CHANGING THE BURDEN OF PROOF—NOT “CONCLUSIVELY”. When there is conflicting evidence, the burden of proof is important. We are familiar with a “preponderance of evidence” test in civil cases and a “beyond a reasonable doubt” test in criminal cases. I had not encountered a burden of proof that required a proposition to be proved “conclusively”.

The issue was whether delays in treatment had affected health care for veterans at Veterans Administration hospitals. This article dealt with a report by the Office of Inspector General. The fourth paragraph in the article framed the issue: “In a written memorandum about the report, VA Secretary Robert A. McDonald said: ‘It is important to note that while OIG’s case reviews in the report document substantial delays in care, and quality-of-care concerns, OIG was unable to conclusively assert that the absence of timely quality care caused the death of these veterans.'”

It worked. Journalists tend to accept without questioning studies and reports, and the article—from CBS/AP— was headlined: “Veterans Affairs says no proof delays caused deaths at hospital”, and the article began: “The Department of Veterans Affairs says investigators have found no proof that delays in care caused any deaths at a VA hospital in Phoenix, deflating an explosive allegation that helped expose a troubled health care system in which veterans waited months for appointments while employees falsified records to cover up the delays.”

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  1. Where has common sense gone?

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