The Adjustment Bureau” (Trinity, 2024) by Jude Russo was one of the best takes on the health-care “system” I have ever read. I am an attorney who has represented hospitals and health systems exclusively for forty-six years. I have always thought that so-called “value-based” reimbursement was a scam designed to save the government money while lining the pockets of insurance companies and ten percenters like Mr. Russo’s former employer. Independent community hospitals and physicians in private practice, especially in rural areas, are in financial peril. One can only hope that this will turn around, but I am afraid Mr. Russo’s conclusion that “American health care will be dysfunctional as long as any of us are alive” is correct. That made me think of what my eighth grade teacher Sister Regina Mary used to tell us: “All you can hope for is a peaceful death.”
Dan Mulholland
Pittsburgh, Pennsylvania
The author replies:
Thank you for the kind note. The tragedy of it is that the idea of value-based care—“the doctor should keep his patients healthy”—is, by my lights, morally right. Unfortunately, it is difficult to replicate morality with pure economic incentives, but very easy to introduce friction and perversity into the system.
A three-thousand-word essay can hope only to scratch a little of the top layer of skin on the great, shaggy beast of American health care—particularly if you’re hoping to entertain, as I usually am, I’m afraid. Books could be written about the interlocking Rube Goldberg machines of subsidy and regulation that stand between you, your doctor, and your antibiotics (or painkillers, or physical therapy, or whatever).
And that is the real rub. The system is too complex for wholesale reform, but there are real ameliorations well within reach for our political leaders—billing standardization, weakening the P.B.M.s, or (as Mr. Mulholland, as a lawyer, is no doubt even better equipped to explain than we are) reforming tort law. Unfortunately, while it takes many minutes, sometimes as much as an hour, to explain a given problem and its potential solutions, most politicos have an attention span of about ninety seconds—about sixty seconds if the cameras from C-SPAN, the most destructive force in American democracy, are rolling during the committee meeting or hearing.
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I greatly enjoyed Stanley Fish’s discussion of 12 Angry Men (“Honest Dishonesty,” Trinity, 2024). In my work as a trial judge for the last twenty years, many times I have related a scene in the movie in order to instruct jurors not to independently investigate cases. I’ll note that it is the “honest” Henry Fonda character who goes to the scene of the crime and buys a switchblade knife identical to the murder weapon. That is in violation of an instruction given in every court of law then and now. Fish worries about the dishonesty of the message of the movie with regard to analyzing evidence and reasonable doubt in isolation. In my experience, and as every seasoned trial lawyer knows, that danger is not great. Jurors instinctively gravitate to stories and usually reject the defense counsel who argues only individual doubts, rather than an argument suggesting what could have happened. Jurors abhor a story vacuum.
Fish’s conclusion brought to mind Barbara J. Shapiro’s book A Culture of Fact: England, 1550–1720. She describes the development and acceptance of trial courts’ adoption of probabilistic levels of proof, such as reasonable doubt, to determine a “fact,” and trial courts’ development of rules to determine what evidence is reliable for admission in trial. She argues that as society began to accept the fact determinations of juries, expressed through verdicts, this acceptance of newer notions of “truth” and “fact” were an influence in the broader culture, in journalism, travel writing, history, and science. It could be argued that these ideas persist in our endangered notions of truth today. I’d like to believe this is so, but I admit that I’m not impartial in reaching judgements on this topic.
Honorable Jim Rogers
King County Superior Court
Seattle, Washington
