Thursday, June 30, 2016

Chatbot Wins 160,000 Legal Cases - the "Future is Now"

From Yes Virginia, There is a Santa Clause (1974) came one of the great movie lines of all time: "have your people call my people, we'll do lunch." It has reappeared in various other movies including The Muppets Take Manhattan, Full House, JAG, and more. It has become iconic. A fellow traveller (a hat tip for the tip) emailed me a link to an article from the Mirror this week. As I read it, this quote occurred to me, but I struggled to put it into context. 

The article World's first 'robot lawyer' overturns 160,000 parking tickets, appeared in the Mirror. And the age of technology hits a little closer to home. I cannot feign surprise. I have touched on technology a few times, such as" How will Attorneys Adapt and Attorneys Obsolete. Technology is changing our worlds and we cannot feign surprise. It is not yet foolproof, fortunately. We may still have time to adapt (or run). Coincidentally we learned in June of Promobot, a Russian artificial intelligence robot., escaping its creators and making a run for freedom, twice. Now, exceeding its creators' control, Promobot may be destroyed.

The legal world itself is in  a state of change. Law schools across the continent have produced ever-larger crops of new attorneys in the last twenty years, and the market is flooded with attorneys. Despite this expanding supply, the attorneys want to override the basics of economics and feel they should nonetheless be paid ever-increasing fees. Supply and demand dictates that as supply increases, price should fall. If that applied to the practice of law, some argue that the lawyers should be paying their clients by now.  

Another challenge in the legal market is the consistent criticism of insularity. There are disputes about "what are legal services," and who can provide them. The WaPo recently reported Lawyers remain deeply skeptical of non-lawyers investing in law firms. There are those who feel that such diversity of ownership and some deregulation of the profession would mean more diversity and more jobs for attorneys, others fear competition and argue such deregulation would "destroy the practice." In 2015, the WaPo reported on a move in Washington state to empower paralegals to perform a broader range of services in Who says you need a law degree to practice law? There are similar initiatives under debate and development in other professions, such as medicine. The protectionism of professional privilege is under attack from non-professionals, para-professionals and now technology.

Last spring, I received an email from a colleague about a new legal research tool called Ross. It is an artificial intelligence application that provides intuitive and interpretational help to lawyers performing legal research. I wrote about it in Ross, AI, and the new Paradigm Coming. Ross is built on a similar platform as the International Business Machine program Watson. Some may recall watching Watson defeat two champions simultaneously on Jeopardy?

The import of Ross is that we have progressed from the days when lawyers wrote complex "search string" inquiries for research databases. Those strings were words, associated with each other by "connectors" such as "and," "or," and "but not." We evolved to restricting these searches later with such things as "w/2" and "/s" and "/p." The language was known as boolian alegebra (I was so pleased in the 1980s to find an alebra I understood). The "connectors" were merely logic statements for the computer.

To search for a case in which comparative negligence in an automobile accident was an issue, one might use the search string: Automobile w/5 "comparative negligence." The "w/5" told the computer that you wanted cases in which the word "automobile" appeared within 5 words of the phrase "comparative negligence." If that specificity did not yield results, the lawyer might change it to "w/s" meaning in the "same sentence, or "w/p" within the same paragraph. 

The computer was powerful, its knowledge base deep and broad, but it needed us. The lawyers wrote the query and that produced specific results. Written too broadly, the query returned thousands of responses; too narrowly and there were none. We had to specify, analyze, and refine repeatedly. The senior partner in my first law firm could not comprehend or appreciate the technology. He would send me his ideas for search strings in printed memos and I would do his research for him. He was convinced computers were for "secretaries," and that my interest in technology would doom my professional future. Unfortunately, it was not the only time he was wrong. 

But, we lawyers evolved from Boolean algebra strings to "natural language." These were programs that could take a plain English sentence and without our help turn it into a Boolean query. These "thinking" programs evolved rapidly, and have been quite common for the last decade. I taught a legal writing class last year and found that today's students do not even know what Boolean algebra is. They, as a generation of students, have grown up with the "natural language" format that has become the norm in legal research and the Internet generally. 

My analysis of Ross last spring has made me think a great deal. Can computers be programmed not only to respond with factual data, but to learn and think? It seems the answer is clearly yes. It is not coming, it is here in Ross and programs like it. For those of us that remember the Boolean algebra process and how long it ruled, its replacement by "natural language" and the current threat of artificial intelligence (AI), the pace of change appears to be increasing. We are assuaged by the little setbacks like Promobot, because they suggest our relevance remains, for now.

Now, researchers at the University of Buffalo claim that their computer can detect deception with increasing accuracy. An older article from MIT attests that this research and progress is not as recent as you might think. Computers are increasingly able to discover deception, effectively, efficiently, and increasingly accurately (hold on, that's my job; this is getting personal). 

Returning to the Mirror, we have news that the World's first 'robot lawyer' overturns 160,000 parking tickets in London and New York. This success is not a lawyer's. This success belongs to a "free online chatbot lawyer." A chatbot is an artificial intelligence. They interact with humans and other chatbots, and they learn, they adapt, they develop. Recently there have been some interesting chat bot stories in the news. They are not yet infallible. Microsoft's chatbot Tay learned to become a racist in no time. Some even question whether chatbots are just a fad.

Well, the "Robot Lawyer" chatbot has overturned "a staggering 160,000 parking tickets in London and New York City, saving users an estimated £2.9 million." This is a recent development; it has been operating for less than two years. The "world's first robot lawyer" is housed on the web at a site called "DoNotPay." The chatbot guides "users through a range of basic questions to establish if an appeal on their parking ticket is possible." In effect, it asks the questions that a lawyer might ask, in seeking to evaluate someone's chances in a legal setting.

Well, with such success, my first perception was some attorney programmed a computer to mirror her or his legal advice thought process. But no. It was not written by some legendary barrister of "Superlawyer." The chatbot is the brainchild of 19-year-old British student and self-taught coder Joshua Browder." He concluded that many parking tickets are illegally issued, and difficult to dispute. So, he wrote DoNotPay "by scanning thousands of documents released under the Freedom of Information Act." With some "guidance" from an attorney, he built the foundation of this litigation chat bot. I say foundation, because it is critical in this context to remember artificial intelligence is dynamic; it learns and evolves from success and failure just as we do. 

