How to Fix American Healthcare

In July, Fox News reported that some Americans are not renewing their health insurance. Purportedly, about one million have made that election, after learning that the taxpayers would not contribute to their insurance premiums. The article concludes that data supports that "the high-price plans on the individual market are unaffordable and forcing unsubsidized middle-class consumers to drop coverage,” according to research from the Centers for Medicare and Medicaid Services.

The article draws attention back to the promises made when Obamacare was proposed in 2009, such as: “If you like your health care plan, you’ll be able to keep your health care plan – period,” Similar promises were made about keeping your doctor, according to Politifact. 

The reality is that medical care costs money. There are some who contend that the American system of medical care delivery is broken. In the LA Times, Dr. Robert Pearl (health care provider and industry CEO) takes issue with the manner in which health care is delivered. Dr. Pearl notes that America spends "50% more than any other nation on the globe and our results are in the lower half." Think about that for a minute, We spend $1.50 for every dollar in the next highest country, and we do not achieve results in the top 50%. Apparently, there is support for the contention that shoveling money at a problem may not necessarily solve it. 

He points fingers at (1) doctors clinging to antiquated methodology and technology, (2) the foundational "fee for services" model that pays for procedures or tests, rather than for results, (3) a siloed record-keeping process that frustrates access to information for both patients and care provider, (4) a reluctance to engage in preventative medicine (he says we "value intervention over prevention), and (5) a reluctance to leverage technology to facilitate better, more frequent care. These are detailed in his book Mistreated. It is a recommended read for anyone who will engage the American health system (this means you). 

There are a number of complaints about the delivery of medical care in this country. Pharmaceuticals are expensive in America. In fact "Americans spend more on prescription drugs than anyone else in the world," according to Bloomberg. The cynic in my head is chanting "We're number one" repeatedly as I compose this. Some, like the American Association of Retired Persons, have contended that importing drugs from Canada is an easy solution to that issue. However, there are some who question the AARP's motives, after details emerged regarding the financial impacts of its support for the failed Obamacare experiment, as reported by Forbes. 

Anyone who has visited the doctor's office for a cursory examination may have complaints. A conference attendee recently related to me a sports injury. He made an appointment and visited his family physician as scheduled. Despite arriving 15 minutes early at their urging, he then spent over an hour in the waiting room. Once with the physician, he had his abdomen prodded, his ears examined, and was repeatedly asked to "say ahhhhh." And then, the doctor eventually examined the injured foot, opined that he "thought" it was sprained, ordered an x-ray, and referred him to follow-up with an orthopedic surgeon. The gentleman complained of a wasted morning, and wondered aloud why he had not just gone to an orthopedic to begin with (he was convinced his throat and ears were unrelated to his foot complaints). He perceived that this physician had delivered no value to him. 

There are always two sides to every debate. The New York Times recently published a rebuttal to what it calls "myths" regarding the cost of American medical care. It contends that the "quality of health care looks pretty good." The study that it cited concludes that hospitalization is less frequent in America, that there is no indicia of an extraordinary number of doctor visits, and that cost containment is a challenge in more than just America. 

The Times refutes any perception that there are not enough primary care physicians in America, and contends that Americans do not "use too much medical care" in a general sense. However, it cites evidence that America ranks "near the top in its use of certain medical services, including expensive imaging tests and specific surgical procedures, like knee replacements and C-sections." Thus, the Times seems to suggest that solutions lie not in the costs of care, but in our selections of the types of care. 

Imagine that you are eating at a cafeteria. Those have become less common perhaps. But in the "old days," we walked through a serving line and viewed various dishes. We selected what we wanted and in the end, we paid a price per dish selected. There is some argument that the ultimate charge (what we are spending on eating) is too high in the national aggregate. But, the Times is suggesting instead that the issue is merely that some selections that are expensive are being consumed too frequently, thus driving up that aggregate. 

There are those in society that advocate for universal medical care. The Washington Post recently lamented the repeal of the Obamacare "individual mandate" (a provision in the law that said Americans had to purchase something, whether they wanted to or not). The Post contends that medical care is a "human right," and that every person should have access to care regardless of their ability to pay for it. By definition, when something is provided to those who feel they cannot pay for it, that means someone else will have to pay for it. The simple economics of socialism are lost on too many. 

The Post lamented "No longer will the government ensure that the nation is insured," as a result of the mandate repeal. That statement ignorantly ignores that even when Obamacare mandated everyone to have insurance, the media reported that 27 million remained without such coverage, according to Bloomberg. That may not be curious to some, but if Obamacare was mandatory, as it said it was, how is it that anyone was without coverage? Perhaps there are various definitions for "mandatory?" My understanding of "mandatory" is that it means "required." If something is mandatory then everyone would have it. However, the Quixotic imposition of mandatory did not affect full participation. 

It is also worth noting that Obamacare did result in a larger population of "covered" Americans. However, there are some who believe that a significant amount of that increase was through the concurrent expansion of government benefit eligibility. The Heritage Foundation calculated in 2014 that 71% of early Obamacare coverage expansion "was attributable to the Obamacare expansion of Medicaid to able-bodied, working-age adults." It seems debatable whether Obamacare resulted in significantly more individuals purchasing health insurance. 

Back to the Fox News article that started this discussion. Some states (13) report that the cost of certain health insurance "plans are already at least 40 percent higher this year than last year." One state has reportedly seen "premiums leap 65 percent." According to the Kaiser Foundation, premiums increased significantly in 2017 (in some locals the increase was double-digit). Since 2013, health insurance premiums have roughly doubled according to eHealth. Arguably, Obamacare neither reduced the cost of health coverage nor achieved its mandate of coverage. The lamentation "no longer will the government ensure that the nation is insured" seems a bit disingenuous in these regards. 

There is conjecture that without government coercion, fewer will purchase health insurance. That may be due to the increase in premium cost in recent years, which some perceive was driven by Obamacare itself and others say was inevitable even without that experiment. That may be because Americans have been rooted in individualism and freedom for centuries, and perhaps they do not favor being told what products they must purchase? I can only imagine the hue and cry if the strawberry producers convinced Congress to mandate that all Americans buy $321 worth (cost of average health plan) of strawberries each month ("but I don't like strawberries," - "no one said you have to eat or enjoy them, just buy them.") Some cynics would complain about buying something they neither want nor believe they need, and others might argue that forcing people to make purchases is antithetical to American freedom.

