Sunday, January 13, 2013

Shaky Grounds: The outrageous case of the McDonald's coffee lady


How do you know what you know?
--Elizabeth Lewis, and countless other Criminal Justice professors

Oftentimes, when someone is arguing that Americans are weak, whiny losers who seek to blame someone else for their own shortcomings, they use the McDonald’s hot coffee lawsuit to support the argument.

This case is more than 20 years old now, but we still hear about it nearly every day. Twice this week, I heard someone use it as an example of: 1) How Americans are unwilling to take responsibility for their own well-being AND 2) How this often translates into frivolous lawsuits with outrageous payouts, which harms honest, hardworking Americans and the corporations who love them.

Whether we agree with the above conclusions or not, this case fascinates me because, well, pretty much everything we “know” about the lawsuit is wrong, and yet that doesn’t stop us from trotting it out as a perfect example of why we need tort reform, why class warfare is harming America, etc.

When you examine the facts of this case, it’ll make you wonder: What else am I wrong about? Am I basing other beliefs on bad timber? How do I know what I know?

On February 27, 1992, a 79-year-old Albuquerque grandmother, Stella Liebeck, ordered coffee at a McDonald’s drive-through. After they got their food, her grandson, who was driving, parked the car so that Mrs. Liebeck could safely remove the lid to add cream and sugar. When she removed the lid, Mrs. Liebeck spilled the coffee on her lap, and she was burned.

Now, so far, this sounds like an unfortunate mishap. After all, most of us have spilled drive-through food on ourselves, but we don’t go and file a lawsuit over it, do we? More to the point, is it really McDonald’s fault? Everyone knows that coffee is hot. Isn’t it ridiculous to hold the restaurant owners responsible for our clumsiness when they’re simply giving us what we asked for—a hot beverage to go? I don’t care if you are somebody’s grandma: You don’t deserve millions of dollars because you spilled your coffee on your lap, right?

But wait, there’s more:

During the previous 10 years, more than 700 customers showed McDonald’s that they had been burned—sometimes severely—by McDonald’s coffee. Nevertheless, McDonald’s continued to require franchisees to serve the coffee at temperatures of at least 180 degrees, which causes 3rd degree burns like those Mrs. Liebeck suffered.

In fact, Mrs. Liebeck suffered 3rd degree burns on her thighs, buttocks, and private parts. She required painful skin grafts, hospitalization, and follow-up treatment for more than two years. Still, she didn’t sue at first. She simply asked McDonald’s—not for millions of dollars—but for $20,000. She offered proof that this was the actual amount of her medical bills and lost wages, and she asked for no more than this. McDonald’s refused to pay, and offered $800 instead.

At this point, she sued. A McDonald’s quality control executive took the stand and conceded that, while McDonald’s was aware of the 700+ prior scaldings, the company decided not change their practices and had more pressing dangers about which to worry. The jury awarded Mrs. Liebeck $200,000 in compensatory damages (medical bills, lost wages, decreased function), which was later reduced to $160,000. They also awarded her $2.5 million in punitive damages (“punitive” is “to punish”—in other words, to make McDonald’s hurt enough so that they would change their practices). The jury arrived at this figure by calculating two days’ of McDonald’s coffee sales. This award was later reduced to less than $480,000. After more legal wrangling, the parties settled out of court for a lesser amount, bringing the total paid to Mrs. Liebeck to less than $600,000.

Is less-than-$600,000 a fair price for scalded genitals, hospitalization, disability, medical and legal bills, and the stress of months or years of court appearances, depositions, etc.? Maybe or maybe not, but I think this at least shows that Mrs. Liebeck is not an irresponsible, clumsy chiseler who conned an innocent corporation into giving her a lotto-style payout.

How do you know what you know?

Saturday, November 10, 2012

A letter to my dad, the veteran


Dear Dad:

You were my very first hero.

Tall and handsome, confident and strong, moral and ethical, and yet so, so funny. To me, you are perfect.

