Howard's Delemma

Utah Desert in Winter - photo by Sam Sturman

“All that is necessary for the triumph of evil is that good men do nothing.”
Edmund Burke 1729-1797

Scott Sturman
fliesinyoureyes.com

Years ago my friend Howard was summoned to jury duty for a child molestation case. The accused, a thirty year old male with two prior convictions for similar crimes, allegedly sexually assaulted a ten year old girl who lived in the house next door. Over a year's period he repeatedly raped her and insured her silence by threatening to kill her and her mother if she reported the crime.

Howard is a successful businessman, and like many of us who do not receive jury duty compensation from an employer, was reticent to get involved in a long criminal trial. His attitude abruptly changed during the jury selection process when he saw the defendant. Howard made a decision to become a juror and when the judge asked him if he had any preconceived notions, he replied, “Your Honor, I believe everyone is innocent until proven guilty.”

Within the first few days of the trial Howard concluded it would be a short affair since the evidence overwhelmingly pointed to a guilty verdict. The testimony was graphic, and the defendant's demeanor so sullen and callous that Steve could not conceive of any ambiguity surrounding the case. The defense attorney did his best to obfuscate the facts, belabor the proceedings, and proclaim his client was the actual victim. The case drug on for over two weeks, and at the end of each day Howard felt ill when he left the courtroom; the crimes committed against the little girl were so repulsive and cruel that when he returned home it was impossible for him to sleep at night.

At last the case went to the jury. The facts and testimony were compelling, and Howard assumed the twelve jurors would come quickly to a guilty verdict. Anticipating an early day and a fast decision, he called his wife and asked her to make dinner reservations at their favorite restaurant. As foreman of the jury, Howard asked for a secret ballot to determine where the jurors stood. He was shocked when he counted ten guilty and two not guilty votes. This was not like the movie Twelve Angry Men where one impeachable jurist sides against his prejudiced peers and ultimately wins an acquittal for a wrongly accused defendant. There was nothing the defense attorney or the defendant presented which supported a not guilty verdict. On the contrary, the prosecutor fashioned a logical and well documented case. Multiple witnesses corroborated the victim's story, and the physical evidence substantiated their testimony. How could two people listen to the same proceedings and vote not guilty?

It was late at night and the jury was at an impasse. Some jurors spoke eloquently about the soundness of a guilty verdict and asked the two dissenters to identify themselves. It was not until the next afternoon that one of them spoke, “I voted not guilty because I think the Devil made him do it.”

Howard responded softly but firmly, “This jury is not concerned with whom made him commit the crime. Our job is to decide whether he did it or not.”

Several others echoed the argument and within an hour the man relented – 11 guilty and 1 not guilty.

It was not until late the following day when the last hold out identified herself. She was a widow in her 70's from a small farming town nearby. Despite prodding from her fellow jurors, she refused to change her vote. She reasoned that a guilty vote would constitute the defendant's third strike which mandated a life sentence without parole. She thought the punishment was too extreme.

Finally, Howard had enough. “Madam, do you have a granddaughter?”
“Yes, I have several.”
“Do you have one about ten years old? That's the same age as the girl we have heard about for the last three weeks.”
“Yes.”
“If you vote not guilty because you disagree with the punishment set by the state, you're wrong. When you interviewed to be a juror, you knew this was a three strikes case, and the judge made it explicitly clear a guilty verdict meant mandatory life imprisonment.”
“I can't do it. It's not fair a young man should have to spend the rest of his life in jail.”
“Do you think he is guilty?”
“Yes, but I can't be the one responsible for such an extreme and harsh sentence.”
“Very well then. Go ahead and vote not guilty, but I'm going to find out where your ten year old granddaughter lives. When the defendant goes free, he will have no place to stay. I'm going to rent the house next to your granddaughter's house, and let him live in it free of charge.”
“You can't do that!”
“Oh, yes I can. I'm a businessman and make a lot of money. I will make it happen. It is the first thing I will do after we leave this courtroom.”

A few minutes later the judge received a note in his chambers from the foreman. The jury had arrived at a unanimous guilty verdict.

Little Darlin's

Comb's Ridge Hwy 95 in Utah. Photo by Sam Sturman

Scott Sturman
fliesinyoureyes.com

The foundation of every state is the education of its youth. Diogenes Laertius

I have known a friend for over 40 years who after scoring 1600 on the SAT's, majored in physics at a top level institution and later received a masters degree in meteorology. While serving in the Air Force, he worked in satellite communications and later led a successful career in the aerospace industry in Silicon Valley. Ten years ago he decided to enter the teaching profession with aspirations of becoming a high school physics teacher. With his apparent qualifications and the shortage of science teachers at this level, one would think the transition would be seamless. This was not the case, for education classes, student teaching, and credentialing stood in the way. Today he is the first to contend these requirements were generally a waste of time and with his impressive resume only postponed his entry into the classroom.

