming the very notion of expecting a 13-year-old to cross a street…why not blame the driver of the car that hit her?

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

Maybe no one should ever make – or buy, or use – a crib again. In 2010, the federal government recalled about 2 million cribs. This week, the Consumer Product Safety Commission warned consumers to stop using 73,000 more – specifically, drop-side cribs made by a company called PT Domusindo Perdana and sold at J.C. Penney’s.

Were these cribs spontaneously exploding? Whittled from endangered Baobab trees? Rolling over?

In fact, the Commission had received reports of three “incidents” wherein the drop side rails “malfunctioned or detached.” These resulted in how many injuries?

Zero.

Now, many folks might consider a product with a negligible number of complaints and a spotless injury record to be “safe.” After all, if you’re a company and you make 73,000 of a rather big-ticket item and you know it’s headed for the uber-scrutinized child market, you probably tested it for safety more than a few times yourself.

But the CPSC is tasked to look for danger. And if to a hammer everything looks like a nail, to the danger-seeking CPSC every crib seems to look like a Corvair.

Nonetheless, there’s a difference between protecting the public and obsessing over minute dangers. When zero injuries is not safe enough, what is?

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

In the first place God made idiots. This was for practice. Then he made School Boards. - Mark Twain

Heroin. Grenades. Wild jackals. Dodgeball.

None of these are allowed in the Windham, N.H. public schools.

Well, at least I assume the first three aren’t allowed. But dodgeball is definitely out, ever since last week, when the local school board voted 4 to 1 to ban dodgeball and nine other “human target” games (does that include tag?) from the curriculum.

The vote came after a parent complained of his child being bullied during the game. Predictably, that led to the formation of a committee to study the issue. And also perhaps predictably, given our outlandish level of anxiety when it comes to kids, the conclusion was that the games are too potentially traumatizing. Out they went.

But as a clearheaded student explained to the local paper, in dodgeball, the object is to win, and that involves hitting kids will balls. That’s not bullying, that’s playing.

And as the sole board member who voted against the ban also noted:

"We have rules that are set in place to deal with bullying," he said. "We don't need to ban an entire round of games just to enforce those rules."

And also let us note that the Windham students were not even playing with the rather intimidating red bouncy balls of days past. Now the balls are foam.

Foam!

Evidently even that's too much of a menace for our fragile kids to handle.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

The Fiscal Times asked Common Good Chair Philip K. Howard to diagnose the cause of our nation's legal, economic, and regulatory nightmare. The answer? "Cleaning up the government is hard not just because it is vast, but because it is tangled up in layer upon layer of antiquated laws--laws that should be periodically reviewed and simplified."

Convoluted laws and regulations gum up the works of government, creating a complex, wasteful bureaucracy. Common Good has argued from the start that America needs simpler government, law and regulation. That's why we've developed a set of concrete reforms to cut red tape and free Americans to innovate and create jobs in our economy.

Check out the Fiscal Times article, and join the fight for common sense.

According to Gallup:

• 82% of Americans disapprove of the way Congress is handling its job.
• 69% say they have little or no confidence in the legislative branch of government, an all-time high and up from 63% in 2010.
• Americans believe, on average, that the federal government wastes 51 cents of every tax dollar, similar to a year ago, but up significantly from 46 cents a decade ago and from an average 43 cents three decades ago.

Wayne Oliver writes in the Washington Times about initiatives in Georgia and Florida that would do just that:

The Georgia and Florida proposals would eliminate defensive medicine and create billions in health care and taxpayer savings. In exchange, the plan would replace the medical tort system with a no-fault, administrative model similar to a workers’ compensation system.

This would revolutionize the medical-malpractice system so that no physician would feel compelled to practice defensive medicine. Moreover, all injured patients would be compensated for their loss — something unheard of today because very few claims ever make it through the legal system.

See Oliver's full article here.

Readers--Here's a story from the NY Daily News that highlights two of the things that drive me craziest about our culture:

A family in Maine was serving a Walmart cake at their 2-year-old's birthday when they found a paring knife baked into it, on the bottom, clearly left there by mistake. Said the traumatized dad, the incident "put a dampener" on the party and people started to leave.

As if folks usually stick around for hours after the cake. Nothing more fun than the dregs of a party with over-tired toddlers! But the dad, sounding weepy, added, "We're not going to get that second birthday back ever."

Ohmigod--he’s right! How is anyone expected to recover from a blow like that? The family will NEVER get back a non-paring-knife-marred-cake-cutting-moment when their kid is two again! Naturally, that kind of thing is so unfair, so deeply disruptive to the natural order of things, that the dad said he may sue.