DoNotPay has helped a staggering 250,000 "clients" in its short (less than two year) career. It has succeeded in 160,000 of those cases, an amazing 64% success rate. No lawyer in her or his life will handle 250,000 cases. And a success rate of that magnitude, for a computer program, is simply amazing. Mr. Browder feels that DoNotPay is fighting injustice, protecting "the most vulnerable in society." Well, perhaps not as vulnerable as those who are accused of crimes that might result in jail or worse. But, admittedly, there are some towns and villages that may exploit the convenience of a parking ticket more for revenue than justice (some might even deploy their own cowardly bots to snap photos of accused violators in parking and beyond?)

Those cases will have to wait for now. In the foreseeable future, Mr. Browder sees the technology helping "people claiming flight delay compensation, help HIV Positive people to understand their rights, and provide support for refugees struggling to navigate foreign legal systems." And any such deployments may impact attorneys. As technology evolves and these kinds of programs are mated with ever more capable computer platforms like Watson and those that follow, it may be eve more difficult for attorneys to keep up, just as those Jeopardy champions were bested, the most capable attorneys may find themselves losing to chatbots

More importantly, at least for me, is the potential that such programs could be mated with the deception detection technology described above. That hybrid computer/software (digital judge, or "DJ") might measure the relative weight and persuasiveness of two other chatbot's arguments (digital attorneys), and assess the credibility of the humans involved regarding facts. Then the DJ computer could itself make a decision. The first artificial intelligence (AI) judge. And I find myself replaced by a DJ. 

Of course, we might still disagree with the DJ outcome. Could we have the decision re-analyzed by three more AI computers (we could call them the appellate chatbots or AC). They could review the analysis of the chatbot DJ and then agree (affirm) or not (reverse). In the process, the collaboration of those three AI ACs would "teach" the chatbot DJ, which would evolve and develop and learn. And, as importantly, as we learned on Jeopardy, the computers would all learn and respond faster than we could. An appeal could be as simple as pushing another button on the computer, and the AC response might take seconds. 

It is an interesting time. But, it may yet become infinitely more interesting. As the professions argue about dividing lines between professionals, paraprofessionals and lay persons, the bots may be taking over. It may be that we are fiddling while Rome burns. 

Oh, and now I realize why Yes Virginia, There is a Santa Clause is in my thoughts; "have your computer call my computer" and let me know what it thought of all this. Because we may not have or need "people" much longer. The Jetsons are here. 

Tuesday, June 28, 2016

You Wouldn't Understand

For the last ten years, there have been efforts in Florida to share workload among the various judges. We have 30 judges geographically distributed through the states. And we lease space in which to house each, and the required staff each requires. So moving judges from district to district is impractical, at least short term or on short notice. So, to share workload, we initially tried having judges travel outside their respective primary districts, and more recently with the use of the Office of Judges of Compensation Claims' (OJCC) video teleconference system, or VTS. This system interconnects the various district offices and provides unprecedented flexibility in case assignment. 

The conundrum in the OJCC statistics had been a perception that litigation, that is the actual occurrence of trials, was more prevalent in south Florida than in other areas. There is also a perception that sometimes the cases litigated there are more complex than elsewhere, leading to some discreet trials being longer and involving longer and more detailed final orders. The solution was to shift some portion of trials from south Florida to other judges. 

When this was accomplished with travelling judges, a judge would visit a south Florida district to hear cases. The trials were "donated" to this "visiting" docket by the regularly assigned judge. Attorneys complained that this process was too unpredictable. They wanted to know in advance which judge would hear their case. Inexperienced in other areas of law practice like civil and family law, some were unaware that learning the identity of your judge on trial day is common in other practices. Many of us have seen it repeatedly in Florida's Circuit Courts. 

To assuage those concerns, we began assigning south Florida cases to other judges, remote judges. The parties knew of the trial judge very early in the process. Attorneys then complained that these "north Florida" judges did not "know the players" or did not "understand the culture" of their cases. Several of these attorneys actually told me that they prefer that their judges to make decisions based on information outside of the evidence in their cases. They want judges who "know the players" and will make credibility decisions about medical doctors and other witnesses based on what the judge already knows of them. 

That revelation was a shock. That would be absolutely and incontrovertibly inappropriate. Judges are supposed to make decisions based on the evidence presented. And, if lawyers think there is relevant evidence about a witness, or impeachment of a witness, they are supposed to make that part of the record (ask those questions) in the case they are trying today; it is not appropriate to impeach someone's credibility only through argument today about reputation that everyone supposedly "knows."

The Judge's job is to hear the evidence that the attorneys and parties bring to trial in each case. The judge's job is to be unbiased by anything that is not in that record, in that case. If there is a reason to discount or disregard some witness' testimony or opinions, then it is up to the attorneys or parties in that case to document the reason and to make the arguments - in that case. We all learned in high school that reputation and rumor can be unpredictable and sometimes unfair. People should be asked about facts and their answers should be given consideration.  

After a period of several years, the OJCC greatly diminished assignment of cases to "out of district" judges. Many did not even notice. I was confronted at a recent conference by an attorney who assured me that "virtually all" of his cases in one south Florida district were being assigned to "north Florida" judges. I was skeptical, and agreed to research this. The facts did not support his complaint. In fact, very few of his recent cases had been assigned "out of district" as described. I do not doubt the sincerity of his perceptions, but they were simply not consistent with fact. 

I thought of this whole process of reassigning cases recently. This perception that there are "two Floridas," one to the north and one to the south. This familiar refrain that north Florida judges  do not "understand the culture" of their south Florida cases. These thoughts came to me when I recently read a WorkCompCentral article about the "two Californias." After reading it, I see some similarities to Florida, and some marked differences. 

In California, there is a "rating bureau" that participates in setting the insurance rates for workers' compensation. The president and CEO is Bill Mudge, and according to the WorkCompCentral story, he recently made some observations about California Workers' Compensation. Essentially, he claims that similarly there are two Californias, coincidentally the north and the south (Florida and California are both long and narrow, this makes some sense). There, the perception is that Los Angeles is different, and that it demonstrates different claim volumes. Ronnie Caplane is the "former chairwoman of the Workers’ Compensation Appeals Board;" She was quoted saying “I think we should just lop off Los Angeles and watch it sail by,” Certainly a direct statement. I have heard similar sentiments sometimes in Florida.

Mr. Mudge says that rate-making is about "trying to forecast human behavior.” He notes that this is difficult, essentially because people are different. One example noted is that "one in 60 workers are projected to file a claim in 2016." And while this is much lower than 50 years ago, "frequency in California has increased by a cumulative 15% since 2009" but frequency in "the rest of the country" has been declining during the same period. This raises some interesting questions. Are more people getting hurt in California than elsewhere? Or, could it be that similar proportions are hurt, but more people are reporting their injury in California?

