legislation


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Well, this comes as no surprise. With Republicans now controlling the Senate, House and White House, they have decided that they didn’t really mean what they said about states’ rights. And they didn’t really mean what they said about personal responsibility.

Out of the House of Representatives, courtesy of Rep. Steve King of Iowa, comes a bill (H.R. 1215) to grant immunity to doctors and hospitals if they negligently injury someone.

Given that 210,000 to 440,000 are estimated to die each year from medical malpractice  — a number that dwarfs the 30,000+ killed by guns — you should care about the subject.

Cynically named as a bill to “improve patient access to health care services” by “reducing the excessive burden the liability system,” the King bill slams an artificial cap on awards for pain and suffering at $250,000 in both federal and state cases, among many other things.

Did the hospital negligently operate on the good leg instead of the bad one? 250K.

Did you lose the good leg? The same 250K.

Did you also lose your previously bad leg because they operated on the wrong  one? The same 250K.

And it comes as no surprise to anyone that lawyers won’t actively jump at the chance to spend hundreds of hours and tens of thousands of dollars on a suit that is so artificially limited. Thus, de facto immunity for most pain and suffering causes of action from medical malpractice.

How does King go all federal on this, going deep into what is most often a state cause of action? By stating that it will apply to anyone that receives health care through a “federal program, subsidy, or tax benefit.” [Copy Of Bill] That means anyone who uses Medicaid, Medicare, veterans health plans or Obamacare.

And by “tax benefit,” it may mean anyone who has a deduction for healthcare of any kind.  Essentially, the idea is to make sure that no one, anywhere in the country, can ever bring a meaningful action for medical malpractice.

The losers in this, of course, are the patients and their families who have already been injured once. And the taxpayers, who are now forced to pick up the tab for the rest of the loss.

King’s bill is based on a faulty premise, that doctors and hospitals order unnecessary tests to protect against malpractice claims. This is the “defensive medicine” theory of why medical costs go up.

But that theory was tested in Texas, and found to fail. As I noted in 2011, the $250,000 Texas cap didn’t stop medical increases. In fact, costs went up faster in Texas than in states that didn’t have a cap.

While doctors may have saved money with fewer suits, and insurance companies may have made buckets more money, it didn’t stop health care costs from rising.

The Texas Experiment also was also supposed to bring more doctors to Texas and more to rural counties. It didn’t work.  Even noted tort reformer Ted Frank wrote, in 2012, that the data from Texas “substantially undermines the empirical case for the conventional wisdom that Texas’s 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas.” Ouch.

Frank went on to conclude:

I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that.

The real kicker to the artificial caps, of course, is that the taxpayers then get saddled with the costs of the injured person instead of the ones that negligently caused the injury. That’s right, saddling the taxpayers with the costs is a form of socialism. And it is being promoted by alleged conservatives.

The myth that tort “reform” reduces costs was debunked awhile ago. As Steven Cohen noted in Forbes two years ago regarding additional studies, there was no reduction in the expensive tests from states with caps:

That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.

Cohen went on to summarize that none of the “expected” reductions in health care costs came to fruition:

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

Trump is now on the bandwagon also, or at least whoever wrote this portion of his speech last night:

“Fourthly, we should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance — and work to bring down the artificially high price of drugs, and bring them down immediately.”

This oblique reference — Trump never deals in details — was presumably put there by his staff, as I know of no other Trump comment on the subject of medical malpractice.

But wait, there’s more! Tort “reform,” you see, has never saved a life. But has it ever killed anyone? Answer, yes!

I addressed that subject a few year back by pointing to plunging payouts at Columbia Presbyterian Hosptial / Cornell Weill Medical Center. A study found that “instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.”

How much did they save by instituting new safety procedures — in pure dollars and cents leaving aside the human misery of injury? “The 2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000).”

You read that right: 99.1% drop. Based on a safety program, not tort “reform.”

Now if Congress wants to take away the incentive for safety, and just give immunity, you can expect continued deaths. The results should have been screamed from the rooftops:

Safety improvements = fewer malpractice payments and healthier patients.

Tort reform = more patient deaths.

Now let’s return to politics, shall we? I just want to close by asking conservatives a few questions, and do so with the knowledge that medical protectionism has already been a proven failure in reducing health care costs:

1. Do you believe in limited government?

2.  Is giving immunity your idea of limited government?

3.  Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?

4.  Do you believe in personal responsibility?

5.  Do you want to limit the responsibility of negligent parties and shift the burden to taxpayers?

6.  If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to authorize to cover those costs?

7.  Is shifting the cost of injuries away from those responsible, and on to the general public, a form of socialism?

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This video shows the Tesla driving itself.

https://www.tesla.com/videos/full-self-driving-hardware-all-tesla-cars?curator=thereformedbroker&utm_source=thereformedbroker

Is driving purely functional, A to B, or is it also entertainment? I ride my bikes not to get to A to B, although that can be true, but for the sheer joy of riding a bike as fast as I can to my ability.

