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Medicine in the New Millennium: A Self-Help Guide for the Perplexed

Published online by Cambridge University Press:  24 February 2021

David A. Hyman
David A. Hyman*
Affiliation:
University of Maryland School of Law
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Extract

When Austin Powers, ace British secret agent, is thawed out after thirty years of suspended animation, he is greeted by his old boss, accompanied by a Russian general. Powers is alarmed by the presence of the Russian general, and complains about the breach of security. Powers' boss tells him “a lot's happened since you were frozen. The Cold War is over.” Powers thinks for a moment, and then responds, “finally those capitalist pigs will pay for their crimes eh, eh comrades, eh?“ His boss gently interrupts, and informs Powers that “we won.” Powers clumsily responds, “Oh groovy, smashing, yeah capitalism,” his tactlessness prefiguring his behavior through the rest of the movie. Despite Powers' noteworthy skills as a secret agent, he has foolishly disregarded the first rule of forecasting the future: don't be around when your predictions are assessed for accuracy and completeness.

Type
Articles
Information
American Journal of Law & Medicine , Volume 26 , Issue 2-3: The Changing Face of Law and Medicine in the New Millennium , 2000 , pp. 143 - 154
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2020

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References

1 Austin Powers: International Man of Mystery (New Line Cinema 1997).

2 For some impressive lists of utterly wrong predictions, see e.g., From Steam Trains to Computers, How the Forecasters Got it Wrong, The Express, Jan. 1, 2000, available in 2000 wl 2326508; Hits and Misses: Predicting Future can be Risky Business: Even “America's Best Minds” at the End of the 19th Century Couldn 't Foresee the Changes Ahead in the Next 100 Years, Greensboro News & Rec, Feb. 4, 2000, at Dl. These lists include the predictions that the telephone should not be taken seriously as a means of communication, that radio has no imaginable commercial value, that heavier-than-air flying machines are impossible and that the world market for computers totaled “about five.” I make no representations about whether the identified individuals actually made the predictions in question, or whether this is just another urban legend.

3 See Michael Heise, The Importance of Being Empirical, 26 Pepperdine l. Rev. 807, 810-12, 818-19 (1999) (noting the dominance of theory in legal scholarship and suggesting that falsifiability of empirical scholarship is its greatest strength; “legal theorists can advance their theoretical work and sleep nights with greater comfort knowing that they will not wake up the next morning to find their work challenged in a subsequent article by a scholar who cannot, for example, replicate the original findings.").

4 See id. at 819. (“Many current leading scholars agree that empirical legal scholarship garners less prestige than its more theoretical counterpart . . . [t]hus, in order 'to get the richest rewards available within the modern legal academic community a professor has to do 'theory.'”') (quoting Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1, 10 (1998)). Professor Saul Levmore made a similar claim for normative scholarship at a recent colloquium at the University of Texas School of Law, noting that “the treasures of our profession are reserved for those who make normative claims."

Futurism with a shiny normative veneer will hopefully be mistaken for the former category (normative meta-theory) and not the latter (empirically falsifiable predictions). At least that's my story, and I'm sticking to it.

5 Charles A. Reich, The New Property, 73 Yale l.j. 733, 786 (1964).

6 John Harrison, Richard Epstein 's Big Picture, 63 U. Chi. l. Rev. 837, 839-40 (1996).

7 See Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 Chi.-Kent l. Rev. 751, 760 (1996). See generally Charles A. Reich, The Individual Sector, 100 Yale l.j. 1409 (1991) (asserting the need for a Constitutionally protected sector of individual rights as a way of protecting individual autonomy from government power); Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale'L.J. 1245 (1965) (asserting the need for recognition and study of welfare recipients' legal rights).

8 Of course, the year 2000 does not mark the start of a new millennium. I have previously noted the inability of lawyers and law professors to do basic addition and subtraction. See David A. Hyman, Patient Dumping and Emtala: Past Imperfect/Future Shock, 8 Health Matrix 29, 29 n.l (1998).

9 Let's not even talk about the hubris of the editors who dreamed up the subject. On the other hand, they could have asked for a retrospective look at the past millenium, which is an even more daunting prospect, unless one is really inclined to reserve judgment. See Antonin Scalia, How Democracy Swept the World, Wall ST. J., Sept. 7, 1999, at 24.