In the end, the debates about health insurance may be worthwhile. However, the discussion points raised by Dr. Pearl and the Times may also have merit. Could we leverage technology so that a follow-up appointment with our physician might be a Skype experience rather than a morning spent sitting in a waiting room full of sick people? Might we figure out a way to allow patients and other providers with ready and inexpensive access to records, as the Cleveland Clinic and Medicare have done? Might pricing transparency (June 2015), record portability, and technology leveraging, as advocated recently by Medicare, provide a path to better-enabled consumers in the marketplace? What if those consuming services were the ones actually paying the cost, would we each become better consumers? 

There are undoubtedly a great many components included in the American medical care "big picture." There are problems and complications identified by Dr. Pearl and others. There is data suggesting that America may be struggling with issues not dissimilar from the rest of the world. There is a seemingly endless parade of contended issues, alleged failures, and purportedly "bad actors." It is complex without a doubt. However, it seems likely that there are solutions more imaginative than shoveling money. Perhaps if the bigger issues were addressed, care refocused on patients, and innovation encouraged, the costs could be reduced? 

That is not to criticize shoveling money as "a" solution. It seems fair for the country not to interfere with those who wish to attempt to solve their own problems with their own money. However, it seems that shoveling taxpayer money at a problem should come with some assurance that simultaneous efforts are engaged to streamline waste, to leverage consumer participation, and facilitate good healthcare outcomes. 

Of note, some perceive government intervention and management a poor solution to any problem. An attendee at a recent gathering challenged me to name a single government agency that has (1) remained focused on the goal for which it was created, (2) made significant progress on its mission, and (3) did not grow exponentially in size and budget. I was not able to, are you? This attendee contended that the Department of Energy (DOE) was formed in the 1970s to address our dependence on foreign oil. That has allegedly morphed over time. Upon return to the office, I read that some contend the main accomplishment of DOE has been its own growth in personnel and budget - "the result of 15 years of searching for something to do." Will healthcare benefit from more government intervention, regulation, and management? 

It also seems fair in this national healthcare debate that we hear no more lies and deception like "you can keep your doctor." We should avoid fanciful promises to suspend the laws of economics. Scarcity is real, the effects of demand are real, and only in Utopia can everyone have as much of anything as they want. To increase access to relevant and affordable care, it is time that we focus on how to deliver better quality health care, with patient engagement, without endless tests, consultations, and procedures that do not contribute to the diagnosis and treatment of the problem. And, while we are at it, we have to focus on preventative care. We will have to get America off the couch and somehow regain activity, exercise, and all of its benefits. 

Can we improve American healthcare? Absolutely. Is the solution in forcing people to do things they find distasteful? Is the solution only to be pursued in "finding" money to shovel at the existing and inefficient cost paradigm? It seems probable that there are a great many issues that could benefit from attention, could increase efficiency, and could decrease costs. Perhaps it is time to focus our efforts on the process and its shortcomings, rather than merely trying to find enough of other people's money to continue to fund those various shortcomings?

pricing transparency

Opioids can Interfere and Complicate

In May, WorkCompCentral reported Court Reinstates Denial of PTD Award for Worker With Opioid Addiction. In Borkovec v. Dish Network, Case No. 17-0743 (Iowa Ct. App., May 2016), the issue of opioid dependence is aptly illustrated.

The worker in this instance was injured in 2009 when a "drunk driver crossed the center line and hit (his) vehicle head-on." The Court noted there were "significant work-related injuries," and another person died in the collision. The injuries required multiple surgeries, "intensive therapy, and continuing treatment for pain." His recovery concluded at maximum medical improvement (MMI) and a 34% permanent partial impairment was imposed. At that time, "some addiction issues with opioid medication" were noted.

In 2014, the treating doctor mentioned that "chronic opioid use can create a hyperalgesic effect." This is an "overly sensitive" reaction "to pain otherwise reduced by the use of opioids." A year earlier, another physician had noted "slow speech and thought processes along with impaired judgment and insight." That doctor had "recommended a comprehensive pain management program," but the injured worker was rejected by multiple programs. A third doctor opined that the injured worker, in 2014, was "not at MMI for his opioid addiction."

This third doctor recommended "in the strongest terms," that the injured worker "be taken off of these medications if at all possible.” A deputy workers’ compensation commissioner concluded that the worker was "permanently and totally disabled (PTD) and an odd-lot worker based on his physical injuries," but that he "had not achieved MMI for his mental conditions or his opioid addiction." The Workers Compensation Commissioner affirmed the conclusions of causation of the worker's injuries, but because the worker was not MMI for the opioid addiction, she reversed the award of PTD. She concluded that treatment of the "opioid addiction . . . would likely significantly improve his functional capacity."

The matter proceeded to the district court, which disagreed. It concluded that "treatment of (his) opioid addiction would not significantly increase his physical functioning and ability to return to work" The court reinstated the award of PTD benefits, and the employer appealed. 

The appellate court explained its standards of review. A recent post Abuse of Discretion (June 2018) mentioned how these standards are applied by appellate courts. When acting within their appropriate scope, appellate courts follow these standards strictly. The Iowa Court noted it was bound by the trial judge and Commissioner's factual findings. and provided a lucid and clear explanation of the "substantial evidence" review standard. The Court dissected the various medical opinions regarding the injured workers' capabilities and physical restrictions. Some of those were clearly related to the physical injuries for which he had reached MMI. 

However, the Court did not agree with the worker's claims that his physical injuries are so disabling that his opioid addiction is irrelevant or superfluous. Of note, "at least two medical experts have indicated that additional treatment for [opioid] dependency should result in improved functional capacity and significant improvement." The Court noted that some of the worker's activity restrictions were directly related to "significant narcotic medications” that are part of his treatment regimen.  

The Appellate Court concluded that the "Commissioner’s findings of fact were based on substantial evidence," and were therefore appropriately affirmed. It reversed the district court and reinstated the Commissioner's decision that the conclusion of PTD was premature in light of the ongoing opioid use and issues. 

The decision was not unanimous. Judge Danilson concurred in the outcome but wrote a concurring opinion to express concern. Judge Danilson feared that the injured worker would either be unsuccessful with overcoming addiction or would remain significantly impaired even if addiction were overcome. The Judge noted that after "a good faith effort to overcome" addiction, the "healing period should end," and at that time the overall impairment and entitlement to benefits should be determined. Judge Danilson cautioned that the worker "should not be held hostage endlessly on some slight glimmer of hope he may be employable with very substantial work restrictions in the future."