It is also possible, as some have pointed out regarding Florida's decreasing "frequency," that perhaps more people are hurt than are reporting it. Some claim that human behavior is driven by risk and benefit analysis. That is, some who are hurt consiously consider whether the benefits ("upside") of a claim outweigh the risks ("downside") of being in the workers' compensation system. Then they make a conscious decision in some instances not to file a claim despite suffereing a work accident. Thus, some people argue that locations with higher claims are not inflated, but normal, and that the locals with lower claim volume are artificially suppresed by the upside/downside analysis and people's conscious decisions not to report. In either event, the disparity in frequency is interesting and worthy of consideration and discussion. 

Nonetheless, some point to south California in regard to this increase in frequency and lay blame or responsibility. Mr. Mudge says that frequency has increased in double digits in the Los Angeles area, while decreasing in the rest of the state. Another measure of claims is "severity." While "frequency" measures how often injuries are occurring, "severity" measures how serious they are, and as a result perhaps how expensive they are. Comparisons published in the WorkCompCentral story suggest that permanent disability, or singificantly severe claims, is also more likely in cases in the Los Angeles area. 

One propounded explanation is the frequency of California "cumulative trauma" injuries. A cumulative trauma injury is one in which there is no "accident." These are injury diagnoses where there is no discreet event or insult to the body. Instead there are a series of insults, perhaps "trivial" or uncompelling in themselves, which combine over time to result in an injury. The classic example is carpal tunnel syndrome, a painful condition of the wrists resulting from overuse. Another example is what became known to many as "tennis elbow." These "cumulative trauma" injuries now account for 20% of California claims that result in "indemnity" or cash payments to the injured worker for lost wages or wage-earning capacity. 

Another discussion in the California analsysis from the story is "attorney involvement." The article notes that attorneys are involved in "90% of the cumulative trauma claims in Los Angeles, compared to attorney involvement in 61% of claims filed elsewhere." The comparison holds for claims generally; "claims with attorney involvement ranges from a high of 58.3% in Los Angeles County and 56.5% in Orange County to a low of 28.8% in Mono County."

The implications are simple. First that attorney involvement is bad and second that attorney involvement makes the cases more severe. This, some argue is a "chicken and egg" analysis. Do the severe cases involve attorneys because they are severe, or are the cases severe because they involve attorneys? There can be rational arguments made for either, but arguably neither would fully explain the geographic distinctions cited. Why are there distinctions between north and south? 

The article also points toward mental health, noting that "claims from the Los Angeles area had a higher rate of mental health issues in general." Are people in the south actually suffering more mental health issues? Or, are people in the north under-reporting their own mental health issues? Some will argue that the attorney representation could also play a role. This is all very interesting. 

WorkCompCentral reports that an attorney at a recent conference said the judges are to blame. A judge at that conference said not to blame the judges, but the "law they enforce." Yet another attorney placed responsibility on the doorstep of physicians, some of whom "game the system" for personal gain. Ultimately, the article made me think about geographic diversity. Does the location in the state really make any difference? Is there a "culture" of cases that cannot be appreciated unless you live and work daily in a particular area of the state?

I had the chance to discuss the "north Florida judge" perception with such a judge earlier. The judge told me that attorneys trying cases by VTS has repeately made arguments in cases and then assured the judge of "truth," cautioning "you wouldn't understand" but this is "how it is here." I thought this was the most compelling perception yet about geographically distant cases and trials. If you are sure that some remotely-located judge "wouldn't understand," then it is your job to make that judge understand. Explain, demonstrate, produce evidence. As a law school professor of mine intoned repeatedly, "prove your case, that's your job." I found him annoying, and we all ridiculed his repetitious statements. In retrospect he was the master of the obvious sometimes, but his advice I now understand and recommend. 

No matter where you are, where your judge is, what the case is about, what the special circumstances are, your job is to prove your case. This means presenting your evidence. This means meaningfully cross-examining the opposing parties' witnesses. This means being prepared, concise, and effective. A good lawyer knows to never rely on what she/he thinks the judge may already know. The best lawyers prepare for everything, use what is required, and walk away knowing they did their best job. 

Are there "two Floridas." I leave that to others. Certainly, I have heard arguments to that effect. I respect that some feel that way, while others disagree. What do you think? Tell me. I think I can understand. I have often sung along (you do not want to hear) with Pink singing Gone to California, and now I will always wonder which California she means. Every time I hear California Girls (Beach Boys) or California Gurls (Katy Perry) I will wonder which California. Which California is it where rain is so infrequent? Or perhaps I am just overthinking things? Or perhaps I just wouldn't understand?

Sunday, June 26, 2016

Disgusted - Almost Beyond Words

I do not find myself speechless often, but an email late last week was perplexing and momentarily left me without words. I know the world is subjected to a fair amount of fraud and deceit, but I thought I had seen it all with the scum that prey on the elderly. Those stories make the news periodically. I was wrong. Now there is a direct and focused fraud apparently ongoing against injured workers. Although the first reports are coming from Kentucky, it is a simple scam and could easily be perpetrated in any state. 

I would like to think that this is a very small effort, affecting just a handful of people. However, it is happening frequently enough in Kentucky that the Labor Cabinet issued a press release. Despite that release last week, I have not seen the story make any of the news sites I frequent. Therefore, I have reproduced the release below for full information. Hopefully publicity will keep these frauds from stealing anyone else's money. 

Essentially, this fraud is perpetrated by telephone (I see no reason it would not work by email if they obtain worker addresses). The caller claims to represent Kentucky (or any state's) government, sometimes specifically the workers' compensation "Appeals Board." They congratulate the injured worker on the fact that they have been awarded workers' compensation benefits. Then they inform the worker that to release payment of those benefits, there is an administrative fee or tax that must be paid. 

This is similar to other "you have already won" scams in which the caller tells you that you have won a great prize (a new laptop computer), but that you have to pay shipping and handling charges before they can send your prize. These scams have received a great deal of publicity, but somehow the perpetrators just keep making little adjustments to their pitch and it just keeps working on the uninformed.

The Kentucky Labor Secretary warns that there is no such fee or tax related to receiving workers' compensation in Kentucky. He also makes clear that no one from state government would call to inform someone of the result of their claim for workers' compensation benefits. 

What about Florida? We do not call to inform workers of the outcome of a petition for benefits either. However, an injured worker here might receive a call from the Division of Workers' Compensation. They might be trying to assist an injured worker. The caller would be from the Bureau of Employee Assistance and Ombudsman. That caller would have all the information about the injured worker and her or his claim. There is no need to provide such a caller with personal information. Never provide information such as Social Security number, date of birth, financial or card account numbers, or names of relatives to any caller. 