If he does, I hope he is thrown right out of court, and into a cake. (And if, ironically enough, there's a pointy thing in there, well...)

For its part, Walmart sounded almost sane and strong for a second, offering the family only its apologies and a replacement cake. Right on! But then a spokesman added that the chain was "now banning the use of pairing knives at its bakeries across the country."

Wha!? Just because ONE person in ONE Walmart screwed up ONE time with a paring knife--not an AK47--now the chain is banning ALL paring knives at ALL times in ALL Walmart bakeries? Are apples going to peel themselves for the pies? Is the store going to ban cleavers from the meat department, too?

What's disturbing about Walmart's response is how quickly and cravenly the corporation was willing to pretend that the problem was X, and now it is solved forevermore, by X banishment.

But the problem is obviously not paring knives. The problem is that human beings screw up sometimes, and this shouldn't be a sue-able offense unless there was gross negligence or malice, or some really unconscionable filling, like prune pudding. If a minimum wage bakery employee spaces out, it's time to talk to that employee, not issue an across-the-board edict.

So my ideal punishment for the Walmart legal team? Send them a cake. Prune pudding filling. No one goes home till it’s eaten. - L.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

Feds Shouldn’t Meddle With Medical Malpractice

The idea that we should reform the way we handle allegations of medical malpractice is enjoying a new vogue.

At the end of a long cover story for Time magazine on high U.S. health-care costs, Steven Brill suggested that doctors who follow the best practices in the field should be shielded from liability. Peter Orszag, writing for Bloomberg View, argued that this policy could do a lot to reduce costs. One of the few health-care ideas that almost all congressional Republicans have agreed on, meanwhile, is caps on medical-malpractice awards.

Another proposal comes from Philip Howard: Specialized “medical courts,” he says, should hear malpractice cases, just as there are courts devoted to patents, tax law and other areas where expertise matters.

Supporters of these ideas say they would do more than control costs. They would also improve the practice of medicine. Doctors would no longer order unnecessary tests, for example, to protect themselves against future lawsuits.

All of these are attractive ideas. And I don’t deny that medical-malpractice law needs reform. Every doctor I know has a horror story. But lawsuits over medical care have traditionally been governed by state law -- and they should continue to be.

Consequential Mistakes

The federal government should keep out of this area, first, because we don’t really know the best way to reform the system. Would a legal “safe harbor” for doctors really work, or would trial lawyers find a way to get around it? Pharmaceutical companies thought that the federal drug-approval process would protect them from the whims of state courts. They thought wrong.

Even if the safe harbor proved legally effective, it could have negative effects. Doctors dislike the current system partly because it limits their ability to do what they think best for their patients, but a safe harbor for supposedly best practices could just put them in a tighter straitjacket. By placing the practice of medicine under more centralized control, the idea will magnify the effects of any mistakes the experts make.

Caps on medical liability would prevent outrageous verdicts, but a cap set too low could reduce the incentive for doctors to avoid errors. Where should the cap be set? We don’t know.The second reason the federal government should let states set their own rules is that they can do so without imposing costs outside their borders. If West Virginia chooses rules that punish obstetricians and gynecologists, some of them will move to Pennsylvania, and care will get more expensive. That’s too bad for West Virginians, but it’s also an incentive for them to elect legislators who will get the balance right.

Other areas of tort law don’t offer this opportunity for competition and self-correction. In product-liability cases, people can sue out-of-state corporations in their own states’ courts using their own states’ laws. Companies with national markets have to adjust to the most demanding jurisdiction. The most punitive state or locality can thus set a de facto national policy. Federal action to stop states from hurting the rest of the country is justified: The Constitution wisely gives the federal government the responsibility to protect commerce among the states.

There’s no such justification in the case of medical torts. No state can use its medical-malpractice rules to force outsiders to bear extra costs. It’s true that state rules can inflate the costs of federal health-care programs (that fact helped persuade President George W. Bush to call for federal legislation to cap malpractice awards). But the federal government has voluntarily picked those costs up, and can’t use its own decision as a basis for intrusions.

State Solutions

A recent study by Michael Frakes of Cornell Law School suggests that states that shield health providers from liability when they follow best practices have much lower health costs than other states. Proponents of that idea are pointing to the study to justify federal action. What it shows, though, is that states are capable of implementing such a policy on their own and can capture the benefits.

Notice that neither of those things is true in product- liability cases. No state can protect its companies from lawsuits elsewhere. And if it clamps down on abusive product- liability litigation inside its borders, much of the benefit will accrue to residents of other states.