The points are worthy of consideration. Should a worker be labeled as "permanently disabled," before reaching maximum medical improvement for all conditions? Should the severity of the conditions for which MMI has been reached contribute to answering that question? In other words, if a condition that has reached MMI is itself totally debilitating, should ongoing remedial care for some ancillary concern preclude rating and compensation? Does the analysis suggest any caution in regard to the provision of, the amount of, opioids in workers' compensation injuries? When a treatment regimen starts down the opioid path, what future implications does that hold?

The casual reader, from just what is set forth above, will see that there are complexities in workers' compensation. The work injury can be influenced by the condition and health of the worker that exists at the time of injury (pre-existing conditions) and by things that occur after (complications). And, those are worthy of thought and discussion. The medical complications of opioids are clear from this Iowa example, but as a potential complication, medication is perhaps one among many? 

Another implication worthy of note is that the use of medications, application of modalities, and treatments are used by Medicare to predict future care needs. When determining the likely cost of future medical care at the time of settlement, the cost of past treatment can be used to project probable future expenses. Thus, the prescription of opioids, benzodiazepines, or other long-term medications may complicate or even frustrate the potential for settlement in states that allow settlement of future medical care (which implicates Medicare). 

The prescription of medication is thus a broader set of considerations that are worthy of consideration. The payer in the equation has the motivation to monitor the use of prescription medication and to consider alternative modalities and efforts. There are potential downsides to prescription medication. They include the costs of addiction, withdrawal, and settlement. But, more importantly, there is a human cost to addiction. Payers would do well to ask what is in the best interest of the injured worker, holistically, medically, and vocationally. Decisions about how to heal should include consideration of whether today's modality (opioids) creates tomorrow's complication (addiction). And, the focus should remain on the human being that is being treated. 

Overprescription alone may not be at the root of today's American overdose and death, but The Atlantic and others suggest that it played a significant role. Opioids are killing Americans. Some are prescribed and others from the street. They involve risk, of a hyperalgesic effect, addiction, disability, and even death. The potential downsides, today and tomorrow, should be considered by all involved when treatment is planned and executed. It is possible that in some instances the cure may become as significant a problem to a particular human being as the injury itself. 

Defamation in the News

In 2017, I penned The Litigation Privilege (October 2017). It is an overview of the privilege that applies to statements and comments in litigation. It is similar to the privilege that applies to debates in legislative processes. The crux is to allow the parties in litigation to make their respective allegations and arguments without fear of being sued for the defamation torts, "slander" and "libel." A great many people struggle to remember the distinction between these. I remember by association, that "slander" is "spoken," both beginning with "s," and the written defamation, "libel" is the one that is written (or "not spoken").

In 2018, the Nevada Supreme Court decided Fitzgerald v. Mobile Billboards, Case 72803 (May 3, 2018). The Court was called upon to explain the difference between "absolute" privilege and "conditional" privilege. Under Nevada law, there is a distinction when it comes to litigation. 

The injured worker filed a workers' compensation claim. The employer "made statements to the insurance company expressing concern regarding appellant's usage of prescription pain medication." Specifically, the injured worker "was attempting to obtain more and different prescription painkillers after his industrial injury, that multiple prescription painkillers, and prescriptions for additional painkillers, were found in [his] personal property."

The insurance company wrote to the injured worker regarding the employer's concerns and "repeated the statements to (his) workers' compensation doctor." The injured worker therefore filed a complaint for defamation in the district court the carrier for repeating those statements. He alleged they "were false and harmed his reputation and livelihood."

The Court explained that in Nevada, the absolute common law privilege applies to workers' compensation proceedings, and other "quasi-judicial proceedings." That is a general rule regarding the "litigation privilege."

However, the legislature specifically addressed privilege as regards the inappropriate seeking of medication. For that specific provision of the law, the legislature instead created a specific "conditional privilege." The "common law" as inherited from our British roots, and as comprised of judicial decision after decision (precedent) can be changed, or "abrogated," by legislative action. Statutes can change the common law. 

In analyzing the employer's statements at issue in this case, the trial court (not the workers' compensation judge as this dispute was in the defamation legal proceeding in which the employee sued for damages) applied the overarching common-law absolute privilege. The Nevada Supreme Court reversed and instructed that the analysis, when there is a specific statutory provision, should focus on that specific rather than on the general provisions of the common law. That in itself is a pertinent reminder for practitioners. 

The trial court applied the absolute privilege and dismissed the injured worker's case. The Supreme Court cautioned that dismissal before trial was appropriate in Nevada only when "it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [him] to relief." 

The Court explained that the absolute privilege requires a demonstration of two elements:

"(1) a judicial for quasi-judicial] proceeding must be contemplated in good faith and under serious consideration, and (2) the communication must be related to the litigation." 

If these are satisfied, then the privilege applies and "acts as a complete bar to defamation claims based on privileged statements."

However, the Court explained that the workers' compensation law has a more specific privilege. It "precludes liability in a defamation suit for certain statements made in relation to a violation of" that law. This privilege provides protection within workers' compensation proceedings, but only if the "defamatory statement is made in good faith." The Court concluded that the "Legislature did not believe that, in the context of a workers' compensation claim, speaking freely about a person's actual or perceived violation of NRS 616D.300 outweighed the risks of statements made with malicious intent."

Thus, the Court concluded that the "absolute privilege" with no reference to malice or good faith, had been rejected by the legislature in these specific proceedings. Thus, it had constructed an alternative, conditional, privilege in the workers' compensation law. The Court held "the common law absolute privilege has been abrogated by the statutory conditional privilege" in this context. 

The case was remanded (back to the trial court) for re-analysis of the allegations in light of that conditional privilege. The Court instructed that the case would proceed to a jury only if the trial court determined that there was "sufficient evidence for the jury reasonably to infer that the publication was made with malice in fact." If there was not sufficient evidence of actual malice, then the appropriate outcome would be the dismissal of the case based on the conditional privilege. 

The decision is instructive on the process of statutory abrogation of the common law. Litigants may wish to be aware of how statutes like the workers' compensation law change common law. It is also of interest regarding the expression of information that is potentially libel or slander. The definition of defamation includes that statements are "untrue." Possibly the best defense against such allegations, therefore, is not the legal analysis of privilege as explained by the Nevada court. Perhaps instead, the best defense is truth?

Solving the Wrong Problem?