When I was little, I was sure you could do anything. Remember when I was 4? I was sick and turned to you to solve the problem. I cried: “Dad, I don’t wanna throw up. Make me stop!” You said, “Hey, there’s nothing I can do to stop THAT!”

You shocked me. Until then, I hadn’t known that you couldn’t protect me from every single danger. I still don’t believe it entirely.

That summer, you balanced me on your hip while you waded in the surf at St. Simons Island. I told you I was afraid of the waves, that I didn’t want them to wash over my head. You strode out chest-deep, clutched me tighter, and let the big waves break over both of us.

You said, “See? You did it!” Well, really, YOU did it, but: You held me while I faced down that fear, and you never let me go.

Everybody says you joined the Army because Pearl Harbor was bombed: You knew we were going to war and you had always wanted to fly, so you beat the draft board and joined the Army Air Corps.

As the pilot of the B-26, you flew mission after mission. Italy and North Africa. You bombed the Liri River Dam. Your plane was hit by flak, lost the rudder cable, went into a spiral. You brought your plane and your crew home anyway.

It happened again. You did it again. You won medals. You never wore them.

I wouldn’t know any of this, of course, unless I had found the newspaper articles your sister saved.

Like all real military heroes, you never talked about The War. I’ve never heard you brag about what you did—and I’ve never heard you excuse your flaws by calling up any of the terrifying things you lived through.

Some nights, the bunk next to you would be empty where a buddy slept the night before. Back home, your mother stopped answering the door.

You never once said: “Hey, I did my part. My country owes me.”

You helped defeat the Nazis. You helped save the world. Thanks, Dad.

Very rarely, you would mention an interesting anecdote, but that’s it. Once, I was working on a school project about volcanoes, and you told me that you were flying a night bombing run when your instruments failed. You used the glow from Mt. Etna to guide you home.

Sixty years later, you had lived a long life that would have been honorable even if we don’t count your military service.

You were an old man. Your body was failing you, and you—always strong and invincible before—were fighting a war that nobody ever wins.

After weeks, months, of struggling, you looked up at me with clear eyes. You told me to leave the room because you had something that you needed to do, and you didn’t want me to be there while you did it.

You died on February 10, 2004.

Your country is grateful to you. Your family is grateful to you. I am grateful to you.

You see, whenever I am fighting my own little personal wars, you are there with me. Because of your example to me as a father and as a man, you never let me come home at night to face an empty space where you once were. You’re always in my heart, still, and like Mt. Etna, the light of the life that you lived and the man that you were is always there, guiding me safely back home.





Thursday, August 23, 2012

Making friends with benefits



“Keep your Socialist hands off my Medicare!”
--Sign I saw at a Tea Party rally, Nashville, Tenn.

“We’re a capitalistic society, OK? I go into business, I don’t make it, I go bankrupt. They’re not gonna bail me out. I’ve been on food stamps and welfare. Anybody help me out? No.”
--Actor Craig T. Nelson, appearing on Glenn Beck’s Fox TV program, May 2009 (link is here: http://www.youtube.com/watch?v=yTwpBLzxe4U)

I offer these quotes not to criticize but to illustrate how little most of us know about the hot-button topic of “welfare.” Even though Mr. Nelson was ridiculed widely because he apparently does not know that food stamps, welfare, and bankruptcy are forms of being “bailed out” by someone else—namely taxpayers and solvent consumers—I don’t think we should judge him too harshly.
In fact, I would argue that, while some people may be better informed than others, it is human nature to downplay our own weaknesses while we pin societal ills on the perceived weaknesses of other people.

The subject of public benefits fascinates me, in part because no two of us can agree on who should get benefits, in what form, under what conditions, for how long, and for what purpose. Even though it’s an intensely political issue, I hope to make a few well-reasoned points based on facts and not just feelings.

If we want good answers, we must ask good questions.