If the turning of a millennium serves any purpose profitable to those of us who are not computer programmers, it is to help put things in perspective. The Western mind, at least, is not prone to assess the sweep of history with the degree of remove displayed by the Chinese reader (in the version I heard it was Mao) who, when asked by an American visitor (Nixon) what he thought was the impact of Napoleon upon the world, replied that its too early to tell.

Id.

10 See Kurt Andersen, The Next Big Dialectic, N. Y. Times, Nov. 28, 1999, §4, at 11.

I've always been skeptical of people who predict the future professionally . . . [fjor one thing, it's pretty much impossible to make confident predictions without sounding portentous and creepy. And purporting to describe the warp and woof of life 100 years from now is an extreme folly. On the other hand, the time frame insures that no one will be able to tell me I was wrong if, in 2100, it turns out I was wrong.

Id.

11 Jack M. Balkin & Sanford Levinson, How to Win Cites and Influence People, 71 Chi.-Kent. L. Rev. 843, 846-47(1996).

12 Although the popularity of such books on best-seller lists suggests that most Americans are aware of the self-help phenomenon, it seems probable that many law professors are unaware of this development—and with good reason. In my experience, few law professors believe there is anything about them that can be improved. In like fashion, the scholarship that one likes (including, by definition, one's own) is defined as analytical, while the scholarship that one doesn't like is dismissed as descriptive. However, the operative dividing line between the two is essentially, “I know it when I see it.” Given these pathologies, law professors are an unlikely target market for a self-help book, unless, of course, the title is something like, I'm Tenured and Analytical, You're Untenured and Descriptive.

13 See, e.g., Henry T. Greely, Ebenezer Scrooge Meets the American Health Care System, 1998 U. ILL. L. REV. 727,751 (1998).

Individual charity may or may not have been sufficient to help the poor of mid-nineteenth-century London or to provide medical care in early twentieth-century America. It seems clearly insufficient to the task of protecting even those Americans currently without health coverage, let alone the millions more who would be added to that number in a Mortal Peril health system.

Id.

14 For obvious reasons, I do not view lack of ability to pay as a market failure—but regardless of one's assessment of that issue, it seems unlikely that this explanation is the correct one, given the relatively modest cost of publishing and comparative wealth of the groups in question.

15 To be sure, there are problems with self-help guides and the therapeutic worldview. See generally Wendy K.Aminer, I'M Dysfunctional, You'Re Dysfunctional (1992) (characterizing self-help programs as conformist, authoritarian exercises); Susan Baxter, The Last Self-help Article You '11 Ever Need, Psychology Today, Mar. 1993, at 70, 70 (“To err is dysfunctional, to forgive codependant”).

16 William Shakespeare, The Tragedy of Julius Caesar I, ii, 138-40. (“Men at some time are masters of their fates: The fault dear Brutus, is not in our stars, But in ourselves, that we are underlings.”). Admittedly, William Shakespeare happens to be (a) dead, (b) white, (c) European and (d) male, but so what? Anything I can do, he can do better—and Willie has the same comparative advantage over every reader of this footnote. And let's not mention Jane Austen, who only manages to score a trifecta of being dead, white and European, but still gives Willie a run for his money. Those interested in a more monetized measure of popularity should examine the recent trend to base movies on Jane Austen novels both traditional (e.g., Emma. Sense and Sensibility, Persuasion) and updated (Clueless). Willie only scores one in each category (Shakespeare in Love and Ten Things i Hate About You), but Shakespeare in Love won seven Oscars. Gwyneth Paltrow managed to score a double-play by starring in both Emma and Shakespeare in Love, winning an Oscar for the latter.

17 See Timothy S. Jost, The American Difference in Health Care Costs: Is There a Problem? Is Medical Necessity the Solution?, 43 ST. Louis U. L.J. 1, 4-5 (1999); Deborah Stone, The Counterrevolution?: Managed Care and the Second Great Transformation, 24 J. Health Pol., Pol'y & L. 1213, 1214 (1999); National Health Expenditures (visited Mar. 27, 2000) <http://www.hcfa.gov/stats/nhe-oact/>.