There has been a lot of excitement about the 6th Edition of the American Medical Association's Guide to Permanent Impairment. The story is not new. Rumblings about the implementation of the 6th Edition, without formal adoption, began with earlier editions. See Madrid v. St. Joseph Hospital, 928 P.2d 250 (NM 1996). 

More recently, and specifically as regards the 6th Edition, Pennsylvania has struggled. That is discussed in some length in As Florida Waits (September 2015) and High Court Magnifies Protz (June 2017). The short story with Pennsylvania is that invalidating the methodology of adopting the AMA 6th impaired the entire IRE, or Impairment Rating Evaluation process. 

In August 2018, the Kansas rendered Johnson v. US Foods, ___ P.3d __, Case No. 117,725 (KS 2018). Johnson may be reviewed by the Kansas Supreme Court, according to WorkCompCentral (pay subscription) on September 6, 2018. This was not about the adoption process for the AMA 6th Edition, but a due process indictment of the 6th Edition itself. The injured worker was assigned a 6% whole-person impairment under the 6th Edition, following injury and a spinal fusion. However, the same doctor who assigned that rating also opined that under the AMA 4th Edition the impairment "would have been 25%." 

The injured worker complained that his "award" for the neck surgery was $14,810.80 under the law. The Court noted that had the legislature not adopted the 6th Edition, his "award" calculation "would have been nearly $47,000 greater," in the amount of $61,713.70. As such, the legislative adoption of the 6th Edition reduced the workers' recovery, in which it also determined he had a constitutionally protected property right. 

A prominent physician involved in the publication of the AMA 6th Edition, Dr. Christopher Brigham, noted the Johnson decision at the WCI conference in August. WorkCompCentral reported on that in Sixth Edition Author Suggests Multiplier to Adjust Impairment Ratings. The doctor accepted that medical determinations of impairment could have the effect of changing the amount of compensation benefits provided. 

He therefore suggested that "states can offset low impairment ratings with their own tweaks to the ratings." His suggestion, however, seems directed not to tweaking the ratings, but to tweaking the various statutory calculations that are dependent upon the ratings. He suggested that "If states think the ratings are too low, they can come up with a multiplier, say 1.4 or something." These states could thereby maintain the payment level to injured workers and nonetheless embrace the 6th Edition. 

That was an interesting proposal. As I read the WorkCompCentral story suggesting a multiplier, I was reminded of a Dilbert cartoon from years ago. In it, Dilbert complains that he is being sent on a trip to teach Cobol (common business-oriented language), a computer program. Dilbert explains to his boss that his associate Wally is the expert in Cobol, but the boss notes "Wally was busy that day." Our pragmatist Dilbert suggests rescheduling the class, to which the boss replies "Okay does tomorrow work for you?" Exasperated, Dilbert exclaims "You're solving the wrong problem." And that punch line reverberates through my brain as regards impairment. 

American workers' compensation struggles with the interaction between injury, impairment, and disability. To some degree, that struggle stems from the legal system's insistence that our medical brethren deliver opinions grounded not in science or medicine, but in law. An excellent example is maximum medical improvement (MMI), discussed in Artificial and Arbitrary Distinctions (May 2016). Doctors do not care about MMI. That determination is of no use in diagnosing or treating a medical condition or complaint. But, we in the legal field nonetheless compel doctors to make that MMI determination. The legal system insists that doctors spend time on decisions of no relevance to their prime function - the diagnosis and treatment of people. 

Permanent Impairment is a similar issue, also discussed in Artificial and Arbitrary Distinctions (May 2016). The doctors did not become involved in impairment because it enhances diagnosis or treatment. The doctors became involved because legal processes demanded quantification, and with that requirement came the unsurprising realization that doctors are human, individual, and sometimes opinionated. Those who litigate, and who sought these ratings, quickly learned that different doctors could have different opinions on questions like impairment. Thus, having lured the medical profession into a chore of little interest to it, the legal system pushed for uniformity or at least a modicum of consistency. 

Viola, the Guides to Permanent Impairment was born in the 1970s. Fifty years later, the guides are middle-aged. The imperfections and wrinkles have begun to show. Periodically over the years, the Guides have undergone surgery to adjust their conclusions. Some efforts have been cosmetic and others perhaps could be characterized as actually remedial. Unfortunately, each attempt to smooth them out in one spot has seemingly either caused or illuminated perceptions of wrinkles in another. The solution it seems is to keep doing plastic surgery on them. 

Dr. Brigham's proposal at WCI is similar. He is essentially saying that the Guides 6th Edition is appropriate and scientific. He suggests that if the conclusions of the Guides are not to someone's liking in terms of benefit calculation, the solution is not to ignore the knowledge of pathology and healing expressed in the Guides but to change the effect of those ratings. In all, not a bad suggestion if I am correctly understanding his proposal (shameless plug, I hope to ask him more about this at the Workers' Compensation Hot Seat on September 20, 2018; register here). I will be curious also to hear what workers' compensation guru Alan Pierce has to say on that thought. 

I would suggest, however, that much like Dilbert's boss, we are "SOLVING THE WRONG PROBLEM." The calculation of an impairment rating is not the problem. I would argue that even the statutory formula that converts that impairment to some measure of dollars is not the problem. The real problem is that both the legal and medical communities seem content to unquestioningly accept that somehow impairment is relevant. I would suggest, for the sake of discussion, that it is not. 

As an exemplar, I would direct attention to the Florida Act, specifically Section 440.015: 

It is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer. (Emphasis added). 

Simply stated, workers' compensation is about disability. Disability is defined by Webster's 

a physical, mental, cognitive, or developmental condition that impairs, interferes with, or limits a person's ability to engage in certain tasks or actions or participate in typical daily activities and interactions

That is, limit on tasks or actions or participation. Workers' compensation systems have struggled with compensating injured workers. Statutes have defined and calculated benefits to compensate for either "impairment" or "disability." But, the overarching theme of workers' compensation is clearly disability. That is true also in the common law right to redress, which workers' compensation both precludes and replaces when it comes to workplace injuries. 

A human body might suffer an injury by accident which results in the assignment of a low or high impairment rating. There are workers' compensation systems that would then provide compensation based on that impairment rating regardless of the existence of any disability. For example, a Florida worker with a 50% impairment would be entitled to 235 weeks of "impairment benefits" (it is a "sliding scale" entitlement, set forth in full at the bottom of this post) Section 440.15(3)(g), F.S. 