1) What do you mean, “benefits”?


Broadly defined, just about everything the government does confers some sort of public benefit. Most of us drive on public roads, send kids to public schools, rely on the military, police, fire department. Most of us pay taxes, too, but of course the amount varies, as does how much benefit we receive. This is not what usually comes to mind when we say “benefits,” though, although many argue that it should.

Everyone draws the line in a different place, but I think we’re talking about:
a) Social Security (including OASDI, SSDI, and SSI)
b) Medicare
c) Medicaid
d) Food stamps (Supplemental Nutrition Assistance Program—SNAP)
e) Cash assistance (Temporary Assistance to Needy Families—TANF)

It’s a lot of information, so I made this table to cover the broad points:

Program
Wait, what?
Agency
Who funds it?
Who gets it?
Conditions?
How much?
Social Security--OASDI
Retirement
SSA (federal govt.)
Payroll taxes (FICA)
Retired people
Must have worked 40 quarters, must have paid into system, must be a certain age (varies)
Based on how much you made and when you retired
SSDI
Disability insurance
SSA (federal govt.)
Payroll taxes (FICA)
Disabled people
Must meet SSA’s definition of “disabled,” must have paid into system and worked required number of quarters based on age when disabled
Based on how much you made and your age
SSI
Disability insurance
SSA (federal govt.)
Payroll taxes (FICA)
Disabled people
Must meet SSA’s definition of “disabled,” need not have paid into system or worked for any length of time, but must have limited means
Up to $698 for a single person; $1048 for a married couple
Medicare
Health insurance
Dept. of Health and Human Services (federal govt.)
Payroll taxes; also, premiums taken from the insured’s SSA check
OASDI recipients; SSDI recipients who have been on SSDI for 2 years


Medicaid
Health insurance
Dept. of Health and Human Services (federal govt.) with each state’s Department of Human Services
State pays part; fed govt. pays part
(in richer states, it’s close to 50/50)
People who fit into certain categories only and then meet income and resource limits
Numerous

Food stamps
Used to buy food at the grocery store
Department of Agriculture (federal)
Fed govt.
Households under a certain income limit, once household size and certain expenses are counted
Numerous
Varies based on HH size, income, expenses, etc.; HH average is $133/mo.
Cash payments
TANF, a vestige of “welfare”
Dept. of Health and Human Services (federal govt.) with each state’s Department of Human Services
Mix of state and fed govt.
Families with children; must be under the income limit
5 year lifetime limit; work requirement; family planning requirement
Varies based on many factors

2) If we have Medicare and Medicaid, why are people uninsured?


You’re eligible for Medicare only if you receive OASDI (Social Security for the aged) or if you’ve been on SSDI for two years.

You’re eligible for Medicaid only if you fit into one of the categories that Medicaid covers AND you have very low income and few assets. (Generally speaking, the categories are poor single-parent families, nursing home residents, pregnant women, some children, and people who receive SSI. Also, poor people on Medicare sometimes qualify to have their premiums and some other costs paid by Medicaid.)

To qualify for Medicaid, for example, a single parent with one child must have a net household income of $896 per month and have assets (such as a bank balance) of less than $2,000.

So… unless you’re very poor AND you fit into one of the categories, you can’t get Medicaid. A 36-year-old single man, for example, cannot get Medicaid no matter how poor or sick he is.

Also, many employers don’t offer health insurance, and those who do must ask workers to pay part or all of the premiums, co-pays, and a deductible. One of my relatives works at a large, established company and pays $350 per month in premiums with a $7,500 deductible for her health insurance.

Also, in this economy, it can be a challenge to find any job, let alone one with health insurance.

Medicaid, Medicare, and private group health insurance cover only part of the population. This leaves a lot of people uninsured (or under-insured).

3) Why do illegal immigrants get benefits?


In general, they don’t.