Ken Cuccinelli, the attorney general of Virginia, is one of the few Republicans to warn his party against attempting to reform medical-malpractice laws from Washington, even though, as he wrote in 2011, “I am concerned that our legal system encourages more lawsuits than are appropriate,” and even though this imposes higher medical costs. But not every problem has a federal solution, and he argued that states should fix their own laws rather than have the federal government take over the field. He’s right.

The latest example of that momentum is the introduction in the Georgia State Senate of the "Patient Injury Act". That legislation, Senate Bill 141, was introduced by Senator Brandon Beach . The bill would replace the state's current medical malpractice system with a no-blame administrative model – in effect, a health court. A hearing on the bill continues today.

"Reforming the medical justice system depends on the passage of state legislation like Senate Bill 141," said Philip K. Howard , Founder and Chair of Common Good. "Without it, defensive medicine will continue to drive up health care costs, because the current system does not reliably distinguish between good care and bad."

Rising health care costs are driven significantly by the unnecessary waste of defensive medicine – doctors ordering tests and procedures not based on medical necessity but to protect themselves from a possible lawsuit. Defensive medicine is notoriously hard to measure, with estimates varying from about $45 billion to more than $200 billion annually. A recent estimate from BioScience Valuation, commissioned by Georgia-based Patients for Fair Compensation, places the cost of defensive medicine in the United States at between $270 billion and $650 billion annually.

In last year's presidential race, Republican candidate Mitt Romney advocated the creation of specialized health courts in an op-ed in USA Today, in which he said that "the federal government should also encourage states to pursue additional reforms such as specialized health care courts or other alternatives for resolving conflicts." President Obama had previously endorsed the creation of special health courts in a letter to Congressional leaders released by The White House on March 2, 2010. In it, he endorsed health courts and proposed an appropriation of $50 million for demonstration grants including health courts. The bipartisan National Commission on Fiscal Responsibility and Reform – often called the Simpson/Bowles Commission – also endorsed the creation of specialized health courts, as have numerous other bipartisan commissions.

According to Patients for Fair Compensation, two recent studies by BioScience Valuation estimate that Georgia taxpayers could save "nearly $7 billion within 10 years if the Legislature replaced the state's medical malpractice system with a no-blame, administrative Patients' Compensation System" – a specialized health court.

The concept of health courts has been championed by Common Good – the nonpartisan government reform coalition – working in conjunction with experts at the Harvard School of Public Health, with funding from the Robert Wood Johnson Foundation. Under Common Good's model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers' comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice – and for health courts in particular. A nationwide poll conducted in April by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

"Rarely does one see such remarkable bipartisan political agreement and popular support for an innovative government reform," added Philip K. Howard . "The momentum in support of health courts is building, as the public grows increasingly unhappy with paying for the unnecessary waste of defensive medicine."

Read more here.

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

Hi Common Good Readers! Here’s a letter that may remind you of “safety” measures being taken in your own neighborhood. If so, we’d like to hear from you. There’s strength in numbers, and if enough parents, teachers, principals and plain old citizens feel that the new rules aren’t doing any good, we can push back together. So read this, then write us!

Dear Lenore: I took my kids to Sunday school a few weeks ago and the door we usually go in had a sign on it saying that we could no longer enter there.  Everyone needs to go in the door on the other side of the building.  Never mind that to get there, people now have to walk their children through the entire parking lot, which was already congested. (So much for “safety!”)

As I was walking my son to his classroom, I saw the woman in charge of Sunday school guarding one of the doors, waving away the people hoping to be let in.  I asked her about the new rule and she said, "I implemented it for safety.  Before, we had people going in and out of six different doors.  It just wasn't safe."  As we walked away from her, my 7-year-old son whispered, "Why is that not safe, Mommy?"

I couldn’t answer.

Then I picked up my 11-year-old daughter from her Sunday school class across the street.  She told me that instead of a normal lesson that day, they had a police officer come talk about personal safety.  “Personal safety” evidently means telling the kids details about several child abductions that have happened over the last 30 years.

As we were picking up my son from his class, I told my daughter that we must now walk around the building because they want everyone to go in and out of the same door.  She asked, "Won't that make it easier for someone who wanted to shoot or bomb people, because everyone will be in the same place?"

No answer.

Monday morning, I headed to the elementary school to change the marquee, as I have done for the past seven years.  I pressed the buzzer and instead of just opening the door as usual, the secretary asked me who I was over the intercom.  Never mind that there was a video camera and she could see me!  She let me in and I saw that she had a woman standing over her who’s evidently a security advisor.