In the eyes of his students he is a superb teacher. However, as tireless, dedicated, and innovative as he may be, he is unwilling to comply with many of the illogical pronouncements of the school administration. One of which is the policy to award an abundance of “A's and B's” to students at the expense of course content. If it were not for his financial independence and the support of parents who insist he teach their children physics, he would have lost his position long ago.

At the beginning of each academic year during “back to school night,” he addresses the visiting parents, “This is probably the first class in which your child will not receive an “A” grade. I am here to teach your children to understand the principles of physics and not regurgitate information from memory. This would be a disservice and not prepare them for the universities you wish them to attend.” Yet despite the probability of a tarnished straight “A” transcript, there is a waiting list to enroll in his class.

For school administrators eager to show encouraging results, grade inflation serves useful purposes:

• Poor teachers may not impart meaningful knowledge to students, but an “A” grade on the transcript goes a long way to mollify otherwise discontented parents.

• Less than perfect grades harm fragile egos. High marks give the impression of superior performance, although this sense of security may be undermined when the student is exposed to an academic environment where different priorities are the rule.

• High GPA's and their inherent subjectivity allow low performing schools to compare favorably on a superficial level with high achieving competitors.

• Inflated grades allow schools to promote marginal students to the next grade where there is no reasonable chance to succeed.

I often hear parents declare how much smarter high school students are nowadays compared to their generation. From the number of high school valedictorians this is indisputable. My graduating class of 400 in 1968 had three valedictorians; thirty to forty years later my children's cohort of 600 students per graduating class garnered a 10% valedictory rate. Judging by grades alone, this is a thirteen fold improvement in intellectual performance in a single generation – a truly remarkable achievement, as if homo sapiens evolved from Neanderthals in a forty year period.

Our company annually awards a four year scholarship to an aspiring physician from a local high school in an impacted area of our city. Selection is based on GPA, SAT scores, and an essay written about a medical dilemma. The entrants are hard working, ambitious teenagers with excellent GPA's, but only a hand full score average on the SAT and with few exceptions the quality of the essays are not consistent with the high grades of the writers.

I attended an awards ceremony at the high school this spring, and by chance sat by a member of the school board. During the presentation she leaned my way and stated, “This school has more valedictorians than School X and School Y which most people think are the two best high schools in the district.”

“By what criteria? GPA?” I asked.
“Yes,” she replied, “It's the highest in the city. This clearly demonstrates the excellent education we are providing here.”

Some of these graduating seniors will succeed under any circumstance, but a large number are set up to fail. Having been told they are straight “A” students and labeled with the adjective “gifted”, the odds are high they will be subjected to an unpleasant experience when it is time to attend college. Grade inflation boosts the ego and satisfies administrators, but without a substantiative education to complement it, the recipients are apt to have a false perception of their ability to perform at a commensurate level in college.

My friend has the right idea. He demands a lot from his students but is stingy with awarding good grades. When a student earns an “A,” it means something. Students who receive average grades in his class probably learn more physics and score higher on the SAT Achievement Test than most students from classes where superior grades are dispensed merely for taking the course. If it were otherwise, why would conscientious, competitive parents insist their children attend the class?

Good Bye New England Journal of Medicine

Desert and two Welsh corgis near Moab, Utah. Photo by Sam Sturman

New England Journal of Medicine

To Whom It May Concern:

Is the New England Journal of Medicine trying to become the next Weekly Standard or New Republic? After having supported the magazine for many years, it is time to part ways when a respected medical journal becomes a drummer boy for national health care and devotes as much attention to politics as to clinical medicine.

It is one matter to present a balanced discussion of health issues and quite another to incessantly advocate government controlled health care as the only means to solve the problem. In the months preceding passage of the immensely unpopular ObamaCare plan, pundit after pundit espoused this doctrine in the journal's opinion pages with only a single tepid rebuttal from Senator Charles Grassley.

How ironic the NEJM editorial staff led its readers to believe a federalized program is necessary for cost containment when in its own Case Studies from the Massachusetts General Hospital, no test is too expensive or obscure to diagnose the patient's illness. Perhaps this is the prerogative of elite institutions.

Scott Sturman, M.D.

P.S. The Wall Street Journal recently published a discussion of the crushing financial burden imposed by the Massachusetts universal health care system. For years the NEJM editorial staff denied this would occur. With too much demand and a paucity of supply, it is no wonder the state of Massachusetts and its vaunted academic institutions are strong proponents of national health care and the federalization of their debt. The governor's proposal to mandate physician participation in the Massachusetts health system, thereby tacitly making doctors state employees, should sound the alarm to any doctor who cherishes the freedom to work independently.

Joseph Rago: The Massachusetts Health-Care 'Train Wreck' - WSJ.com

http://online.wsj.com/article/

SB10001424052748704324304575306861120760580.html

By JOSEPH RAGO
President Obama said earlier this year that the health-care bill that Congress passed three months ago is "essentially identical" to the Massachusetts universal coverage plan that then-Gov. Mitt Romney signed into law in 2006. No one but Mr. Romney disagrees.