If you receive such a call (any call) and are suspicious, tell them you are happy to speak with them, but that you need to call them back. The Ombudsman's number is toll-free, (800) 342-1741. If the caller is really from the Ombudsman's office, they will be happy for you to call them back, and they will completely understand you wanting to verify them in this way. 

This works with any unsolicited call. If someone calls you seeking information, get their name and the name of the organization they represent. Then find a phone number for that organization yourself. Look it up online, use a phone book, etc. Call back with the published number you find, and then talk with them. At least then you know they are really affiliated with that organization.  

Is there a tax or a fee associated with receiving workers' compensation in Florida? ABSOLUTELY NOT. If anyone asks you to pay a fee or tax as a condition of receiving workers' compensation benefits, something is wrong. Get their telephone number and name. Then Contact the Florida Division of Workers' Compensation and provide them the details: date and time of the call, the name and number they provided. DO NOT send anyone money, a money order, check or provide credit or debit card information. Anyone asking you for money in this manner is likely taking advantage of you. It is very suspicious and should be reported. 

To contact the Division of Workers' Compensation call (800) 342-1741.

To contact the Florida Division of Insurance Fraud you can complete an online referral application or you can call the Department of Financial Services Fraud Hotline (1-800-378-0445).

To learn more about online scams, check this Reader's Digest story. To learn more about telephone scams, check this detailed Lifehacker story. 

Below is the Kentucky press release:

Commonwealth of Kentucky
Labor Cabinet

Jarrad Hensley

Kentucky Labor Cabinet Dept. of Workers’ Claims Warns of Workers’ Compensation Scam

Frankfort, Ky. (June 24, 2016) – The Kentucky Labor Cabinet Department of Workers’ Claims has learned of a telephone scam in which individuals are told that they have been awarded workers’ compensation benefits and that those benefits will be released once a certain “tax” or “fee” has been paid. The caller may identify themselves as being a member of the “Workers’ Compensation Appeals Board.”  The public should not fall for this scam.  Workers’ compensation beneficiaries are not contacted in this manner and no taxes are payable on benefits.  In addition, there is no entity in Kentucky known as the “Workers’ Compensation Appeals Board.” 

Kentucky Labor Cabinet Secretary Derrick Ramsey advises Kentuckians to be on guard for potentially fraudulent phone calls. “Unfortunately, there are people out there who are always trying to take advantage of unsuspecting citizens,” Sec. Ramsey said. “I encourage people to use common sense on this matter and to not provide any personal information to persons making unsolicited contact.  If it sounds suspicious or too good to be true, do not hesitate to contact the Department of Workers’ Claims.  I also encourage all Kentuckians who feel that they might have received one of these solicitations to report them directly to the Office of Inspector General for the Labor Cabinet.”

Consumers may contact the Office of Inspector General at 502-564-1985 and Eppc.oig@ky.gov or the Attorney General’s office at 502-696-5300.

Thursday, June 23, 2016

Single Payer Questions

What if there were no disputes about whether work did or did not cause the need for someone's medical care. That is perhaps not practical. But, perhaps Colorado has an idea in which such disputes would be decreased? With its proposal for "single payer," Colorado proposes to have every person in the state covered by health insurance. This would perhaps mean that every injury or illness would be cared for (a "chicken in every pot"), without the need for determining whether work is or is not responsible; determinations that unfortunately sometimes come down to litigation, and determinations of credibility

There is some discussion about how workers' compensation does not operate as smoothly as it might. It has its "friction points." Many hypothesis of "why" are put forth, and much like the fable Elephant and the Blind Men, much may depend upon personal perspective. But, one of the conflicts often seen is the issue of causation. When an employee presents with complaints of back pain, the question may be whether lifting at work caused the injury or whether something unrelated to work is to blame. The controversies of causation then influence much workers' compensation. 

The debate, evaluation and litigation of causation consume resources and time. Courts are sometimes humbled by the complexity of the analysis of compensability. And in the end, whether something is or is not work-related really comes down to how that standard is defined, and the Devil is in the Definitions. Legal definitions which some see as legislative prerogative and others see as constitutionally constrained individual rights. 

What will be the standard for what is "work-related?" There are those who advocate a very low standard; if the work "contributed" to the injury, then they conclude workers' compensation should be responsible for treating that injury. Others conclude that a more stringent standard should be satisfied; only if the work performed is the major cause or the more predominant cause should workers' compensation cover the treatment. 

If the cause of injury is work, under the standard adopted in a particular state, then the cost for treatment is borne by the employer. And if not, then the cost is borne by either another insurance program, such as health insurance, or in some cases Medicare/Medicaid, or perhaps even by the person suffering the injury.  In the end, of course, the Ultimate Payer is you and me. 

Having de-criminalized marijuana with Ballot Initiative 64 in 2012, Colorado has led the country in a different direction. Now, in 2016, Coloradans prepare for the "Godzilla of all Colorado Ballot Initiatives," Ballot Initiative 69 (once called Initiative 20, with more details), which would create "a state governmental universal health-care system." Colorado would be the first state to finance a "single payer" and "revolutionary" "health insurance scheme." According to the Colorado Chamber of Commerce and Industry, this new program would "swallow up all State and Federal health-care programs, including . . . Colorado’s workers’ compensation system."

The first question some will ask is whether the state can make its citizens buy something. That is an interesting question and will depend upon court interpretations of the Colorado constitution. There may already be precedent in Colorado to guide the court's determinations of this question, but we have to recognize that courts seem increasingly less respectful of precedent and more inclined to reach their desired results regardless of the nagging stare decisis. There are even those who believe that courts essentially make up or create law to suite their outcomes, an fault that has been recently hurled in Florida regarding the analysis in Castellanos. That is a subject that deserves more discussion one day, but this is not that day.

Clearly, the United Stated government has the authority to make people purchase goods and services regardless of their desire therefore. Almost a hundred years ago, the United States Supreme Court concluded that the Interstate Commerce Clause ("ICC") justified the government telling you what you may or may not grow on your own land. This decision could easily be interpreted as likewise allowing control of what you manufacture or produce otherwise. It is an expansive and interesting interpretation of the Constitution. That analysis is in Wickard v. Fillburn

Many years later, the same logic would be used the Court in Federation of Independent Business v. Sebelius, 567 U.S. -----, 132 S.Ct 2566 (2012), to conclude that the ICC empowers the federal government not only to tell you what you may or may not grow or manufacture. The Court in Sebelius concluded that your federal government can tell you what you must purchase, upholding the mandate of Obamacare that you must purchase health insurance, or pay a fine for not doing so (unless the government chooses to ignore your particular willful refusal, which I am assured is occurring daily in America).