That employee would be so entitled, even if the moment after reaching MMI the employee returned to work. That is, returned to work earning as much as pre-accident, or even earning more. This hypothetical employee would receive benefits, though she/he suffers no loss or either actual earnings or earning capacity. Those weeks of benefits would be to compensate the worker for the "impairment" that is published in a book, and related to the injury and care that has been rendered, and the ultimate outcome. But, nonetheless, the benefits would be based not on "disability" but "impairment." 

So, if the impairment does not measure disability, why then is it used? Some will argue that impairment is appropriate because it is determined by the physician rather than the patient (a patient might say "I can't work" or "When I work this [symptom] occurs"). With the involvement of the doctor, and the reference to the published Guides, there may be those who believe that consistency and transparency are achieved, and from that limited definition conclude "fairness" results. 

However, the opposite outcome is also possible. Could a patient be rated with a 1% or even 0% impairment and yet be utterly incapable of returning to work as a result of the work accident? Some would argue that is possible. The WorkCompCentral article points out that some maladies in fact result in an impairment of 0%. Thus a productive worker is injured on the job, medically treated, assigned a 0% impairment, and is utterly incapable of work. However, the impairment benefit model discussed above would provide no compensation for that complete disability, as it reacts only to the impairment. 

In an impairment-driven calculation, a worker fully capable of work without loss of earnings might receive years of benefits while a worker with no hope of working, but a minimal impairment rating, might receive little or nothing. 

The fallacy in the impairment guides is arguably not that they change over time. The weakness is not necessarily that those guides might be influenced in their formulation or application by human imperfection. The weakness, the "right problem" to fix is perhaps that workers' compensation is a medical and disability substitute for common law, for negligence, for tort damages. The key word is "disability." Certainly, one may successfully argue that disability is harder to prove, to disprove, and to evaluate. It may be less objective and more subjective. Determinations may be less consistent, and require more determinations of fact. But is the answer to those difficulties an abandonment of the disability concept? 

Some will return time and again to the objectivity argument. Impairment guides, they will tell us, produce consistent financial results based upon an objective standard. Perhaps that argument wins the day. But, if it does then why not merely use a height standard? The statutes could award benefits not relative to the impairment rating, but to the patient's height. Four feet tall to four feet six inches receive "x" weeks per inch; for every inch between four feet six five feet, "y" weeks per inch, etc. 

This is a preposterous proposal, and yet it is as transparent and objective as the impairment guides model. If the ultimate goals are objectivity, transparency, and predictability, the "tape measure" model is as efficient as any, and arguably as relevant as the impairment process. And, of course, there might be litigation over which tape measures were being used. 

However, I would suggest that if there is perceived a problem in the current setting then perhaps Dilbert is right on point. Perhaps it makes more sense to return to the roots of workers' compensation and to statutorily define benefits based on disability. That is, based upon the economic impact that a particular injury and its effects have on a particular worker. Perhaps it would be less consistent and transparent, perhaps it would be more work, but it is true to the roots of workers' compensation, disability, and ability. The systems might just benefit from remembering workers' compensation's roots, what workers give up in the grand bargain, and why disability matters.

Section 440.15(3)(g):

(g) Notwithstanding paragraph (c), for accidents occurring on or after October 1, 2003, an employee’s entitlement to impairment income benefits begins the day after the employee reaches maximum medical improvement or the expiration of temporary benefits, whichever occurs earlier, and continues for the following periods:

1. Two weeks of benefits are to be paid to the employee for each percentage point of impairment from 1 percent up to and including 10 percent.

2. For each percentage point of impairment from 11 percent up to and including 15 percent, 3 weeks of benefits are to be paid.

3. For each percentage point of impairment from 16 percent up to and including 20 percent, 4 weeks of benefits are to be paid.

4. For each percentage point of impairment from 21 percent and higher, 6 weeks of benefits are to be paid.

A Disciplined Attorney and Repercussions

The case of The Florida Bar v. Douglas is perhaps an intriguing commentary on the self-regulating bar in Florida. The Florida Supreme Court recently granted Mr. Douglas' Petition for Disciplinary Revocation. He essentially asked the Court to disbar him, and the Court agreed in a June 7, 2018 Order. 

The discipline has made the news: Daily Business Review, South Florida Business Journal, The Florida Record, and WorkCompCentral.

Mr. Douglass is a 41-year-old (now former) attorney who has practiced law in Florida for 14 years without ever encountering discipline from the bar. In the petition, he acknowledged that various clients may have been impacted by his actions. It lists Jason Jones, David Morales, Benito Antonio Jimenez, Juan Perez, Margaret LeBlanc, Mildred Ruiz, Vanquist Smith, and Liliana Henao. Eight people whose lives have been touched by an attorney. 

The petition asserts that some of these clients suffered financial losses. Allegedly, some had their workers' compensation case settled, but did not receive the proceeds. This includes Jason Jones ($175,000), David Morales ($6,000), Benito Jimenez ($6,400), Margaret LeBlanc ($15,000), Mildred Ruiz ($6,250), and Vanquist Smith ($10,000). That totals $218,650. Another, Liliana Henao, had a personal injury case, which was allegedly settled for $110,000. None of these injured folks were provided with the proceeds of these settlements, totaling almost $330,000. In addition, there were other complaints regarding Mr. Douglass' alleged "lack of communication" with clients. 

A member of The Florida Bar is "a public citizen having special responsibility for the quality of justice." Rules of Professional Conduct, Preamble. A lawyer is required to keep a client informed about the status and progress of representation, Rule 4-1.4. The Florida Bar Rules require attorneys to abide by the client's decisions (Rule 4-1.2) and be loyal to her/his client (comment to Rule 4-1.7). There are many rules for lawyers.

Mr. Douglass asserted that the Supreme Court granting his petition "would not adversely affect the public interest" or the "confidence of the public in the legal profession." And, he agreed "to reimburse the Client Security Fund (CSF) for any and all funds CSF has paid or may pay out for claims resulting from Petitioner's misconduct." Finally, the petition specifically notes that Mr. Douglas will be able to "seek readmission," that is regain his license to practice law, at some time in the future. That may not mean he is readmitted, but it means he can ask to be. 