As events are now unfolding, the Massachusetts plan couldn't be a more damning indictment of ObamaCare. The state's universal health-care prototype is growing more dysfunctional by the day, which is the inevitable result of a health system dominated by politics.
In the first good news in months, a state appeals board has reversed some of the price controls on the insurance industry that Gov. Deval Patrick imposed earlier this year. Late last month, the panel ruled that the action had no legal basis and ignored "economic realties."

In April, Mr. Patrick's insurance commissioner had rejected 235 of 274 premium increases state insurers had submitted for approval for individuals and small businesses. The carriers said these increases were necessary to cover their expected claims over the coming year, as underlying state health costs continue to rise at 8% annually. By inventing an arbitrary rate cap, the administration was in effect ordering the carriers to sell their products at a loss.

Mr. Patrick has promised to appeal the panel's decision and find some other reason to cap rates. Yet a raft of internal documents recently leaked to the press shows this squeeze play was opposed even within his own administration.

In an April message to his staff, Robert Dynan, a career insurance commissioner responsible for ensuring the solvency of state carriers, wrote that his superiors "implemented artificial price caps on HMO rates. The rates, by design, have no actuarial support. This action was taken against my objections and without including me in the conversation."

Mr. Dynan added that "The current course . . . has the potential for catastrophic consequences including irreversible damage to our non-profit health care system" and that "there most likely will be a train wreck (or perhaps several train wrecks)."

Sure enough, the five major state insurers have so far collectively lost $116 million due to the rate cap. Three of them are now under administrative oversight because of concerns about their financial viability. Perhaps Mr. Patrick felt he could be so reckless because health-care demagoguery is the strategy for his fall re-election bid against a former insurance CEO.
The deeper problem is that price controls seem to be the only way the political class can salvage a program that was supposed to reduce spending and manifestly has not. Massachusetts now has the highest average premiums in the nation.

In a new paper, Stanford economists John Cogan and Dan Kessler and Glenn Hubbard of Columbia find that the Massachusetts plan increased private employer-sponsored premiums by about 6%. Another study released last week by the state found that the number of people gaming the "individual mandate"—buying insurance only when they are about to incur major medical costs, then dumping coverage—has quadrupled since 2006. State regulators estimate that this amounts to a de facto 1% tax on insurance premiums for everyone else in the individual market and recommend a limited enrollment period to discourage such abuses. (This will be illegal under ObamaCare.)

Liberals write off such consequences as unimportant under the revisionist history that the plan was never meant to reduce costs but only to cover the uninsured. Yet Mr. Romney wrote in these pages shortly after his plan became law that every resident "will soon have affordable health insurance and the costs of health care will be reduced."

One junior senator from Illinois agreed. In a February 2006 interview on NBC, Mr. Obama praised the "bold initiative" in Massachusetts, arguing that it would "reduce costs and expand coverage." A Romney spokesman said at the time that "It's gratifying that national figures from both sides of the aisle recognize the potential of this plan to transform our health-care system."
An entitlement sold as a way to reduce costs was bound to fundamentally change the system. The larger question—for Massachusetts, and now for the nation—is whether that was really the plan all along.

"If you're going to do health-care cost containment, it has to be stealth," said Jon Kingsdale, speaking at a conference sponsored by the New Republic magazine last October. "It has to be unsuspected by any of the key players to actually have an effect." Mr. Kingsdale is the former director of the Massachusetts "connector," the beta version of ObamaCare's insurance "exchanges," and is now widely expected to serve as an ObamaCare regulator.

He went on to explain that universal coverage was "fundamentally a political strategy question"—a way of finding a "significant systematic way of pushing back on the health-care system and saying, 'No, you have to do with less.' And that's the challenge, how to do it. It's like we're waiting for a chain reaction but there's no catalyst, there's nothing to start it."
In other words, health reform was a classic bait and switch: Sell a virtually unrepealable entitlement on utterly unrealistic premises and then the political class will eventually be forced to control spending. The likes of Mr. Kingsdale would say cost control is only a matter of technocratic judgement, but the raw dirigisme of Mr. Patrick's price controls is a better indicator of what happens when health care is in the custody of elected officials rather than a market.
Naturally, Mr. Patrick wants to export the rate review beyond the insurers to hospitals, physician groups and specialty providers—presumably to set medical prices as well as insurance prices. Last month, his administration also announced it would use the existing state "determination of need" process to restrict the diffusion of expensive medical technologies like MRI machines and linear accelerator radiation therapy.

Meanwhile, Richard Moore, a state senator from Uxbridge and an architect of the 2006 plan, has introduced a new bill that will make physician participation in government health programs a condition of medical licensure. This would essentially convert all Massachusetts doctors into public employees.

All of this is merely a prelude to far more aggressive restructuring of the state's health-care

markets—and a preview of what awaits the rest of the country.

Mr. Rago is a senior editorial writer at the Journal.