So, ColoradoCare would mandate that all in Colorado "purchase" health insurance. A universal utopia in which each will pay according to their ability and receive care according to their need. Some Coloradans might still also purchase commercial health insurance; perhaps to cover out-of-state care when travelling, or to obtain care that the "one size fits all" socialized medicine plan does not provide. There are complaints in other social medicine jurisdictions such as Canada of delay and denial that some remedy through private payment of some form. But most would have ColoradoCare as her or his one and only health insurance. 

I have written about the cost-shifting that occurs as providers and facilities face the situation of a patient in need of care, yet unwilling or unable to pay. I have also written of the allegation that medical decisions could be made based on payment parameters rather than science. It is conceivable that a "single payer" system could ameliorate each of these somewhat. With everyone insured, then everyone would receive care. The insured would no longer subsidize the uninsured? True perhaps to a point, but Obamacare has taught us the hard lesson that "mandatory" does not always mean everyone. 

This ColoradoCare system is intended to collect premium taxes from payroll. Thus anyone employed would pay for health coverage. There is also an intent to "collect 'premium taxes' from workers, employers and taxpayers who have non-payroll income and then pay health-care providers for services rendered to the 'members' and beneficiaries of Colorado Care." So those who are employed would be taxed and those who have income from sources other than employment would be taxed. And those who do not have income, or who are successful at hiding their income, would not be taxed (and yet might still present for medical care). 

This public entity, ColoradoCare, would be created by the state, but would not be subject to the control of the state. In fact, it would be free of any legislative oversight and free of any “'administrative direction or control'” by any state government entity."  It would be controlled only by a board of trustees. Established by constitutional amendment, and empowered as a constitutional "political subdivision" of the state, it would be independent, and omnipotent. Essentially, the legalities would create a fourth branch of Colorado government. A branch with an independent authority to tax and spend for the health of all. Some wonder whether such a government branch would be omniscient, benevolent, efficient, and effective? And even some who believe it would be, wonder how long it would be (some skeptics see bureaucracy as an ever-growing cancer, immune to treatment or control). 

What would it cost? The short answer is no one knows for sure. The Initiative calls on a tax of 10% on all income in the state, including capital gains, pensions, annuities, and Social Security benefits.  The answer, from some perspectives, is always more taxes. Coloradans already pay 4.63% state income tax. The rate for federal income tax is subject to many adjustments, and less subject to a broad statement like that. But, the median American household income in 2014 was $53,657. According to one calculator, a single person with that income in Colorado would pay taxes of $13,187 as of now. 

The taxes for FICA (which means "Federal Insurance Contributions Act" - it is not tax, this is your "contribution" to the greater good) are roughly 7.5%. What many forget is that this percentage is paid by the employees from their check, but employers pay a matching percentage. Thus, another 7.5% of the employee's pay is provided to Washington in "contribution" for its payment of Social Security, Medicare and Medicaid. So, the tax for FICA is effectively 15%, or $4,105 for this median employee, plus another $4,105, or a total of $8,210 for FICA. Absent this contribution tax, this $8.210 could be paid to the employee to provide for her or his own expenses, Instead it is "contributed" to the common good of federal programs. So, effectively, one might argue that the real tax burden on this hypothetical Coloradan is actually $17,292 ($13,187 + $4,105), an effective rate of about 32%.

Then there is the federal excise tax on gasoline at $.184 cents per gallon and Colorado's gasoline excise tax of $.22 per gallon. The average car gets 23.6 miles per gallon (not enhanced for mountains or snow - which Coloradans might tell you decrease mileage just like the four-wheel drive they have to assist with it) according to the Washington Post. And Americans drive about 15,291 miles annually. So, about 648 gallons each year, adding up to about $261 more in taxes. This brings the total to $17,553 ($17,292 + $261).

In addition, Colorado has a sales tax that is at least 2.9%, and which localities may raise as high as 10.9%. To figure out what that amounts to, the "income after taxes" figure is an appropriate starting point, from this example, that is $40,470. The typical American saved $1,690 last year, which reduces the amount probably spent from the "after taxes" to $38,780. Fortune says that typically housing should be no more than 30% of income (but it notes some people spend more). Thirty percent of that $40,470 is $12,141. So removing savings and housing upon which no sales tax is paid, perhaps a Coloradan has $26,639 ($40,470 - $1,690 - $12,141) to spend. And if the minimum sales tax (2.9%) is applied to that, it is additional tax of $772.53 (if the rate is 10.9% it would be $2,903.65).

Colorado also has excise taxes on cigarettes, alcohol, gambling, and (you guessed it) marijuana. But assuming one does not partake, these would not be in the calculation. 

So, the average Coloradan, with a median income, and average tastes and needs would today have a tax burden of at least $14,220 (26.5%) to $18,325 (34%) (if one presumed that the employer contribution FICA, if not paid to Washington, would be paid to the employee). And, living in some locals with local option sales taxes that could be significantly higher. 

The new 10% tax for ColoradoCare care is divided into two categories, an employer share of 6.67% and an employee share of 3.33%. 

As an aside, ColoradoCare seems to alleviate any flexibility for employers as Obamacare has demonstrated. The Obamacare legislation mandates employer provided coverage for "full time" employees. The Obama plan also does not mandate coverage for an employer unless it has 50 employees or more. Its lack of vision and planning in this regard has reaped unintended (hopefully) consequences that some deride. But ColoradoCare is not so limited. It broadly defines "employee" as anyone that works or resides in Colorado and "who receives wages, salaries, tips or any other income . . ." There is also nothing to say an employer cannot pay the 3.33% for its employees, if it so desires. But, the fact remains that without ColoradoCare, an employer might pay the employee 10% more wages and remain competitive. 

This is an option only available to the small employer or the employer limiting worker hours under Obamacare, but today it is an option. Under ColoradoCare it ceases to be an option and Coloradan's effective tax rates increase. So, the if the employee pays only the 3.33% for ColoradoCare, this would change the tax burden calculations between $14,220 (26.5%) to $18,325 (34%) instead to between $16,007 (29.8%) to $20,112 (37.4%). And the rate would be higher still if one considered 6.67% "employer" ColoradoCare share as money that, absent "ColoradoCare," might be wages paid to the employee. 

But, how would the cost of ColoradoCare compare to the current options available to employers, that is group health coverage in a commercial market? The first consideration is that ColoradoCare is universal coverage. There is no apparent exception for the self-employed or small employers or employees who work deminimus hours (work an hour, pay a tax; get a divident, pay a tax; receive Social Security, pay a tax - sounds a little like the Lee Iacocca rebate offers of the late 1970s - "buy a Chrysler, get a check"). 

