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October 15, 2004, 12:05 P.M.

From the mailbag: We received the following note from reader, Walt K.:

Hi Ed.

No Red Sox or debates to watch tonight, so I thought I would read your web page and get caught up after being busy working for the past few weeks.

I caught a little bit of Ralph Nader on Channel 11 the other night. As a candidate, why is he not allowed to participate in the debates? Is that fair?

This year I don't at this minute plan to vote for Ralph Nader. And, he will tell you right now, that he is not going to win the election. But something he keeps saying as his reason to stay in the contest is that someone has to put an end to the choice we continue to get in each presidential election. That is, we have to choose the "least worst" candidate.

If I am reading your commentary correctly, you have made your choice of John Kerry as the Least Worst. I am choosing Geopge Bush as the Least Worst. Your choice seems to be on the basis of Kerry's rational debating issues. The consensus is that he has won the series of debates. I, personally see serious character flaws in John Kerry. I just don't like the guy. I can't get past the smell to listen to him. So, my line of thought is along the Least Worst personal character.

So, what will happen in November? I think that Bush will win a by a slim margin on the basis of his character, and not how smart or right he is. Neither you nor I will feel good about it, because we chose the Least Worst to vote for, regardless of who wins.

Walt K

Walt, Thank you again for your thoughtful commentary.

I can't see, however, that Bush could ever be the "least worst." His campaign has been connected with campaign fraud, political dirty tricks and outright lying about his own record and that of John Kerry. Even if one were to say that Bush were not responsible for his campaign staff (although I think Richard Nixon previously tried that unsuccessfully) he is still guilty of being arrogant and misinformed. These are not qualities that are acceptable to me in a President.

Over 1000 young men and women have died in Iraq. The real story not being told is that 10s of thousands of soldiers are seriously and permanently injured and maimed, but there is no system in place to adquately care for them. Despite this, the President's rhetoric remains that we did the right thing and we had a plan. This is simply a lie, discredited not by opinion but by the bombs that continue to take American lives and limbs every day. What is worse is the poor treatment our injured toops receive when they come home; hell, we don't even talk about them!

This President and this administration use lies, distortions and dirty tricks to manipulate us. The revelations just yesterday in the U.S. District Court for the District of NH prove the connection between the Bush/Cheney campaign and the election fraud case surrounding the 2002 phone jamming scam. Jim Tobin, New England Regional Chair of Bush/Cheney 2004 is an unindicted co-conspiritor in that case. That case represented attempts to interrupt a get-out-the-vote effort. Today, there are investigations into election fraud in Oregon and Nevada, and -- hot off the press -- South Dakota and Ohio. I suggest that there will be other problems in other places, as well. These crimes have been directly linked to the RNC already and I believe there will be a connection to Bush/Cheney 2004.

I cannot see how Bush keeps this from sticking to him. The Swift Boat attacks and other personal attacks on Kerry have been disproven. The connections betrween the Bush family and the Saudis, Cheney and Halliburton and the RNC and election fraud are not even in dispute. Another 4 years of this administration will do this nation even greater harm than has been done in the past four years. I can't vote for that and sincerely hope that you will reconsider.

Ed

October 15, 2004, 12:00 P.M.

I noticed that in all of the debates there has been a tactic employed by the Bush/Cheney team that amounts to a lack of basic civility. Neither Bush nor Cheney would acknowledge or thank their opponents. My assumption is that they believe that by displaying contempt for Kerry and Edwards, they appear stronger or more correct in their opinions. Contempt really is the right word for the way it comes out. The Republican strategy has been to simply declare the correctness of their position, the righteousness of their cause and the steel of their resolve and to march on with their agenda. All who question them are treated with complete and utter contempt. Kerry, Edwards and their supporters are treated in such a disrespectful manner because they disagree, facts be damned.

The type of childish behavior displayed in this very public forum should be disturbing to everyone, including Mr. Bush’’s supporters. More than half of the voters in this country do not agree with the Bush administration’’s policies or its assessment of national and international issues. Those people deserve, if nothing else, to be treated with a modicum of respect. No such respect is evident.

This is same contempt that our government shows for the rest of the world community. You are either with us or against us. No middle ground, no compromise, no room for differing opinions, perspectives or views. The Bush administration, and hence our national government, has become myopic and isolated.