The Rules Regulating The Florida Bar, Chapter 3, provides definitions, processes, and procedures for disciplining attorneys. There is a specific rule that covers the "Reinstatement and Readmission Procedures," Rule 3-7.10. This provides a litany of factors that may be considered in determining fitness for readmission, these are categorized under "disqualifying conduct," "determination of character and fitness," and "elements of rehabilitation." The lists are lengthy and seemingly broad. 

Notably, the "elements of rehabilitation" include "strict compliance with the specific conditions of any disciplinary, judicial, administrative, or other order." Seemingly, that will mean that if the Bar considers readmitting Mr. Douglas, almost $330,000 will have been repaid. It seems important that the public know that admission to The Florida Bar is never a right, and always a privilege. I think sometimes, in the stress and strain of daily life, some attorneys forget that. Hopefully not often, but some undoubtedly do. 

It is also important for the public to know that The Florida Bar has established a Client Security Fund. If a lawyer steals money from a client, the Security Fund is a potential source of replacement funds. The Fund is governed by specific regulations. For example, allegations must be made in a timely manner (usually 2 years after the date the disciplinary action becomes final; the Fund may have some discretion for claims after 2 years, but not after 4 years). The regulations intimate that access to the fund may be dependent upon the bar taking disciplinary action against the attorney. 

Before seeking money from the Fund however, the client must seek reimbursement or payment through other means, and must "reasonably exhaust other remedies." This includes insurance and bonds the attorney may have. The Fund also "may require that the claimant file a complaint against the attorney with the appropriate state attorney's office; file a civil suit in an appropriate court," or otherwise seek redress. So, criminal restitution or civil damages may be a potential prerequisite. The Fund is a last resort, it will not pay "where the claim might be payable from any other source."

It is notable that lawyer discipline proceedings can take months or sometimes years. The complaints detailed in the petition are all numbered in 2018. In fact, Florida has been noted by some as exemplary. Recently the Milwaukee Journal Sentinel praised "the swift action by Florida" in a case involving a lawyer licensed in both Florida and Wisconsin. It noted the Florida process "shines a light on how different states handle attorney discipline." 

So, there are lessons from Mr. Douglass' petition. First, lawyers should keep their clients informed and clients should strive to encourage that communication. Second, lawyers have extensive authority in their relationship with clients which requires both lawyer's and client's respect and appreciation. Third, if a client concludes that she/he has not received something they are due, contacting The Florida Bar is a smart place to start. Remember, access to that Security Fund may depend upon the Bar taking disciplinary action, and that process might be instigated by the Bar or might not begin until a client makes a complaint. Finally, it is critical that clients understand that receiving compensation may require time, various assorted actions, and diligence. 

And in conclusion, it is worth mentioning that the story of Mr. Douglass may in fact affect the "confidence of the public in the legal profession." It is difficult sometimes to understand that people we trust will let us down. But that is a fact of life. Not to say everyone we trust will let us down, but we will all have people in our lives who disappoint periodically. We would like to think our attorney would not let us down, but Mr. Douglass reminds us that attorneys are human and therefore clients should pay attention, communicate, and demand the respect of those in whom they place their trust.

Let them Eat Brioche?

As we reflect on Labor Day, and the role of people in the production and consumption of goods, I look back again at socialism, universal income, and the coming robot apocalypse.  

In 2015, I approached a socialistic proposal in Universal Income (November 2016). The idea is that the government would provide a payment each month to everyone. No strings, no quid pro quo, just receive a monthly check from the government. That post includes some rudimentary calculations of what such a proposal could mean to the U.S. budget. A fundamental question left unanswered then was where the funding would come from. Playing on an old Doritos ad that suggested you "crunch all you want, we'll make more," I have periodically suggested a new motto for our federal government budget "Spend all you want, we'll print more."

This universal income was back in the news recently, as The Independent reported that 40% of British People currently support the idea. A British politician announced their intention to pursue a program of establishing universal income. The proposal is to begin with "locally led" program trials, focused on stemming "rising economic insecurity." The article explains that generally, this would replace "welfare" and "means-tested benefits," with a simple "unconditional flat-rate payment to all citizens." Note that focus on "all." 

In July, CBS News questioned Will it Work? It notes the coming robotic apocalypse, with a focus on service jobs. The feature of the article is a robotic barista in San Francisco. There is effusive praise for the effectiveness and efficiency of the robot barista. CBS says it is "not a bad-looking future," and then equivocates "unless you are a human barista" (is everything in life about whose ox is being gored?) It then notes one estimate that 30% of current employment is susceptible to replacement by technology.

While the barista issue is news to me, I have seen a robotic bartender firsthand. I have watched people gather to watch as patrons use touch screens to specify their order. They are frankly mesmerized as the robotic arm swings into motion follows its programming, and produces some complex concoction. During the time I watched, no one ordered anything mundane like scotch on the rocks or a shot of tequila. The public's interest was obvious, from the slew of observers that abstained from ordering and yet stopped to watch and take selfies. 

CBS interviewed a former labor secretary, under President Clinton. He contends that the idea of universal income is fraught with "mysteries and potential flaws." However, despite the challenges, he contends that "it's inevitable" that we will have to "seriously consider" universal income. Thus, he does not seem to contend it must be adopted, but that it must be discussed. There is a concession by CBS that the concept is not novel, noting that this "Utopian" ideal dates to the 16th century, and has been discussed more recently by leaders such as Richard Nixon and Martin Luther King. 

Universal Income, "a guaranteed minimum income for all people and for all families of our country," according to King (again note that "all"). But a professor at the University of California Berkeley notes that "it's not free." She contends that to finance "basic income for truly poor people," there would have to be a "significant amount of additional revenue." Note that without fanfare or explanation, the discussion swings from "universal," something "for all people," and refocuses upon the "truly poor." Not for "all people," but a program for the "truly poor" would require significant revenue. Despite her view of cost for this limited focus, the Berkeley economist does not address what the cost would be for "all." 

It is important to remember that the government has no money, earns no money, and produces no money. Government is a consumer of money, taking it forcefully from those who do produce it (you). The government can only give away with one hand what it confiscates with the other. Government can borrow money, print money, and take money. However, it does not historically make money (earn income by producing). There must be income to facilitate re-distribution. And, that is the real "challenge" and "flaw" that has yet to be explained adequately and perhaps has not even been sufficiently questioned or discussed. 

If everyone is provided with some level of support, with "everyone," or "all," being the definition of "universal," who would produce anything, in order to generate taxation to fund the largesse? For simplicity, a family might elect such a program. In a home where there is one income, from a "breadwinner," imagine that the bills (mortgage, utilities, food) must be paid, just as our nation must have defense, infrastructure, etc.). The family might be in a paradigm where each has chores or tasks, and in exchange, each receives income from what remains after those mandatory bills.