18 See generally David A. Hyman & Charles Silver, The Case for Result-Based Compensation in Health Care (unpublished manuscript, on file with author) (analyzing limited use of contingency fee arrangements in health care delivery and advocating in favor of greater use).

19 See Council on Ethical and Judicial Affairs, am . Med. Ass'n, Code of Medical Ethics 6.01 (1994). “A physician's fee should not be made contingent on the successful outcome of medical treatment. Such arrangements are unethical because they imply that successful outcomes from treatments are guaranteed, thus creating unrealistic expectations of medicine and false promises to consumers.” Id.

20 See Hyman & Silver, supra note 18.

21 You know it, I know it, ESPN, which named Jordan the greatest North American athlete of the 20th century, knows it as well, so why the hell are you looking at this footnote? See ESPN, Sports Century (last modified May 15, 2000) <http://www.espn.go.com/sportscentury). For the footnote obsessed, Jordan's accomplishments include two-time College Player of the Year (1983, 1984); National Basketball Association (NBA) Rookie of the Year (1985); NBA All-Rookie Team (1985); captain of six Chicago Bulls NBA championship teams (1991-93, 1996-98); five-time NBA Most Valuable Player (MVP) (1988, 1991, 1992, 1996, 1998); six-time NBA Finals MVP (1991-93, 1996-98); MVP of the 1988, 1996 and 1998 NBA All-Star Games; holds NBA Finals single-series record for highest points-per-game average (41.0); nine-time all-NBA First Team (1987-93, 1996-97); nine-time NBA All-Star (1985-93); NBA defensive Player of the Year (1988); eight-time NBA All-Defensive First Team (1988-93, 1996-97); three-time NBA Steals Champion (1988, 1990, 1993); two-time Gatorade Slam Dunk Champion (1987, 1988); career record for highest points-per-game average (33.2); record for most seasons leading the league in scoring (10); shares record for most consecutive seasons leading the league in scoring (7) (1986-87 through 1992-93); member of the gold medal-winning 1984 and 1992 United States Olympic basketball teams; all-time leading scorer for the Bulls; NBA All-Star Game career record for highest scoring average (21.1 points-per-game).

Most of the footnote obsessed have long since given up, which is the economically rational thing to have done. Those who are both footnote obsessed and economically irrational are wondering what's going on. Wasn't this an article about health care law and policy? However, I am in good company in getting lost in the minutiae of a sport. See Flood v. Kuhn, 407 U.S. 258, 260-64 (1972) (upholding reserve clause in professional baseball after several paragraphs listing great baseball players of yore). Bowie Kuhn went on to further fame in the legal world when he became the name partner in the firm Myerson & Kuhn, which succeeded the storied but imploding Finley, Kumble, Wagner, Heine, Unterberg, Manley, Myerson & Casey. Myerson & Kuhn ultimately declared bankruptcy, and when Kuhn testified in Myerson's fraud trial, it turned out that he knew essentially nothing about the operations of the firm which bore his name—no great surprise to those who followed his career as Commissioner of baseball.

22 The lyrics to the commercial are available online at Be Like Mike Lyrics (visited Feb. 24, 2000) <http://webhome.idirect.com/~zelda/lyrics.html>. Of course, the empirically falsifiable reality is that millions of gallons of Gatorade later, there is only one Michael Jordan.

23 See David A. Hyman, Consumer Protection and Managed Care: Should Consumers Call 911?, 43 Vill. L. Rev. 409, 415-20 (1998).

24 See id. at 414-17.

25 See id. at 419.

26 See, e.g., David A. Hyman, Regulating Managed Care: What's Wrong with a Patient Bill of Rights, 73 S. Cal. L. Rev. 102, 102 (2000); David A. Hyman, Drive-Through Deliveries: Is “Consumer Protection” Just What the Doctor Ordered?, 78 N.C. L. Rev. 5, 7 (1999); David A. Hyman, Managed Care at the Millennium: Scenes From a Maul, 24 J. Health, Pol., Pol'y & L. 1061, 1061 (1999).

27 See Hyman, Drive-Through Deliveries: Is “Consumer Protection” Just What the Doctor Ordered?, supra note 26, at 31; Hyman, Managed Care at the Millenium: Scenes From a Maul, supra note 26, at 1068.