I walked back to get the marquee letters in the office and she told me I needed to sign in, even though I do not even enter the main part of the school.  I do the marquee outside.

The only ray of hope came when I was leaving and overheard the office manager, principal, and secretary complaining to each other about how the new safety rules they are being forced to implement don't even seem to make anyone safer.

I keep thinking about the schools of my youth that had all of the doors open all day, every day, with no one monitoring who came or went.  The schools today have all implemented locked doors and buzzers and signing in, yet school shootings still occasionally happen.  Why does anyone think more and more "safety" rules are going to stop them?  If all of the safety procedures so far have not stopped these incidents, why will more safety procedures work? – Puzzled in Plano

P.S. The school district just voted to put armed guards at each of its 72 schools.

Tort reform caps only noneconomic damages, such as pain and suffering. A doctor can still be liable for millions for a lifetime of care for a baby born with cerebral palsy, even though the doctor did nothing wrong.

The only cure for defensive medicine is a system of justice that reliably distinguishes good care from bad. That's why a growing consensus, including President Obama, Mitt Romney and the Simpson-Bowles proposal, calls for creating special health courts. The cure for the disease of unreliable justice is reliable health courts.

Howard's letter accompanied several others, including this from an Arizona doctor:

The cost of defensive medicine doesn't lie in the additional study ordered "just to be sure" or to fend off a potential future liability claim from the patient being seen today. The continued presence of a malpractice threat has moved practice standards so that they incorporate the underlying risk and raise the cost of health care that isn't measured by changes in health-care spending with tort reform. Over time, constant malpractice pressure has changed what was once ordered "just to be sure" into the standard community practice.

A doctor from Salt Lake City adds:

The best place for medical malpractice is administrative law, not tort courts. That transition may not reduce the total amount of rewards paid by liability companies but the money will go to more injured patients and to fewer attorneys, and the physicians who cause harm can be dealt with in a far more effective fashion. I project the overall savings will be larger or at least produce a better picture of the cost of defensive medicine. But it will never happen because of the trial-lawyers lobby.

U.S. health-care costs keep rising, because Congress won't address the skewed incentives imbedded in the underlying legal structure. One basic reform - creating reliable health courts - would save tens of billions of dollars a year. Leaders of both parties, including President Obama and Mitt Romney, call for it, as does the Simpson-Bowles debt-reduction plan.

But this one obvious reform, which would probably save each American family more than $1,000 a year, has been blocked by a tiny special interest - the trial lawyers. America cannot avoid a fiscal crisis until it figures out how to overcome the stranglehold of this and other special interests.

Physicians and nurses distrust the current medical-liability system, because it does not reliably distinguish good care from bad. This causes doctors to practice defensive medicine, ordering tests and procedures not based on medical necessity but to protect themselves from possible lawsuits.

Defensive medicine is notoriously hard to measure, with estimates from about $45 billion to more than $200 billion annually. Defensiveness also leads to tragic errors, because doctors and nurses are trained to avoid speaking up - "Are you sure that's the right dosage?" - out of fear of taking on legal responsibility.

The distrust of the current system is amply justified, because it has an error rate of 25 percent according to a 2006 report by experts at the Harvard School of Public Health. The unreliability is hardly surprising since the current system lets lawyers argue almost anything - often with bogus experts - and present an emotional appeal to a lay jury whose members have no way of knowing what other juries or judges have decided in similar circumstances.

The current system also badly serves patients injured by medical mistakes. It takes an average of three to five years to resolve a claim and wastes almost 60 percent of an award on lawyers' fees and administrative costs. And in about 25 percent of the meritorious cases, the injured patient gets nothing.

Unreliable justice helps only one group - the trial lawyers, who can use the possibility of a rogue jury verdict to extort large settlements in tragic cases.

All these counter-productive effects of unreliable justice - including the huge waste of defensive medicine - can only be eliminated by creating specialized administrative health courts. The concept of health courts has been championed by Common Good - the nonpartisan government- reform coalition that I chair - working in conjunction with experts at the Harvard School of Public Health, with funding from the Robert Wood Johnson Foundation.

Health courts would have judges dedicated full-time to resolving health-care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in complex areas where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers' compensation, vaccine liability and other specialized areas.

The public sees the need for reliable health-care justice. The health court concept has also been endorsed by virtually every legitimate health-care constituency, including medical societies, patient-safety organizations and such groups as AARP.