In order to get the benefits listed above, you must prove that you are a U.S. citizen and that you have a valid Social Security number. In some cases, non-citizens who have permission to live and work in this country can apply for limited benefits after they’ve been here for a set amount of time. (Five years of legal residency is common.)

This is not to say that illegal immigrants don’t use some public benefits. They drive on public roads, for example, and send their children to public schools. While even those who don’t pay payroll or income taxes pay SOME taxes (gas tax at the pump, sales tax, etc.) and contribute to the economy as a whole, I don’t know if it’s “enough” to cover services received. Also, I’ll concede that it’s possible for someone who is eligible for food stamps to buy food and then, for example, prepare a meal for people who are not eligible for food stamps. Further, there is a limited type of Medicaid that covers illegal immigrants: Certain hospitals must accept anyone who suffers from a life-threatening emergency, such as a heart attack or childbirth. The hospital must (very generally speaking) treat the person until they are stable. These hospitals receive some Medicaid funds to cover their expenses.

4) Are benefits a right—or a privilege?


The Supreme Court held in Goldberg v. Kelly 397 U.S. 254 (1970) that welfare benefits are a personal property right. This means that everyone who is entitled to benefits has the right to receive them, and if the benefits are to be terminated, Due Process is required: a written notice and the opportunity for a hearing.

Under the Fifth and Fourteenth Amendments of the U.S. Constitution, then, public assistance is a Constitutional right.

The federal government and the state governments (when the state is involved) can pass laws and make rules, but they must not infringe on the recipient’s constitutional property rights.

5) What about drug testing?


I think drug testing laws can be written to pass Constitutional muster, but drug testing doesn’t seem to be cost effective.

In jurisdictions where a clean drug test is required before benefits are issued, an overwhelming majority of recipients pass the drug test. (In Florida, over 98% of welfare recipients passed).

There’s a confound here, of course: People who are on drugs are not likely to take the test, which would then remove them from the welfare rolls—but would also remove their children from the welfare rolls, and some would argue that the child of a drug user needs help just as much as (or more than) any other child.

Also, the modest savings wouldn’t seem to justify the expense of administering and tracking the test, processing the appeals for those who failed, re-testing, etc. Some states have responded to this by making the welfare recipient pay for the test. The problem with this is: If you’re needy, you won’t be able to afford the test. Also, many states reimburse the cost of the test to those who pass, and taxpayers must pay the administrative expenses, which puts us back to square one, cost-wise (except for some of the failing 2%).

Still others have argued: Why illegal drugs? You can’t test for other wastes of money, such as alcohol, entertainment, some prescription drug abuse, tattoos, etc.

6) Why should people who don’t work get benefits while I work and don’t get anything?


I think good arguments can be made here.

It’s true that many people who receive benefits DO work (or worked for many years until they could no longer work). Some recipients work more than one job.

It would be disingenuous, though, to say that everyone who gets benefits accepts them only as long as they need them and uses the boost to get back to being a productive member of society, as Craig T. Nelson apparently did.

To be honest, this is an issue with which I wrestle. Morally speaking, what is society’s duty here? I’d be very interested to hear everyone’s thoughts on this.

7) There’s a difference: I worked and paid into the system in order to receive Social Security and Medicare.


This is true—partially.

While a person (or their spouse) must work 40 quarters and pay payroll taxes, in order to get Social Security and Medicare, it’s not exactly like we’re all paying into a fund and then getting back only what we paid into it.

I don’t wish to dishonor my parents’ memory, but I’ll submit my own family as an example.

My father died in 2004, and my mother died recently. My parents were decent, hard-working people. I believe that they did their best to be honest, responsible citizens.

For much of her adult life, my mother was a stay-at-home mother. My father was the sole breadwinner. He was a veteran of two foreign wars and was a smart man, but we were not rich.

I don’t know how much my father paid into the Social Security and Medicare coffers, but I am certain that it was not enough to pay for his end-of-life care, which was well over $500,000, nor was it enough to pay for my mother’s many years of experimental cancer treatments and end-of-life care—to say nothing of their Social Security income.