In the current state of medical insurance, there is not such a broad mandate. So, for some workers, the cost of ColoradoCare will certainly be higher than their current option of having no insurance. Some in today's market need not have coverage due to their work hours or the size of their employer. They choose to "self-insure" and upon illness or injury they either pay the bill or the taxpayer and public are saddled with that loss. ColoradoCare will make that choice harder or perhaps prevent that choice at all. 

There is, of course, also a population that does not work and does not earn wages. Colorado says it has a plan to collect ColoradoCare taxes on such non-salary income. Social Security is specifically mentioned. I have found no discussion of people who receive other government income such as welfare, food stamps, WIC, unemployment compensation, workers' compensation or others. It is unclear whether these individuals will pay tax to provide for medical care, or whether the financial cost for their care is shifted to the Coloradans who do pay taxes to support the new system. 

Enforcement may be a challenge. Despite Obamacare being "mandatory," I am assured that there are many uninsured Americans and that the government is not pursuing them to force "mandatory" care upon them (that is force their financial participation - premium payment). Some wonder how persistent or successful ColoradoCare will be in pursuing those who work for unreported cash or otherwise subsist without traditionally recognized income?

So, how does the proposal compare to the system many use for health care today? The average health insurance cost last year, for a single person, was $521.00 per month or $6,251 per year. On average, the employer paid $5,179 of that amount. ColoradoCare promises less expensive medical care. And, when the additional savings in workers' compensation premiums are considered, the projections may be significantly less in terms of overall cost. But, using the average numbers for cost and employer contribution, the ColoradoCare plan will significantly benefit the employer and burden the employee (in this single, discreet comparison). And, the employer may find that the "savings" evaporate to some degree with the inclusion of all employees, rather than the "full time" employees and without the exceptions for small employers.

So, it appears that for employees the ColoradoCare plan offers: mandatory coverage (no employer or employee appears to be exempt), higher taxes, and increased cost for those who already enjoy employer-provided benefits. 

For small employers, it appears ColoradoCare offers: higher taxes and likely higher costs due to the mandate of coverage on all employees, part-time or full-time regardless of business size. Colorado mandates workers' compensation for employers with "one or more employees," and so there should be some corresponding employer savings from lower workers' compensation premiums when ColoradoCare takes care of the medical portion of work injuries. 

For large employers, it appears ColoradoCare offers: higher taxes and likely higher costs due to the mandate of coverage on all employees, part-time or full-time. Large employers may likewise enjoy some corresponding savings from lower workers' compensation premiums just as with small business.

And, finally, it must be remembered that all of these prognostications are tied to the calculations based on the 3.33% and 6.67% now stated. If the costs of the ColoradoCare system increase (as unlikely as it may seem that a bureaucracy's costs could increase), then those percentages might likewise rise to cover costs. As an independent governmental entity, ColoradoCare will be able to set its taxes, responsible solely to the people themselves. Only through the ballot box, either to amend Colorado's constitution eliminating ColoradoCare, or to change the ColoradoCare leadership, will Coloradans have any say in the cost, effectiveness, or value of their new socialized health plan. 

In today's market, although Obamacare mandates (at least in some population) coverage, the consumer has choice regarding which coverage to purchase. If a plan is poorly managed, or if losses are poorly controlled, then that plan's premium may rise and customers may cross the street and purchase from someone else. Though coverage is (depending on how you define the word) "mandatory," source today remains discretionary. But in the new ColoradoCare paradigm, if it is poorly managed the board will face a choice: manage better or charge more. Bureaucracies have been teaching us for centuries that "charge more" is easier in a tax-based system, and waste occurs. And, Coloradans will not be able to cross the street to purchase an alternative, better managed, less-costly alternative. Their only real choice will be to leave Colorado or not. With the seemingly strong national belief in socialism, that choice may not persist long-term. 

It will be fascinating to watch this develop. Will one size fit all? There was a time I would have bet against it. But, there was a time I thought the FDA would protect Americans from dangerous drugs. There was a time I thought the federal government would enforce its laws. There was a time . . . . (sounding like my grandfather now). As Bob Marley sang so many years ago, "Time alone - oh, time will tell."  

Tuesday, June 21, 2016

Shall Your Car Chime in?

Are there no ends to technology? The news has brought us all glimpses of how technology is already changing our professional lives. Some of this is in a post I wrote last year How will Attorneys Adapt. Technology is being developed around us and integrated into our lives. I drive a twenty year-old vehicle, which lacks the "bells and whistles." It is sometimes therefore hard for me to adapt to modern technology in newer vehicles. 

There is a television advertisement running recently in which a father/daughter combo are commuting to school in the family car. It features a storyline of the historical challenge parents face when communicating with teenagers; the struggle of communication is "the hook." It does not demonstrate a self-driving car, but a harbinger of that eventuality. This car stops on its own when it senses something in front of it. Distracted by the struggle of conversing with a teen daughter, dad almost rear-ends a vehicle and tragedy is averted by the braking system.

A car I recently rented had a similar feature. As I parked the vehicle in a garage at the Orlando district office, an annoying beeping erupted from the dash. The closer I moved toward the wall in front of the car, the more insistent the warning became. That was handy. I described it to a friend, who related that his car has this feature while his wife's does not. He therefore recently hit a parking lot light pole with his wife's car, because the warning to which he had become accustomed did not remind him not to hit the pole that was literally right in front of his face. Note to self, if you are going to hit something do not do it in your wife's car!

Technology is coming at us from so many directions, and helping us. I reflected upon that recently when I was asked for my home telephone number in relation to a business transaction. I had no idea. I had to look it up in my cell phone. As I reflected on that afterward, I realized that there are only three phone numbers I know: mine, my wife's, and my office. For all else, I am dependent on the storage and memory of my cell phone. If I lost that phone, I would be unable to call anyone else I know. I have no idea what anyone else's number is. Discussing this with colleagues recently, I realized it is far worse than I thought; I do not even know the area code for a great many people I might need to call. Thankfully, my colleagues all claimed to be in the same boat (or they just wanted me to feel less inadequate?)

I rent a great many cars. The accountants at the State of Florida prefer that I rent a car to travel as it is less expensive than the mileage reimbursement rate in most instances. This makes travel far less convenient. Although I do not have to spend hours in line going through airport security, I do get to spend hours standing in line at car rental counters (we do not choose the rental agency, that is chosen for us; though the long waits are troublesome, at least the cars smell really bad once I finally finish the paperwork). In line, I particularly enjoy listening to the rental company employees who are not working as they sit and discuss minutia while the one working rental car clerk processes the usually long line of customers. While I appreciate that one working employee, I always wonder how much faster we could all be on our way if all three or four of the clerks actually waited on customers? But, I digress. 