With the advent of "free" labor from robots, the family members decide that there will be a "universal" income. That is, the "remains" of income will be distributed to all "family members" equally. Thus, the advent of robotics will not inure to anyone's detriment. This all seems perfectly logical perhaps, until the "breadwinner" decides that she/he too would rather have universal income than work and bring home the bread. When the breadwinner quits producing income for the family, from whence does the support (mortgage, utilities, defense or infrastructure) come? And, more to this specific point, from where does the remainder for funding universal income for all family members come? 

Of course, that does not per se mean that universal income is not viable. That one breadwinner might be able to quit producing and elect instead to consume. But that could remain viable because this hypothetical family is but one among many. So long as there remains some other population of producers, from which taxes can still be extracted, then distribution to and within that one household or family might still continue. The question is what happens when those receiving distributions outnumber the producers? 

Finland recently ended an experiment in universal income. According to on opinion piece in the Orlando Sentinel, the Finland experience is relevant while discussions in that direction continue here. Notably, it references that some very rich Americans have "expressed support" for the concept. Then it explains Finland attempted to provide "2,000 unemployed people with $685 a month whether they found work or not." And, that program has now ended. 

Why did the Finland foray into universal income cease? The Sentinel piece describes that 

"Proponents said the program wasn’t comprehensive enough to gauge its merits. Critics say it would have required a 30 percent tax increase on an already over-taxed population to be viable." 

That is troublesome from both perspectives. One perspective laments that not enough money was distributed or not enough people were beneficiaries. The conclusion apparently being that universal income cannot be evaluated based upon the obvious mathematical failure of the micro-experiment (the one family example above). The other perspective laments that the cost of the program is too high. Its conclusion apparently being that it is greedy or inappropriate to resist contributing another 30% of ones income in support of our fellow man. Neither perspective is seemingly satisfied with the outcome.

Considering this concept, I am reminded for some reason of Marie Antoinette. Supposedly, upon being told that her subjects were starving and lacked bread, she replied "Let them eat cake." This response is often used to illustrate the frustration of the proletariat, a disconnect of perspectives, and tone-deafness in leadership. There is debate as to whether she said the "cake" line, with some contending it was brioche (perhaps a distinction without a difference). Whether she said it or not, things did not work out too well for Marie in the end. And, societal change followed her reign in France.

The subject of universal income continues to garner attention, discussion, and even proposals. Wired recently published an opinion piece referring to the "paradox" of universal income (UBI). This author claims that conservatives and liberals alike are among the proponents and the critics. He contends that each perspective expresses different perceived benefits and detriments. The article contends that income distribution is a significant American problem, despite decades of wealth redistribution in both "direct cash payments or some sort of negative income tax." It is apparently taken for granted that income redistribution is positive.

As an aside, the mention of a "negative income tax" is intriguing. One exists in America, called the "earned income tax credit." Voltaire, who lived when Antoinette did, is quoted as saying that "the Holy Roman Empire is neither Holy, nor Roman, nor an Empire." There have been those who have been equally and similarly as critical of the phrase "earned income tax credit."

Whether distributing funds as welfare, workfare, or a tax "rebate" of taxes never collected, America has a significant history of wealth re-distribution through taxation and spending. Despite that significant history, Wired contends that income disparity remains a significant economic effect today.

It is perhaps that history of income distribution that people rely upon in discussing how income can be redistributed with seemingly much less discussion of whether income should be redistributed. The population of Americans who remember a time before Lyndon Johnson's Great Society (1965) is diminishing. The population that knew America before Franklin Roosevelt's Work Progress Administration (1939) is even thinner. An adult worker (18 or older) in 1939 was born in 1921 or before and is 97 years old or older today. Most Americans have coexisted their entire lives with some form of socialism.

The Wired author admits he has "avoided actually having a firm opinion about UBI for years." As the debate continues, he has concluded that now is the "time to get my head around it." It seems historically inevitable that socialism will remain a subject of discussion in modern America, and as inevitable that the robots are coming. The likelihood remains that universal income or other wealth redistribution will remain part of those debates. And so, it seems the Wired author's decision to get his "head around it" may represent sound advice. Perhaps it is time that we all decided to get our "heads around it" as the debate continues?

The Perverse Upshot of the Internet

The world evolves around us. Technology is driving some of that change, but so too are likely generational, cultural, and individual factors. Recently, Fortune reported that the CEO of Twitter will appear before a Congressional committee in September to discuss "Twitter’s evolving, and sometimes vague, policies regarding what content is and is not allowed." Google CEO Sundar Pichai has declined to appear according to Bloomberg, leading to "bipartisan criticism." 

Free speech is an intriguing subject. In the current conversation, it is couched in terms of Internet platforms and logarithms, it also appears that some part of the national curiosity surrounding speech and the Internet may be based on our lack of universal agreement as to definitions and terms (what is "hate," or even "inappropriate" speech?). America seems unable to reach a universal agreement as to what speech is protected and what constraints should be imposed. There seems no shortage of those who would limit speech, but there is periodically criticism for a particular individual's motivation, or his or her focus on some specific topic (each seems eager to protect her/his own expressive rights, but as eager sometimes to stifle others). 

This is an issue for social media certainly; it affects platforms like Facebook, Twitter, Instagram, and more. However, the Internet is full of platforms with similar opportunities for commenting and rating of various professionals or businesses. There are platforms like Avvo, Yelp, Amazon, Better Business Bureau, and more. Hubspot provides a pretty good list. These all provide a platform to expound, to complain, but also for endorsement. Others see those postings and may comment either in agreement with or in opposition to those thoughts. There is an effect of generating debate, which draws eyes, and thus sells advertisements, 

Most of us realize that those platforms/softwares are protected from defamation liability by federal law. In 2015, I touched on the potential for defamation in The Internet, Evidence, and Defamation (April 2015), describing some of the history of defamation decisions regarding the Internet, and the implementation of the Communications Decency Act of 1996. In 2013, The Atlantic contended that this law "gave us websites like Reddit, Craigslist, Digg, and perhaps all of social media." While The Atlantic acknowledges this specific impact of the 1996 act, it expounds further in laudatory terms. The simplicity of this act, it contends, sent the message to entrepreneurs to "go innovate." 