While my parents were responsible and worked hard, in this case, we took more than we gave—and other people paid the rest.

8) Benefits help the poor at the expense of everyone else.


Benefits do help the poor, but they also help the rich and middle-class. Here’s how:

Food stamps began during the Great Depression to help both poor people and struggling farmers. Still, when you buy food with food stamps or your own money, you help farmers, grocery stores, food companies, etc.

If you notice, it is not poor people who lobby to have food stamps pay for more and more items (including fast food!), it is corporate interests such as restaurants, large grocery store companies, and large food companies.

People often complain that food stamps should not be used for junk food. What do you think Monsanto, the Coca-Cola company, retail chains such as Wal-Mart, and Dollar General Market (which sells no fresh food) would say about that? Please note that J.P. Chase Morgan is paid hundreds of millions of dollars to administer the food stamp program in several states. When you consider who has the political power—hungry poor people or wealthy large corporations—it is no surprise that efforts to limit the scope of the food stamps program don’t get very far.

Similarly, efforts to cut Medicaid and/or Medicare don’t just upset sick, poor people. Hospitals and doctors and their related organizations, who hold considerable political power, need to be able to treat more patients with more expensive treatments. The rest of us benefit from having these hospitals, doctors, nurses, technicians, research, MRI machines, etc., available to us, too.

My point is: These programs are so far-reaching and are so intertwined with the economy that it’s not so simple to cut benefits for anyone.

9) “I know someone who gets food stamps and…”


Despite the efforts of the federal and state governments, there is fraud.

Some possible scams:
Buying groceries with food stamps and selling them to someone else for cash.
Faking a painful condition and selling your Medicaid-sponsored prescription pain pills for cash.
Making money under the table and then lying to your caseworker about it, thus qualifying you for food stamps or maybe Medicaid.

If you know someone who is doing this, report it! (Your state’s website has the phone number.) Someone is stealing YOUR money and preventing an honest, needy family from getting help.













Tuesday, August 21, 2012

How I Passed the Bar


“...Remember, never take no cut-offs and hurry along as fast as you can.” – Virginia Reed, age 12, Donner Party survivor

There is no “right” way to study for the bar except for this: Decide how YOU study and learn best, and then study THAT way as hard as you can.

Because the bar exam was so scary for me, I want to try to ease some of your fears. This is what I learned and what worked for me.

Please remember that this is my advice based on my experience only.

1) Know yourself


How do you learn? What worked for you when you were studying for law school exams, and what didn’t? Think hard, and do THAT when you’re studying for the bar exam.

I knew that I didn’t benefit much from static lectures and videos, and I didn’t benefit at ALL from studying in a group. I had to absorb the information and then work with it all by myself. A combination of briefing the cases, attending the classes (and listening but not talking very much), and then researching and writing my own outlines worked best for me. Same with the bar exam: I listened to the bar exam subject lectures, took notes, outlined, and then practiced on my own. It worked for me.

If your law school experience has taught you that you benefit from the format that one of the bar study courses offers, then do that. I studied on my own, using a variety of tools.

2) Do not listen to the naysayers:


Most “friendly advice” is not very friendly—or very true.

If you’re a law student now (or you’ve ever been one), you can probably rattle off a list of the dire warnings that classmates, professors, and lawyers leveled at you during your 1L year: “If you don’t join this club, you won’t make contacts, and you won’t get a job when you graduate.” “If you don’t form a study group, you’ll flunk out.” “If you hand-write your exams, you’ll be at a speed disadvantage because….”

I wasted a lot of mental energy worrying about this stuff until I discovered this: The only “right” clubs to join, networking events to attend, externships to work are the ones that fit your goals and interests. Everything else is just noise.