I’m assuming that you [currently] can choose which mode to put the car in. However, how long will it be before government mandates only the car can drive. No issues about speeding, drink driving, etc. Of course then all you need is a box on wheels.

Will you pay a premium for your box. Hell no.

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“Investors’ personal views on climate science are irrelevant.

Enough governments and businesses are convinced by the scientific consensus that the threat is real, and are driving regulatory and technological changes that are reshaping the investment landscape. You may not be interested in the climate, but you can be sure the climate is interested in you.” — Financial Times

Our changing climate is having real-world effects.*

Miami Beach, Florida, is experiencing increased flooding as a result of rising sea levels. All along the Eastern Seaboard in the United States, cities, towns — even naval bases— are battling an array of problems caused by increased coastal flooding and encroaching tides. Indeed, some scientists speculate that Manhattan — an island, by the way — could at some point find itself under water.

The global climate has always been in flux. But historically changes have taken centuries, even millennia, to manifest themselves. We have not, as yet, ever confronted the sort of severe shift that current climatological models suggest may lay in store.

Investment managers need to be evidence-based, and the evidence is now very clear:

“’Once impacts become noticeable, they’re going to be upon you quickly,’ said William V. Sweet, a scientist with the National Oceanic and Atmospheric Administration, who is among the leaders in research on coastal inundation. ‘It’s not a hundred years off — it’s now.’”

Academic finance has started to research the issue. In “Price of Long-Run Temperature Shifts in Capital Markets,” Ravi Bansal, Dana Kiku, and Marcelo Ochoa examine the social costs of carbon emissions. They note that “temperature risks have a significant negative effect on wealth.” Each of the US equity portfolios they examine had a negative exposure, or beta, to long-run temperature fluctuations. This implies a rising risk-free rate and an equity-risk premium.

Many institutional investors now adjust for environmental, social, and governance (ESG) factors, and Morningstar recently began publishing ESG grades for the 20,000-plus funds it covers. While climate change is included among the 20-plus factors Morningstar grades, the phenomenon warrants a category of its own.

BlackRock has also conducted climate change research. In “The Price of Climate Change: Global Warming’s Impact on Portfolios,” the authors discuss the potential influence changing carbon regulation could have on various industries. They note that the insurance sector has already begun to incorporate rising global temperatures into its pricing models. For the larger investment industry, however, the threat of global warming has yet to hit home:

“Most industries lag insurers when it comes to properly accounting for and pricing risks of climate-related events. Many equity investors ignore climate risk, and credit investors and ratings agencies do not routinely assess it. Property markets often ignore extreme weather risk, even in highly exposed coastal areas. Most asset owners do not measure their exposure to potentially stranded assets such as high-cost fossil fuel reserves that may have to be written off if their use is impaired by climate change regulation.”

BlackRock asserts that these effects are not currently priced, but will be very soon. Proactive investors should anticipate that. This is not to say that climate change’s impact will be uniformly bad. As with any wrenching change, there will also be opportunities along the way. Just as investors in fossil fuel-dependent companies must weigh the risks, investors in alternative energy or mitigation services companies could very well profit.

Though global warming could have devastating consequences worldwide, it does not mean investors should concentrate investments in landlocked, temperate nations. It does require that we carefully consider the phenomenon’s potential long-term effects. No part of the planet is immune and some regions will be more affected than others.

The real reason to diversify globally is not to avoid or mitigate short-term market blips, but rather to protect against economic catastrophes concentrated in our home markets,Clifford S. Asness, Roni Israelov, and John M. Liew observe. Investors should be especially mindful of this when it comes to climate change.

The environment’s margin of safety is narrowing with each uptick in global temperatures. This will translate into greater effects on investor portfolios. It is the job of the investment manager to cushion against those risks while still seeking profitable opportunities.

I posed the following question in a recent blog post: “What idea in finance today, that we hold to be true, will seem laughable in 100 years?”

In a century’s time, it may very well be laughable that we did not take the risks of global warming more seriously when considering our investments.

 

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Crimes Act, s22(1),

No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.

This is the section that my appeal case rests on. To strengthen the appeal, it would help to read the “or” between ‘wrong’ and ‘contrary to law’, conjunctively so that two conditions pertained.

Pioneer Concrete (UK) Ltd v National Employers Mutual General Insurance Ass. [1985].

The clause under consideration:

‘The Insured shall give written notice to the Head Office or Branch Office of the Association of any accident or claim or proceedings immediately the same shall have come to the knowledge of the Insured or his representative.’