The Digital Media Law Project provides an overview of this Act, and describes how this law deviates from "common law," our process of law constructed case upon case in which we strive to hold true in each case to the cases previously decided (we call each decision "precedent" and our striving to remain consistent with it "stare decisis" July 2016). While America was founded upon a common law model, over time we have changed, or "abrogated," common law repeatedly by legislation. The Project notes that: 

Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. 

Thus, in publishing a statement, a "book publisher or a newspaper" could generally be held liable for the statement under the common law tort of defamation. 

As the Project explains, this is based on the fact that ultimately a book or newspaper publisher has control over the content that is published. Such a publisher has the ability to read content, change content, and even reject content. Because the publisher has such control, it is seemingly appropriate for the publisher to share liability for the publication of false information.

This is not true for "distributors." As the Project explains, this logic does not support holding a bookstore liable for the content of a book. It notes "that it would be impossible for distributors to read every publication before they sell or distribute it." Furthermore, more practically, even if a bookstore owner did read the publication, would society expect that the owner would invest the resources necessary to fact-check the representations or statements in each book, or newspaper (it used to be common for publishers to print news stories and pictures on paper and the public would purchase it for home delivery or from a vendor or machine), or magazine? The distinction between "publisher" and "distributor" struck a compromise, based on facts and behavior.

In 1996, Congress stepped into the debate of Internet communications. The defamation subject at that time was not new. Back in those days, the online environments or platforms were sometimes referred to as "bulletin boards." These precursors of the current social media platforms, these "bulletin boards," allowed people to locate opportunities and conversations that were associated with their interests. 

For example, there might have been a bulletin board dedicated to modems, software, knitting, or something more mundane like workers' compensation law. People interested in a particular topic would search for and visit such a topic-specific bulletin board. There, she/he could read about the topic, share views, ask questions, and generally interact. Somewhat like a huge but specific "group chat" today, various visitors would post their thoughts, positive and negative, on these virtual bulletin boards. 

As the Project points out, Internet platform/software providers had been sued in the early 1990s for defamation based upon what Internet users had posted on their bulletin boards. The platform liability was analyzed under the same common law applied to others. Those providers had defended themselves arguing they were "like a distributor" as they "did not review the contents" of postings (as a "publisher" might). 

The Project describes how courts reached different decisions about whether such platforms were more like publishers (newspapers) or like distributors (bookstores). The extent to which platforms exercised "editorial control" whether by examining each post or through "content guidelines and software screening program(s)," was of some influence on the determination of the existence and extent of "control." What the Decency Act brought was more legally absolute. It merely said:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

And thus the platform/software/environment purveyors were essentially given immunity. The law made them "distributors" as a matter of federal law, and precluded the states from passing any law to the contrary. Congress can do that because the Supremacy Clause of the U.S. Constitution allows it to have exclusive authority in some instances. Admittedly, there are instances in which federal supremacy is nonetheless ignored.

The Project contends that this Act thus eliminated a "perverse upshot" that existed prior to the Act. It contends that this "perverse" outcome resulted when a provider attempted to keep things civil through the guidelines or software solutions. By attempting to keep things civil or to avoid the expression of hate or lies, the advocacy of violence or worse, the platform was seen as departing from the "distributor" role and assuming more of a "publisher" role. Thus, before the Decency Act, a platform was perhaps disinclined to exercise any control. 

The evolution of liability may be seen by some as a useful lens through which to appreciate the current state of the Internet in America. Certainly, there are "social media failures," instances in which companies have attempted to use (leverage) those platforms and failed to their detriment. There are also instances in which merely listing a business on a platform has led to regret. 

One interesting example is a frustrated small business owner complaining about Yelp on Yelp. One critical point of that post is the perception Yelp does "not filter negative remarks or comments, they do not verify them, they do not even know anything about whom or why the negative remark has been left ." In effect, the user complaint is that Yelp seems to act as a distributor rather than a publisher as regards negative reviews. However, the author of that post contends that Yelp contrarily filters positive remarks or reviews. Thus, that reviewer perceives that one platform selectively chooses which role to play depending upon the nature of the content. 

Note, however, that this Yelp user elected to list that business on Yelp. Perhaps not as purposeful as some of the more newsworthy social media failures that make the news, but intentional. There are also platforms that include businesses that have not elected to be included. Avvo is a lawyer rating platform. The National Jurist recently explained why all lawyers should claim their Avvo profile, noting "Nothing you can do, aside from abandoning your license, can remove your Avvo profile." If you are an attorney, you will participate in this platform. There is no election, no choice.

On Avvo, similar to other online review platforms, "attorneys cannot prevent a disgruntled client from leaving a negative review." There is the opportunity to respond to such a review, but Avvo chooses to engage a profession involuntarily. The ABA Journal has reported on various lawsuits filed against Avvo, mostly unsuccessful. That may be seen by some as a significant distinction from Facebook, Twitter, and even Yelp.

There are perceptions that platforms have evolved to now routinely exert editorial control over content. As in the Yelp user who contends that negative comments are unfiltered while positive comments are not. There are critics who contend that social media platforms like Twitter make value judgments about appropriate content, in effect undertaking a role more akin to a publisher than a distributor. 

In effect, critics argue that the immunity afforded by the Communications Decency Act of 1996 affords online publishers free reign to editorialize and control content with immunity from consequences. Whether a platform is a publisher or a distributor is not influenced by those editorial decisions regarding the content or even access. The Act removes any consequence for editorial decisions. Thus, after the Decency Act, a platform is now perhaps overly inclined to exercise control and enjoys near absolute immunity from the repercussions of those decisions. 

There are those who contend that this Act in its simplicity is the only appropriate course. They argue that the phenomenon that is social media cannot exist without this artificial, arbitrary, and near-absolute immunity for platforms. Others question that near absolute immunity, They contend that it artificially shields not only the neutral platform from the excesses of its users but also shields the activist platform now unfettered and free to editorialize with no potential of liability or responsibility. 

There will likely come debate over the Communications Decency Act of 1996; whether the broad protections are logical and appropriate, or whether they are too broad in protecting misfeasance, extending to absolutely also protect malfeasance. There may be those who see either the protection or the absence to each be a "perverse upshot." It may be that neither absolute immunity nor unfettered liability is appropriate, but instead, some compromise that is more moderate? Perhaps there will be a discussion of some more middle-of-the-road compromise between the absolute extremes of "all" or "nothing?"