It’s that way with the bar exam, too: The doom-and-gloom types will try to tell you that you won’t pass if you don’t take BarBri, or that PMBR is the only way to go, or—even more chilling: “The best predictor of success on the bar exam is (pick one: first semester grades, your score on the MPRE, your score on the LSAT).”

Try not to listen to these people. Your “success rate” has little to do with your past, and it’s almost entirely under YOUR control.

3) Surround yourself with positive people and support.


I had several friends from the upper classes who had taken the bar before I did. I would call these friends—sometimes very late at night—and they would talk me down. Lean on these people. (Email me if you need to lean on me.)

You can do it.

4) Don’t waste time and money on gimmicks


It’s tempting to listen to those who claim to have tips and tricks to “beat” the bar exam. These are silly. Again, hard work and careful study are the only keys. There are no shortcuts.

5) BUT some tools are very helpful and are worth the money.


My state (Tennessee) offered for a modest price the essay questions from some recent past bar exams. I bought these and used them to practice, and they were very helpful.

They were also helpful in another important way: You begin to notice a pattern. DON’T PUT ALL YOUR FAITH IN THIS PATTERN, but take note of it.

For example, I noticed that five out of six of the recent past bar exams featured a Wills and Trusts question. In every one of these fact patterns, someone had died leaving an older will and a more recent will. The will’s validity was in question by putative heirs, for one of the expected reasons: The newer will was handwritten, or maybe the heirs suspected undue influence and/or the testator’s incapacity. You’ll notice these frequently-tested scenarios, and you’d be a fool not to prepare for them.

6) Don’t skimp on your MBE (multiple choice portion) study


This study was far more tedious and time-consuming than my essay study, but I devoted most of my time to it, and it paid off.

Here’s how I did it:

Get your hands on as many sample bar exam multiple choice questions as you can. I borrowed a huge book of them from a friend, and I bought second-hand a book with many hundreds more. In addition to these individual questions, the books had full sample tests.

I recommend this method:

1) For eight or more hours a day for many days on end, I worked one question at a time. I covered up the answer choices, read the fact pattern and question prompt, and quickly tried to answer before I looked at the choices. I then looked at the choices, picked one, and then read the answer and explanation, noting why I got it right (or wrong). Then, I did it again. And again, and again, for several hundred questions, day in and day out.

2) After I had practiced in this manner on a fair sample of the questions for each of the subjects (torts, contracts, etc.), I took a full sample bar exam multiple choice section. I then graded myself with the answer key, became crestfallen at how low my percentage of correct answers was, and tearfully went back to Step 1. I then took another full test. I did this maybe once or twice more. My score got higher and higher, so don’t be alarmed at how poorly you may do at first. That’s normal.

(Also, you’ll wish you had used this method all during law school to learn your subjects, because you’ll be astonished at how good you get at spotting the fine distinctions in the law. As tedious as this is, it’s quite encouraging to see how quickly you begin to really KNOW the law. This is why I said “don’t skimp” on this part. This will help your essay question performance, too! It is time well-spent, so give it the time it deserves.)

7) Work hard


This seems obvious, but even if you do choose a bar study course, I think it’s a mistake to be lulled into just working the daily sessions. For me, it took more than eight hours a day of diligent self-study—every single day.

You’ll notice that you will not feel prepared ever. This is alarming, but it’s normal. I don’t know about you, but I did much better on the law school exams where I didn’t feel that I knew everything. When I felt confident that I had the subject down cold, that was actually a bad sign. You know that you don’t know what you don’t know. If you know, you don’t know, because you can never really know everything. You know?

8) Make peace with IRAC


Bar exam graders have even more exams to grade than do law school professors. The graders are looking for certain things. If you cover what they’re looking for, your answer passes. If not, it fails. This is actually a good thing, because you’re already so good at IRAC, issue spotting, and raising and dismissing counterarguments.

I found that the essay questions did not have as many issues to spot as did a standard law school exam, so you’ll want to signal to the exam grader that you’ve hit the target. To do this, I made very sure to lay on the IRAC a little more thickly than I did on a law school exam, and I think it was wise.