On the international stage, the result of this near-sighted and nationalistic world new is to leave our country economically, politically and militarily isolated. Our current world view makes us more vulnerable to attacks and makes the rest of the world community less inclined (for their own internal and international political reasons) to be supportive of our actions in support of our own perceived interests abroad.

We are less safe because when we stand alone, we are more vulnerable. In the very near future, China will be moving toward an industrial modernization unprecedented in world history. The program is already in place and will result in enormous growth in personal and national wealth for that country. China will soon consume the lion’’s share of the world’’s oil supply and our market share will decrease. We will thus lose our ability to control, by economic means, the world’’s oil markets. We will not maintain our ability to control those and other markets militarily either. With its industrial and technological modernization, China will also advance militarily and with its own nuclear arsenal, sophisticated weapons systems and seemingly endless supply (comparatively speaking) of manpower, China will always represent a counterbalance to American military hegemony.

At home, the arrogance of the administration sends a message that erodes the fabric of our democratic society. When you no longer respect the opinions of those with whom you disagree, you no longer have a need to respect their right to disagree. That is happening here now. When the President of the United States can’t say, thank you for challenging me, and for causing me to explain my policies and programs to our countrymen and thank you for being a part of our political process, or even for spending the time to be here, it becomes clear that the President has no respect for the process of government. The numerous instances of election fraud directly linked to the RNC and, in the case of the 2002 New Hampshire phone jamming scam, to the Bush/Cheney campaign, should worry all of us.

This lack of respect is also evident in this particular President’s use of the word, “I” in describing the plans, policies and purported accomplishments of his administration. It’s not supposed to be about him. It’s supposed to be about us. He certainly did nothing on the domestic, international or political front on his own, and he certainly did not do anything with the unanimous support of his countrymen. Dictators and kings say “I,” presidents say “we.”

As a result of the failure of the President to recognize and respect that differences of opinion are to be expected and encouraged in our society and our form of government, our civil liberties and civil rights are being eroded. The current administrations’ self-aggrandized world view leads to a culture of ends-justifying-means. Voter registration cards are being destroyed in Nevada and Oregon, not in Afghanistan or Iraq, in America, by people who are so convinced that they are right that they cannot accept or respect the differences of opinion encouraged by and fundamental to our system of government. A president who cannot look into the eyes of his opponent and say, “I respectfully disagree, but than you for taking the time to show up” sends the wrong message to those who would destroy the fabric of our society just because they are convinced that their way is the right way, and does not deserve to be our president.

Our nation and our society are cheapened by the single-minded “me” culture that is devolving in our country. George W. Bush, by example, is in the forefront of that cultural unraveling.

October 13, 2004, 9:30 P.M.

Other than the fact that he is seizing on quotes from John Kerry’s remarks and using them to try to support his view of John Kerry, the President is not saying anything new. I am bouncing between the Yankees/Red Sox game and the debate and I don’t feel like I’m missing much on either front. The playoff game, at least in the 4th inning, is a pitcher’s duel and the debate is nothing more than a showcase for tired rhetoric.

The President just said that he came to Washington, saw a problem with education and set out to fix it. Why is Kerry not challenging the President’s rhetoric on education and using the failure of the President’s “reforms” in Texas to support his arguments? The Houston school district example, and its architect, Rod Paige, should hang like an anchor around the President’s neck.

Likewise, I am frustrated that Kerry is not calling the President out on the misinformation put out by the government and the President’s campaign about the inability of the government to protect our drug supply by allowing production to be outsourced. The misinformation about the civil justice system and claims that some sort of tort reform will somehow magically cure the nation’s health care ills also continues unabated and unchallenged.

I want someone to call the President and the RNC on the destruction of Democratic voter registrations by GOP-backed Voters Outreach of America. Former VOA employees have come forward and said they personally witnessed other company employees shredding Democratic registrations by the hundreds or even thousands in Nevada. The same allegations have now surfaced in Oregon. Why are we not screaming this from the rooftops?

October 13, 2004, 5:15 P.M.