28 See Hyman, Drive-Through Deliveries: Is “Consumer Protection” Just What the Doctor Ordered?, supra note 26, at 7.

29 See, e.g., Agency for Healthcare Research and Quality, Evidence-Based Practice Centers (visited Feb. 15, 2000) <http://www.ahcpr.gov/clinic/epc> (noting that the Agency for Healthcare Research and Quality has established 12 evidence-based practice centers which will, among other things, produce evidence reports that public and private sector organizations may use as the basis for their own clinical guidelines and other improvement activities).

30 On the other hand, there is at least one market test of the probable development of this area of the law, regardless of legislative action. For several years, the University of Texas has offered a continuing legal education course on how to sue a managed care organization. During the first few years, several hundred attorneys attended. In the last year, attendance dropped by more than half, even though Texas adopted the nation's first managed care liability statute. See Tex. Civ. Prac. & Rem. Code Ann. § 88.002(a) (West Supp. 2000).

31 But see David A. Hyman, Accountable Managed Care: Should We Be Careful What We Wish For?, 32 U. Mich. J.L. Reform (forthcoming, 1999).

Lawyers and judges find it comforting to believe that legal rights are both necessary and sufficient to ensure accountability. That perspective is a self-aggrandizing fantasy; for both consumers and vendors, alternative institutional arrangements are often a far more cost-effective way of accomplishing their mutual objectives, including (but by no means limited to) the appropriate quantum of accountability.

Id.

32 See Peter D. Jacobson, Legal Challenges to Managed Care Cost Containment Programs: An Initial Assessment, Health Aff., July-Aug. 1999, at 69, 73-75.

33 18 U.S.C. § 1100 (West Supp. 1998).

34 See Herdrich v. Pegram, 154 F.3d 362, 380 (7th Cir. 1998), cert granted, 1999 U.S. Lexis 4742(1999).

35 See Herdrich v. Pegram, 170 F.3d 683, 686 (7th Cir. 1999) (Easterbrook, J. dissenting) (denying rehearing en banc).

36 This is by no means a new criticism of Judge Coffey. See Chicago Council of Lawyers, Evaluation of the United States Court of Appeals for the Seventh Circuit, 43 Depaul L. Rev. 673, 731-32(1994):

[T]he Council believes that Judge Coffey's performance as a circuit judge is lacking in a number of significant respects. Judge Coffey's opinions are almost invariably written forcefully in favor of a particular result and they also typically treat that result as being clear and beyond dispute. There are, of course, many cases of exactly this type. . . . But there are also many cases where either the legal rules or the facts are not so black-and-white. Judge Coffey's opinions rarely acknowledge serious factual or legal uncertainties, however. . . . The cost of Judge Coffey's failure to acknowledge the difficulties or ambiguities presented by a case, and his failure to acknowledge at least the legitimacy of competing arguments and concerns, is that his opinions at times appear result-oriented. . .. Some of Judge Coffey's opinions appear to be heavily influenced by his personal values and biases to an extent that casts considerable doubt upon his ability to apply the law fairly in certain areas.

Id.

37 Herdrich, 154 F.3d at 375.

38 See Dick Armey, Dick Armey Reading Room, Armey's Axioms (visited Feb. 18, 2000) <http://armey.house.gov/axioms.htm>.

While the concept of the invisible hand of the marketplace is well-understood (if too often ignored), we also need to recognize and accept the visible foot of the market, which plays a necessary role in eliminating inefficient industries. Even more important, we must understand that there is an invisible foot of the government too, which generally does unnecessary damage even as the visible hand of the government seems to do good.

Id.

39 See Reinhardt, Uwe E., “Efficiency and Civility in Maternity Care” or “How Much Jello Can a Mother Eat? ”, 56 Med. Care Res. Rev. 47, 54 (1999)Google Scholar.

Eventually Americans in all walks of life will learn that the much celebrated Invisible Hand can do its work responsibly in the private health care market only if the sundry actors in that market are firmly guided by periodic kicks to their posteriors from what Congressman Dick Armey has derided as the government's 'Visible Foot.'

Id.