For example:

“This question deals primarily with personal property.

The question asks whether Mr. Jones can get the ring that he left on the grocery store shelf back from Mr. Smith, who found it. In order to determine this, it’s important to determine whether Mr. Jones lost the ring, mislaid or abandoned the ring.

In Tennessee, personal property is ‘lost’ when…”

See? Pretty broad, but it works.

9) I never wrote a sample essay answer


You may choose to, but I didn’t. I just read the question, outlined the answer, and checked it against the sample answer to see whether I had raised the proper issues and had dealt with them correctly.

10) Don’t waste time on RAP


If you don’t already understand the Rule Against Perpetuities or some similarly obscure-yet-complicated law, don’t waste time learning it now. If judges don’t understand it and all jurisdictions have written statutes so that it is never, ever triggered, it’s probably not going to figure heavily on the bar exam (if at all).

Tread carefully, of course. You don’t want to say something like: “I never could remember all of the hearsay exceptions from Evidence class. I’m skipping them!” But if you don’t see something tested in the hundreds of sample questions that you do (or you only see it once or twice), don’t waste valuable time.

 

SUMMARY:


Here’s how I studied for the bar:
1) I knew what worked for me, and I crafted a rough plan based on that.
2) Before I finished 3L, I gathered my study materials. I borrowed a friend’s PMBR Multi-state lecture CDs and practice question book, and I bought used Tennessee BarBri outlines and MBE and essay sample question books from eBay, which I later resold for the same price. From my state bar association, I bought the sample exams (including an online version).
ETHICS NOTE: Companies such as PMBR and BarBri ask you not to do this. I did it anyway. Was it wrong? I don’t think so, but I accept that reasonable minds can differ.
3) I read the bar outlines from the books and listened to the bar lecture CDs. I took notes on my laptop and then crafted the notes into outlines, trying to forget that I had spent many hours just 2 ½ years prior doing the same thing.
4) I then began multiple choice practice, using the method in Point #6 above.
5) I practiced my essays, using the method in Points #5, 8 and 9, above.
6) I took sample exams.

Please do it your own way, but work hard.

I know you can do it. I’m proud of you.

Call or email if I can help.








Friday, September 17, 2010

My response to Dr. Roger Starner Jones

It all started with Facebook, as most of my recent irritations do. A Friend of a Friend posted a letter to the editor—supposedly written by a Mississippi ER doctor—expressing annoyance with a cigarette-smoking, beer-drinking, spendthrift Medicaid patient. He was against the health care bill and concluded that taxpayers shouldn’t have to pony up for this woman’s health care if she refuses to put down the beer and cigarettes and pitch in.

While there was plenty to hate about this doctor’s poorly-reasoned diatribe, I was perhaps more disturbed that the letter had gone viral. Among my high school classmates and third cousins, there was plenty to “Like”: “Couldn’t agree more!” rang out.

The doctor wrote:

During my last night’s shift in the ER, I had the pleasure of evaluating a patient with a shiny new gold tooth, multiple elaborate tattoos, a very expensive brand of tennis shoes and a new cellular telephone equipped with her favorite R&B tune for a ring tone.

Glancing over the chart, one could not help noticing her payer status: Medicaid.

She smokes more than one costly pack of cigarettes every day and, somehow, still has money to buy beer. And our President expects me to pay for this woman’s health care?

Our nation’s health care crisis is not a shortage of quality hospitals, doctors or nurses. It is a crisis of culture – a culture in which it is perfectly acceptable to spend money on vices while refusing to take care of one’s self or, heaven forbid, purchase health insurance.

A culture that thinks I can do whatever I want to because someone else will always take care of me.

Life is really not that hard. Most of us reap what we sow.