The following is a reprint of an excellent piece that appeared last week in the Wall Street Journal, of all places:

Life Values: As Malpractice Caps Spread, Lawyers Turn Away Some Cases

Limits on Awards for Suffering Create New Impediments; Insurers Defend Changes

A Tale of Two Mothers

By RACHEL ZIMMERMAN and JOSEPH T. HALLINAN
Staff Reporters of THE WALL STREET JOURNAL

October 8, 2004; Page A1

Two years ago Shelly Thompson-Mooney, a 35-year-old mother in Texas, died of a cerebral aneurysm. Attorney Roy Key thought her case was a good candidate for a medical-malpractice suit.

Her common-law husband, Robert Mooney, told the attorney she was brought to the emergency room with substantially the same symptoms she had suffered once before when a blood vessel ruptured in her head. Mr. Mooney said she went three hours without proper treatment. Just over two days later, she died, leaving Mr. Mooney to raise their 4-year-old daughter.

But Mr. Key and other attorneys passed on the case. Ms. Thompson-Mooney was a homemaker, so she had no income the suit could seek to recoup. Her medical bills were covered by insurance, eliminating another potential claim in a lawsuit. That meant a suit probably would need to seek payment for "pain and suffering" -- traditionally a rich vein. But Texas recently had capped awards for such noneconomic damages in the vast majority of medical-malpractice cases at $250,000.

"From an emotional standpoint, I wanted to take the case," Mr. Key says. But he says the cap prevented him from doing so. A case like this one might cost his firm $100,000 to prepare for trial. That is more than the firm had any hope of collecting, since its fee is one-third of any award. "If there was no cap in this state," says Mr. Key, "we would have taken it -- I can say that unequivocally."

Caytie Martin, a spokeswoman for the hospital where Ms. Thompson-Mooney was treated, Northwest Texas Healthcare System in Amarillo, said she could not discuss the specifics of the case because of confidentiality laws. But she said: "There was no medical negligence, no lawsuits were filed. We had no record of patient or family complaints."

Amid the fierce debate over limits on medical-malpractice suits, many states have enacted limits of their own that are having a sweeping impact. One of the most common types -- caps on damages for pain and suffering, or so-called noneconomic caps -- is turning out to have the unpublicized effect of creating two tiers of malpractice victims.

Cases involving high earners or big medical bills move ahead. Lawyers can still seek economic damages for the wages these patients lost or to pay for continuing medical bills. But lawyers are turning away cases involving victims that don't represent big economic losses -- most notably retired people, children and housewives such as Ms. Thompson-Mooney.

Vice President Dick Cheney mentioned the Bush administration's wish to enact nationwide caps on noneconomic damages in his debate this week with John Edwards, the Democratic vice-presidential nominee and a former plaintiffs' lawyer himself. But groups such as AARP, the organization for older Americans, and the National Organization for Women are mounting campaigns against such moves. "When you put a cap on noneconomic damages," says NOW President Kim Gandy, "quite literally [women's] lives are valued lower."

Caps on jury awards for noneconomic damages in malpractice cases became popular in the 1970s, when doctors in many states got hit with soaring premiums for their malpractice insurance. The problem was so dire that some doctors went on strike, and lawmakers feared basic medical services would be unavailable unless steps were taken to curb surging malpractice premiums.

California's 1975 Medical Injury Compensation Reform Act is considered a national model. It limits both the fees that a plaintiff's attorney may charge and the amount of money that may be awarded for noneconomic damages. Those damages are capped at $250,000, an amount that hasn't been increased since 1975. In inflation-adjusted dollars, it is now valued at about $71,000. At least 25 other states have adopted similar restrictions.

The caps can have an impact on one of the malpractice insurance industry's biggest potential sources of trouble -- suits over obstetric care. Such cases often carry great emotional appeal -- a volatile factor in jury deliberations that can lead to the high awards malpractice insurers dread.

"Paying people for their pain is an idea whose time has come and gone," says Fred Hiestand, chief executive officer of Californians Allied for Patient Protection, a nonprofit group of medical associations, insurers and others based in Sacramento that supports that state's tort-reform efforts.

A $250,000 award is more than many people receive, notes Phil R. Hinderberger, senior vice president and general counsel for Norcal Mutual Insurance Co., a physician-owned company that is one of the biggest insurers of doctors in California. "A soldier injured in combat is not entitled to any pain and suffering. A worker injured in the workplace is not entitled to any pain and suffering," he wrote in an e-mail interview.