40 Jean Latz Griffin & Jaqueline Heard, Tree-Planting Idea Not Yet Fully Grown, Chi. Trib., Aug. 10, 1996, at 5.

41 See Lawrence D. Brown, Public Health and the Missing Body Politic, Health Aff., Sept.-Oct. 1997, at 215, 217 (reviewing and quoting Dan E. Beauchamp, Health Care Reform And The Battle for The Body Politic (1996)).

Plain people have come to view their democratic populist proponents and protectors as part of the problem. The civic institutions that Beauchamp favors would 'reorganize entire sectors or activities of society, reallocating responsibilities, changing how people think about things and how politics . . . works' (p.87). Health care reform must be a subset of true progressive politics, which . . . 'must be about transforming social relationships, developing popular consciousness, enhancing people and their everyday lives' (p. 148). One need not be Newt Gingrich to find this game plan spooky. .. .

Id.

42 Top Gun (Paramount Pictures 1986).

43 My scholarly work was described at a conference using precisely those words by one of the co-authors of a textbook on health law. Bonus points for guessing which textbook and double bonus points for guessing which author. And I thought the Irish potato famine was caused by blight! See also George J. Stigler, The Ethics of Competition: The Unfriendly Critics, in The Economist as Preacher and Other Essays 27, 29 (1982) (“One is reminded of Schumpeter's remark that the Japanese earthquake of 1924 had a remarkable aspect: it was not blamed on capitalism.”). It is tempting, but ultimately unhelpful, to respond to such “argument by invective” in kind. Instead, why not a few empirical tests of the virtues of progressive regimes? To what extent have progressive regimes protected a free press or free speech? Are progressive regimes better known for their agricultural productivity or their secret police? How about the capacity of progressive regimes to better the lives of the citizenry by encouraging wealth creation? And what about the most fundamental of all civil liberties, the right of citizens not to be killed by their own government without due process of law? The last time I checked, the death toll of the communist and socialist regimes (why the universal reluctance to kill progressive regimes by their true name?) was at 100 million and counting— approximately one hundred times the number who died during the Irish potato famine. P.J. O'Rourke concisely describes the implications of disregarding the record of progressive regimes when it comes to matters of life, liberty and the pursuit of happiness:

Civilization is an enormous improvement of the lack thereof. No reasonable person who has had a look at the East Bloc (or an issue of the Nation) can countenance the barbarities of the Left...So-called Western Civilization, as practiced in half of Europe, some of Asia and a few parts of North America is better than anything else available. Western Civilization not only provides a bit of life, a pinch of liberty and the occasional pursuance of happiness, it's also the only thing that's ever tried to. Our civilization is the first in history to show even the slightest concern for average, undistinguished, none-toocommendable people like us.

We are fools when we fail to defend civilization. The ancient Romans might as well have said, 'Oh, the Germanic tribes have valid nationalistic and cultural aspirations. Let's pull the legions off the Rhine, submit our differences to a multilateral peace conference chaired by the Pathan Empire and start a Vanda Studies program at the Academy in Athens.'

P.J. O'Rourke, Holidays in Hell 3 (1992). And that goes for your little progressive dog, too.

44 Mark Kramer, Travels With A Hungry Bear: A Journey to the Russian Heartland 131(1996).

45 See John Tierney, For New York City's OTB, A Sure Bet Ends up a Loser, N.Y. Times, Nov. 14, 1994, at Al.

When New York City went into the bookmaking business in 1971, its officials envisioned that their monopoly franchise would ultimately yield annual profits of $200 million. As it turns out, their projection was off—by just a little more than $200 million. Over the last two years the Offtrack Betting Corporation has become 'the only bookie operation in the world to lose money,' as Rudolph W. Giuliani liked to point out during the 1993 mayoral campaign.

Id. When the government does operate a gambling operation that makes money, it offers significantly less-favorable odds than the private market. See John Tierney, A Fool and His Money, N.Y. Times Magazine, Mar. 10,1996, at 30, 30.

I clearly saw the crucial moral distinction between illegal bookmaking and government-sponsored gambling: the bookmakers give better odds. No wonder the government wants to shut them down . . . OTB pays back barely 75 cents, and the lottery pays a measly 48 cents [of every dollar bet]. These bureaucracies' overhead expenses alone consume more than 10 percent of the bettors' money. They couldn't survive if private bookmakers could compete openly as they do in Britain and Las Vegas.

Id.