Wilberforce J.

The obvious commercial purpose of the clause is to enable the insurer to perform his role as a dominus litis and to investigate accidents and claims at the earliest possible opportunity, and that purpose would clearly be frustrated by the construction contended for. I do not, furthermore, regard the construction, even on the words used, as being a necessary or proper one, since the word ‘or’ is not infrequently used in a conjunctive sense, and that is clearly indicated by the purport of this clause to be the correct sense. It cannot, accordingly, in my judgment, be held in this case that the insured or the plaintiffs on his behalf have satisfied condition (1) by giving notice to the insurers of the accident or a claim.

So the context is the critical factor. But context is largely driven by purpose, particularly where it is a legislative clause under consideration.

There is also a ‘purposive’ argument. The legislature’s purpose was to protect children from culpability under the criminal law. Mens rea [intent] is a critical component of the criminal law for adults and must be proven by the Crown.

The purpose of s22(1) is whether the child actually has the intellectual capacity to form ‘mens rea’ in the first place, that is to say, the purpose of s22(1) is protective of the child. If that argument is accepted, then, it makes an additional argument that the ‘or’ is to be read conjunctively, as this then provides two conditions to fulfil, which increases the burden on the Crown.

Now, if the court accepts these arguments, then I have a reasonable chance of winning the case.

 

 

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The famous quote from Ronnie Reagan.

Small Business Number One Problem Table1

Legislation, taxes, the bane of free enterprise.

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Having transformed war, drones are getting ready to transform peace. A year ago Obama ordered the Federal Aviation Administration (FAA) to expedite the process of integrating “unmanned aerial vehicles,” as drones are primly referred to within the trade, into civilian airspace. Police departments will use them to study crime scenes. Farmers will use them to watch their fields. Builders will use them to survey construction sites. Hollywood will use them to make movies. Hobbyists will use them just because they feel like it. Drones are an enormously powerful, disruptive technology that rewrites rules wherever it goes. Now the drones are coming home to roost.

The State is extending one of its war machines into civilian, non-war, home based use against its own civilian population. Nice.

The U.S. government’s position is that it declines on national-security grounds to declassify the full legal justifications for its covert drone attacks; so far that position has withstood a legal challenge. But whatever their legal validity, the practical effectiveness of drone strikes is undermined by their tendency to outrage and radicalize populations against the U.S. As controversial as it is, there was heartwarming bipartisan agreement in last fall’s presidential election that American drone policy wasn’t going to be seriously discussed by either candidate. It’s possible that the elevation of Brennan to head of the CIA will bring about greater transparency and public accountability. Brennan has pushed for both. Critics of the drone program say his close involvement in the development of the current drone campaign doesn’t set a great precedent.

Bottom line: the U.S. seems to be struggling to adapt its 20th century moral code of warfare to the 21st century practice of sending flying robots into other countries to kill people. It appears that drones are evolving faster than Americans’ ability to understand how, legally and ethically, to use them.

Of course, what goes around, comes around. The technology will once it is in the public domain very easily and quickly be picked up by the ‘enemies’ who, will of course use the technology against US/UK civilian targets. Once the genie is out of the bottle, it becomes hard to put him back.

U.S. Customs and Border Protection has been using Predators to monitor the Mexican border since 2005. It currently fields a fleet of 10 and has put in for 14 more. Last fall, NASA used a Global Hawk to study Hurricane Nadine. But flying a drone for purposes other than recreation requires a certificate from the FAA, and those certificates are hard to come by. The government is working to correct that: last Valentine’s Day Obama signed the FAA Modernization and Reform Act, which among other things ordered the FAA to establish six drone-testing ranges, fast-track requests for permission to use drones and figure out a scheme for their integration into U.S. airspace by 2015.

Until actual legislation is passed, it won’t be completely clear what information the government can and cannot gather using drones. There are certainly precedents: the Supreme Court has ruled that the police can, under the Fourth Amendment, fly an airplane over your fenced backyard and check out whether you’re growing pot back there. It’s not a giant leap to imagine them flying a drone instead. But where does it stop? The framers didn’t anticipate technology that could hover for days, keeping an eye on exposed backyards and porches, that could work in networked swarms, see through walls with thermal imaging, recognize faces and gaits and track license plates. “If we have a bad guy named Waldo,” Singer says, “and we have to find Waldo somewhere in that city, we will naturally gather information about all the people around Waldo, not out of malice but just because that’s the way it is. What happens to that information? Who owns it? Who stores it? Who shares it? Big questions.”

I’m now involved in my third employment case. Would you believe another Security Co? The state of affairs with private security in NZ is parlous indeed. I am becoming quite familiar with the “Employment Relations Act 2000”.

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