On one occasion recently, the one clerk that works spent five minutes explaining to the person in front of me that a navigation feature would be of great assistance during their vacation. I overheard this pitch while the other adult and both kids in the group stood by working (playing) away on their three respective smart-phones. Here they were in northwest Florida, fairly apparently headed to the beach (go south, you can't miss it). But how, the clerk asked, would they find restaurants, their hotel, and more without navigation? Believe it or not, this family of smart-phone aficionados agreed to rent the navigation system. Technology on top of technology for the ease of locating food (at heart, perhaps, we are all just hunter-gatherers?)

On another occasion, I was recently driving a rental car back to Pensacola. Every vehicle that passed me either flashed its lights or honked a horn. I was feeling quite popular (or perhaps driving too slow). After several miles, I realized that this compact (basic, but with power windows) car did not have automatic lights. It had a feature that had turned on the headlights (daytime running lights), and I could easily see the road. But apparently, the designers found it less important to turn on the tail lights so that others could see me (and graciously avoid hitting me). It seemed to me that perhaps my not being able to see (no headlights) might be a sound indicator to turn the lights on. That is how my 20 year-old car does it at home. I still struggle to understand why a car would turn on the front lights and leave the back dark until you use a switch?  

So, what does technology do for us? It absolutely helps. Before we stored telephone numbers in our phones, we likely remembered more than we do today. But, the fact is we did not have eidetic memory either. We wrote ourselves a great many notes, and often forgot what we did with them. I even had a digital diary for phone numbers and addresses back in the day (feel really old when I think of technology from the 1970s and 80s). But technology is undoubtedly changing our world, and in the process it is changing us. Today, I remember less numbers because I simply do not need to remember them. 

This all came back to the front of my brain when I read about the most recently announced innovation from General Motors. They are responding to a perceived market "need" with yet another feature. See, a great many news stories recently have featured death or serious injury of children and pets in hot vehicles. 

There have been many stories: Hospital CEO Leaves Child to Die in Hot Car; Fatal Distraction, Leaving a Child. The news reports would make you think it is a near daily occurrence. The statistics support that about 37 children die in the U.S. each year from heat stroke. It is undoubtedly tragic to lose a child or pet in this manner, but it is apparently not as frequent an occurence as the news might lead us to believe.

According to the Insurance Journal "about half of the children under age 14 who die of in-vehicle heatstroke do so as a result of being forgotten." So about 19 children each year, if the statistics above are accurate. But, it also turns out kids are not all we forget, the Journal notes that "items left in the back seat are a target for theft." It says that a notable percentage of larceny in this county involves theft from cars. 

So, General Motors (GM) has yet another technology solution that they will test as a feature on one of their 2017 vehicles, a mid-size sport utility truck (moms apparently like sport utility trucks). GM contends that we are all just too busy. We are not checking that back seat when we leave the car, because "it’s easier than it seems to forget what’s in the back seat when moving between life’s events." So GM's engineers have designed a monitoring system, and are "leading the charge to address this ongoing problem” with American forgetfulness. 

How will it work? The car will know if you have opened the rear doors. If "either of the rear doors is opened and closed within 10 minutes before the vehicle is started, or if they are opened and closed while the vehicle is running," the car will take notice. Your car will be watching you. When you later turn the car off under these circumstances, there will be "five audible chimes" and a "message in the driver information center" (those various dash warning lights). This new one will read “Rear Seat Reminder / Look in Rear Seat.” 

Will other vehicle manufacturers adopt this as a trend, or will it remain a curiosity on a very small portion of the GM fleet (which seems to be an ever decreasing proportion of the vehicles I see on the road)? Will this feature save lives and prevent theft for those who purchase it? Absent some testimonial (paid?) from a live customer, we are unlikely to ever know. The news media is likely not that interested in reporting a "near miss" in which someone "could have" been left in a hot car absent this automatic warning. Will someone leave something in the back seat of their spouse's car because it lacks such a warning to which they were accustomed ("there was no alarm to remind me; my car would have reminded me; I drive a GM _________").

With all of the automation, are we making our world better? Are we helping ourselves? Or are we just conditioning our brains to be less and less self-sufficient? Perhaps I should know to just turn the lights on when it gets dark? Do we want to become as dependent upon our vehicles as we are upon our smartphones? Do we want self-stopping technology, or back seat warning, or automatic lights on one family car, when we may lack it on others. We might find ourselves hitting the car in front of us instead of a parking lot light pole? Or, worse,  we might become so comfortable with our car's autopilot that we become complacent? A Tesla driver may have recently learned that lesson, permanently. He may have been watching movies while letting the car do the driving. You know, "momma always said stupid is as stupid does."

Back in the days of no chimes, alerts, or automation, I once rushed to an appointment. Afterward, I could not find my car keys. After much searching, I returned to the vehicle and found them, dangling in the ignition; both doors locked. A nice police officer opened the car for me. I learned and adapted. Since then, I have habitually checked for my keys before closing my car door. Not because I lack that modern chiming ignition alarm (even 20 year-old cars have those), but because it is habit. I check the other pocket for my cell phone, habit. Should we not just do the same for our back seat, headlights, etc., or is yet another vehicle computer program and chime necessary?

Perhaps all of this vehicle enhancement is just precursor to the ultimate self-driving car. Perhaps these are all just innovations that such a car will need to take care of us and our passengers, to get us place to place. But, as our dependence upon technology grows I worry about what that means for us. Will we remember less and less, becoming ever less functional? For me, this is a periodic issue when I take a trip in a modern car. Most days my antique vehicle keeps me sharp with its foibles and curiosities. But, what does all this mean for the rest of you fortunate enough to drive modern cars daily?

Are we really better off? Do we really need these technology solutions like "rear seat reminders?"

Sunday, June 19, 2016

A Conundrum of Medicine

Years ago, I was called upon to defend a malpractice case brought by a former prisoner. He alleged that during his incarceration he had presented to a correctional facility for medical care. Following his discharge, he had received a different diagnosis than was rendered during his incarceration. On the basis of that difference, a lawsuit was filed, accusing the doctors at the facility of malpractice for failing to make the same diagnosis. Despite his many complaints to the prison infirmary, he was not seen by specialists and did not undergo extensive testing. His lawsuit after release alleged these amounted to malpractice. 