Only the trial lawyers oppose health courts. Whom do they represent? Not injured patients, who are badly served by the time-consuming and unreliable system. Not the American families who must pay the rising cost of care. Not the doctors and nurses who must go through the day looking over their shoulders instead of caring for patients.

The trial lawyers represent only themselves - because they feed off the fear that a jury might render a ruinous verdict whenever there's a tragic medical result, even where the doctor did nothing wrong. It is precisely the fear sown by trial lawyers that causes defensive medicine.

Special interests undermine the promise of democracy. Everyone sees the problem here. Justice is supposed to be reliable, not a lottery. We can never fix the wasteful costs of health care until we provide a reliable system of health courts. Why are we waiting?

In any complex service delivery system you need openness and transparency. And what the Institute of Medicine has found is that defensiveness encourages professionals not to use their peripheral vision, not to speak up--'Are you sure that's the right dosage?'--because they're fearful of taking legal responsibility. They're afraid of speaking up when it's not their patient; you can't get into trouble if you don't do anything. Tragic errors might have been caught if people were simply being spontaneous and acting on their best judgment.

Read the whole article here, and find out more about Common Good’s proposal here.

It’s no secret that the American public views its elected officials with some combination of disgust, disappointment and distrust. Congress’s approval rating is in used-car-salesman territory, and with every legislative crisis it dips, somewhat amazingly, lower.

But, as bad things are, there is a tendency to assume that the current attitude toward the federal government is sort of how it always has been. Except that it hasn’t always been like that.

This chart is taken from a broader interactive project from the Pew Research Center that aims to document public attitudes toward the federal government from 1958 to the present day. It documents the percentage of people who said they trust the government in Washington either “just about always” or “most of the time.”

There are any number of interesting storylines in the chart  – for much of the 1960s, more than seven in 10 people expressed considerable trust in the government in Washington! — but what struck us most was how the current low period of government trust is, unlike past periods of distrust, seemingly unconnected to an obvious event or events.

When public trust in government collapsed from 53 percent in 1972 to 36 percent in November 1974, it made sense. The Watergate investigation, which led to the resignation of President Richard Nixon, was just the sort of ugly — and prolonged — episode to make public perception of government erode in a relatively rapid manner.

Ditto the historically low trust ratings reached in Pew polling in the early 1990s, as a series of congressional scandals — with the House Bank scandal being the most prominent — produced large amounts of media coverage focused on what the heck politicians were doing in the nation’s capital.

But the recent drop, which began in earnest after the goodwill toward Washington surrounding its actions in the wake of the Sept. 11, 2001, attacks wore off, seems disconnected to any single notable event. There have been a fair share of legislative standoffs and scandals in recent years, but nothing nearly as heavily covered or broad as Watergate or the House bank.

Instead, it appears to be a political death — or at least bloodletting — by a thousand cuts. No one event is to blame. Rather, something even more corrosive to government appears to be happening — a steady and growing belief that politicians in Washington are simply not to be trusted.

(It’s worth noting that this decline in trust in government has corresponded with a decline in trust in other major pillars of American life — from the financial sector to sports. Thanks a lot Barry Bonds and Mark McGwire!)

The depressing reality of Pew’s long-term trend on trust in government is that there is no obvious cure for what ails the body politic these days. Without a clear cause, a sure solution isn’t available. It’s possible that we are simply in a new era in which trust in institutions like our government simply won’t ever approach — or come close to approaching — its historic highs.

The end times of trust in government may well be upon us.

Teles presented the idea of "kludgeocracy" in Common Good’s 2010 forum on "Fixing Government Paralysis;" here are some of his comments:

From healthcare to education to infrastructure, the works of government are gummed up by convoluted, piecemeal, and reactionary laws and regulations. As Teles puts it, "For any particular problem we have arrived at the most gerry-rigged, opaque and complicated response."

Philip K. Howard, founder and chair of Common Good, made a similar case recently in The Atlantic: "Simplification does not mean eliminating government oversight. It makes oversight better by allowing people to use their judgment. Rules can't think. Nor does it give tyrannical powers to officials. Checks and balances can safeguard against abusive decisions--but these checks must also be based on judgment."

That’s why Common Good is producing issue briefs that describe common sense reforms to simplify government, cut deficits and create jobs in our economy. Take a look at our briefs on education, obsolete law, infrastructure, and more here. And read Steve Teles’s essay here.

For more information, read Common Good Chair Philip K. Howard’s recent essay on Health Courts at the Health Affairs blog.

Here’s a 90-second preview from WNET:

Watch the full program here or below:

For more information, download Common Good's issue brief "Rebuilding America: Fixing the Infrastructure Process".

Read more here.