Starner Jones, MD Jackson, MS

My first instinct was to verify that the letter was correctly attributed, because the story rang false to me. I couldn’t believe that a health care professional would publicly describe and then vilify his patient. But Roger Starner Jones, M.D., is indeed an ER doctor at the University of Mississippi Medical Center, and his letter was published August 23, 2009, in the Jackson Clarion Ledger.

While it seems clear that Dr. Jones is a real person and the words are in fact his, something is fishy here. For example, while it’s true that a patient’s chart often lists health history and habits such as smoking, I doubt that a busy emergency room doctor had time to discover that this woman—let’s call her Sharon—was on Medicaid while he recognized her R&B ring tone and elaborate tattoos.

Instead, Sharon seems rather like a caricature—Mississippi welfare queen, child of the entitlement culture, spending her government checks on beer, cigarettes, gold tooth.

No, I suspect that Sharon is an amalgamation of many of Dr. Jones’ patients—perhaps mixed with some of his own frustrations and politics. It seems like a logical fallacy, as in: I know this to be true, and I’m going to prove it by offering some unverifiable facts blended with a bit of Great Society folklore. If that’s the case, then it’s especially disturbing that his letter has resonated with so many people across the Internet—many of whom are my friends, or at least Friends.

But forget about Sharon for now. Dr. Jones’ larger point (“most of us reap what we sow”) seems to be that, rather than allow the federal government to meddle in health care, those who lack access to health care should first help themselves. He seems to suggest a two-part solution: 1) Make healthy lifestyle choices and therefore avoid illness and 2) Buy health insurance instead of tattoos and ring tones.

Those of us who do not rest in the “life is not that hard” camp recognize that it’s not that simple. It’s really hard to get a job right now. It’s especially hard to get a job that offers health insurance. You can try to buy an individual policy, but assuming you can find someone to insure you (key words: young, healthy, non-smoker, no pre-existing condition, etc.), it’s still pretty expensive. The multi-page application is complicated—even for the educated and experienced—and if you make a mistake and leave something out (even if it’s irrelevant to your current claim) the insurance company will rescind your policy. In other words, because you weren’t completely forthcoming, your policy is cancelled and you’re on the hook.

I know all of this, both because I’m a lawyer who has handled health care issues every day for the past two years AND because I’m one of the under-insured. While I work more than 40 hours per week, I’m not eligible for benefits because I’m considered an independent contractor. Fortunately, I’m a healthy 40-year-old non-smoker, and after much research and paperwork, I managed to secure a high-deductible ($7,500) bare-bones policy for $85 per month. Another lawyer in my office chose a similar policy with a lower deductible, and he pays $190 per month.

If Sharon gives up her cigarettes and beer and manages to navigate the application process, will she be able to afford these premiums, the deductible, the co-pay, and the various health care costs that are left uncovered? If she can’t, is it still all her fault?

Blaming the afflicted for their affliction is nothing new, of course. Simply stated, the party line goes like this: If you lived a healthy lifestyle, you wouldn’t get sick. If you worked for a living, you wouldn’t be poor. If you refrained from unsafe sex, you wouldn’t get AIDS.

It’s tempting to embrace this philosophy, because we can comfort ourselves by saying: I’m not that kind of person, so that won’t happen to me. Plus, Sharon got herself into this mess, so it’s not my problem if she can’t get herself out of it.

This reasoning has fatal flaws, though: It ignores the non-smoker who gets lung cancer, the hemophiliac who gets a bad blood transfusion, the person who wants a job with benefits, but can’t find one.

More importantly, we’re all human, and all of us—every single one of us—is prone to a stupid mistake here and a dumb choice there. Sure, we all have to pay for our mistakes, but we’re all in this together. If each one of us can’t afford to be adequately insured against loss (even if some of it is our damn fault), can we decide as a group to have a safety net so some of us don’t sink?

I have found that, while it’s imminently worth it, life can be pretty hard. Lately, so many of us have been struggling. Some days, I come home and make myself a nice cocktail. Please don’t tell my insurance company.

--Robin Littlefield