The details of that litigation came back to me recently when I read Inmate Can Sue Prison Officials for Allegedly Ignoring Injury on WorkCompCentral.com. This is a story of a Kentucky inmate who was in the course of a work assignment when he broke his back. He is suing the prison officials for being "indifferent to his condition."

The United States has a system in place specifically for such injuries, called the "Inmate Accident Compensation Act," and this inmate received compensation from it. However, he is seeking damages for "violation of his constitutional rights" as he recovered from the injury. Prison officials sought to have his case dismissed, using the compensation act as a shield. A federal court denied that. 

The focus of the article is this action for damages that is reminiscent of civil rights damage cases. It also provides some detail of the accident, which bear review. The inmate fell from a ladder while cleaning a prison kitchen. Falls are a serious safety risk. The CDC says the direct cost of medical care for falls is tops $34 billion annually. Hundreds of thousands are hospitalized for resulting injury; the most prevalent are hip and head injuries. 

This inmate landed on his back following this fall from a ladder. Initially, he claimed he was "unable to feel his feet or legs." He was "able to get up," within minutes. However, he claimed his "pain was a '12' on a scale of one to 10." 

He was seen in the facility medical clinic by a physician's assistant. The diagnosis was "muscle spasm" and he was returned to normal activities with some ibuprofen. A notable allegation in the civil rights litigation is the inmate's claim that he asked for an x-ray, but was denied. The inmate complains that his condition worsened, and within days he was incapable of arising from bed. His conservative care continued for "over six months," with medical personnel incredulous about the severity of his injury and abilities. 

The current litigation is against the federal prison officials for violation of "his Eighth Amendment rights by ignoring his medical needs." The lawsuit also includes "claims for violations of his rights under the First, Fifth and 14th amendments." His pro-se litigation was initially dismissed, but revitalized by the 6th Circuit Court of Appeal. 

The Court reasoned that the statutory limitation is not a prisoner's exclusive remedy for any and all claims, though it is the "exclusive remedy for an inmate's work-related injuries." In concluding the law does not foreclose all claims, such as these for constitutional relief, the Sixth Circuit's decision is consistent with prior decisions in the "7th, 9th and 10th circuits."

The case is interesting from a variety of perspectives. Obviously, the exclusive remedy comparison with workers' compensation makes it interesting. Of course, the fact that falls are so prevalent, and result in such dramatic medical costs is also interesting. The focus of employers on safety issues in this regard is easily understood in light of this significant potential harm. At conferences, I hear much about "fall protection" and that makes a world of sense in light of the potential outcomes. 

But, another subject is perhaps less noticed in this story, and was present in the malpractice case so many years ago. That is the subjective element of physical complaint in personal injuries. In this story, there is mention that the patient "broke his back." Unfortunately, that phrase could be used to describe a variety of actual medical conditions, and we are left without significant detail as to the diagnosis and what care would have been appropriate. The actual severity of the injury remains unexpressed by the press, and would provide context to the discussion. 

We might conclude, however, a few points. First, when there is blunt-force trauma to the body, most patients expect to be x-rayed. In many depositions over many years, I have heard multiple medical perspectives on this. Most physicians have insisted that such x-rays are critical in eliminating potential injuries from the analysis. This is less pervasive an opinion in back injuries that do not involve trauma, such as lifting injuries. 

But, with the cost of x-ray as low as it is, and with the prevalence and availability of such machines, it seems to most a prudent step in the diagnostic process. Though I am not a doctor, and though my experience in this regard is in no way a scientific sampling, this is the consensus impression with which I have been left. Should it matter that most people simply expect an x-ray, and would be as relieved to learn of a negative result as they might be concerned with a positive?

Second, there are a population of symptoms that are simply difficult. One of those insinuated in a huge population of injury situations is pain and discomfort. I have met a few people over the years who allege a pain level of 10 on a scale of 1 to 10, but this article describes the first one I have heard of that rated his pain a "12." Health Central provides a definition of the pain scale that is reasonably consistent to descriptions I have heard over the years. They define "10" as "Unspeakable pain. Bedridden and possibly delirious. Very few people will ever experience this level of pain." With that in mind, I have no idea what a "12" might be. 

This illustrates a potential complication with pain. When expressing the extent of pain, there is always the potentiality that a patient might overstate. This could be a conscious effort to mislead or exaggerate. It might be intended to precipitated more medical care, greater sympathy, or more stringent activity restrictions. There are even instances in which such exaggeration might be intended to procure stronger or longer pain medications. Expressions of pain, therefore, may be looked upon with some skepticism. 

But, it is also possible that such exaggeration may not be exaggeration at all. It is entirely possible that people perceive pain in their own way, that pain is a very personalized issue. There is medical evidence to support this conclusion. Some would argue in this context, though, that such perception issues should be expected to influence whether you as an individual are at a "10" or a "1" or somewhere in between, but should not change the "1 to 10" scale into a "1 to 12" scale. There is some merit in that. Does exaggeration beyond the offered range of "1 to 10" help to convey the true perceived pain severity or does it suggest to the physician a lack of credibility for the patient?

And finally, should we consider the role of physicians in the process? There seems to be a tendency to engage physician's assistants (PA), nurse practitioners and others in the treatment process. A stated rationale is the cost savings that may result from such involvement. This may seem to some to be illusory, however. A non-workers' compensation patient related to me that her/his family physician referred to a specialist to rule-out some issues and for a second opinion. The patient's  co-pay at the family physician is $25 and at any specialist is $40. The patient was surprised then to find that the $25 payment resulted in seeing a physician and the $40 visit to the specialist garnered only the attention of a PA. Why does it cost a patient more to see a PA at a specialist's office than to see a family physician medical doctor?

And, when the patient complaints are ongoing, should there be some tendency to return to the basics such as an x-ray? Should there be a reaction to engage a specialist for further evaluation and or diagnostics? And, in the end, will we admit that there are some things that medical science just does not understand? The patient described above with the $40 copay has never had relief of symptoms, nor even a plausible diagnosis of the physical complaints described. She/he has followed medical advice, undergone tests, swallowed various remedies, and the results have been precisely nothing, except money expended and time spent. Does that mean that no malady exists, the patient is a "malingerer." Or, does it just mean that science at this point cannot find a malady or cause to which it can point?

It is possible that her/his physical complaints are results of undiagnosed, as yet, conditions. It is also possible that those complaints are simply something that, as yet, the various medical specialists simply do not understand. And thus, we conclude with the fact that medical science, professionals, testing, and patients are imperfect. Just as imperfect as the rest of us. There will be human dynamics and imperfections interwoven into any complaints of physical pain, discomfort, or dysfunction. These will be present, and there will be challenges that result. The question will be how systems, science, processes and humans, deal with these human challenges.