Bohn Allen, president of the Texas Medical Association, says he was forced to close his surgical practice in Arlington last year in part because rising premiums for malpractice insurance made it unprofitable for him to continue operating. That happened just as Texas implemented its cap on noneconomic damages against any one defendant at $250,000.

Since the cap was passed, Dr. Allen says, at least 10 malpractice insurance companies have started doing business in the state. That in turn makes Texas more attractive to badly needed physicians.

The effect of such caps became clear to Donald Costello, a lawyer in Santa Cruz, Calif., after he handled two virtually identical breast-cancer cases. Both involved married mothers in their 40s who had two children and died from the disease. One plaintiff was a housewife and her case was settled for $300,000. The other was a Silicon Valley executive whose family won a $2 million settlement.

Bruce Fagel, a Beverly Hills doctor and lawyer who handles only medical-malpractice cases, argues that the cap on noneconomic damages is a violation of the country's equal protection laws. He cites two recent malpractice cases of his own, each involving the death of a young wife and mother. In each case, noneconomic damage awards of $3 million were reduced to $250,000.

One case in Pasadena decided last year involved a mother of two who held a master's degree and worked as a school administrator. She died of an infection following a gastric bypass, and her family won $1.6 million in economic damages.

In the other case, decided this year in San Bernardino County, an unmarried woman on welfare with two minor children died of an infection during a stillbirth after the doctor ignored the patient's symptoms until it was too late. In that case, $200,000 in economic damages was awarded.

During that trial, Mr. Fagel argued: "We are saying to doctors and hospitals it's OK to kill somebody who comes from a poor family because ultimately they aren't going to have the same effect on our medical-malpractice insurance as somebody who comes from a rich family."

The presiding judge, Tara Reilly of State Superior Court in San Bernardino County, agreed that the cap on noneconomic damages can be inequitable based on a person's socioeconomic standing. "You're absolutely right," she said, according to a trial transcript.

The American Medical Association, a supporter of tort reform, acknowledges that some plaintiffs with little in the way of economic damages have a hard time finding lawyers. "If their claim is not of high monetary value, then it's hard for them to find an attorney," says Dr. Donald J. Palmisano, immediate past president of the AMA.

Gary Paul, a Los Angeles trial lawyer, says he doesn't take smaller cases that he would have handled in the late '70s and early '80s. Instead, he says, "we tend to take cases with more catastrophic injuries," in which the economic damages are clear.

Paula Sweeney, a Dallas trial lawyer who has been handling medical-malpractice cases for 23 years, says the caps have already slashed her business. Since the beginning of the year, she's filed only one case. In a normal year, she would have filed 12 to 15 by now. "The economic feasibility has changed," she says. She says she believes the new restrictions will eliminate about 85% of medical-malpractice cases in the state.

Trying a case typically involves hiring half a dozen expert witnesses and costs about $100,000, she says. Under the state's new pain-and-suffering cap, that essentially eliminates any case where the victim had no income or no continuing medical expenses. Lawyers use economists to try to quantify "mommying activities," such as chauffering and cooking, to argue for economic damages, but that can be difficult and often doesn't amount to much.

A study released this year by the Rand Institute for Civil Justice, a nonprofit research organization in Santa Monica, Calif., found that California's medical-malpractice law had reduced malpractice awards involving babies under one year of age 71% of the time. The median reduction was $1.5 million.

For plaintiffs' attorneys, the primary question in cases involving babies and others without income is whether medical needs are continuing. That boosts a potential award because it wouldn't be limited by the cap on noneconomic damages. The question proved crucial for Brenda Stoltz, of Leesburg, Va. Ms. Stoltz says a botched delivery last year left her daughter, Zoe Elizabeth, severely brain damaged.

During delivery, there were signs that the baby was in distress, including an extremely slow heart rate over an extended period of time, according to Ms. Stoltz. Yet no emergency C-section was done. This lack of action and other errors, says Ms. Stoltz, left Zoe deprived of oxygen during a critical period. She was born with severe brain and other organ damage.

Last September, Ms. Stoltz and her husband decided to sue the doctor involved and they retained a Maryland law firm that specializes in medical malpractice. Zoe was facing a lifetime of expensive medical care.

But on Oct. 21, Zoe died. Ms. Stoltz says she told the lawyers of her baby's death the next day. Shortly after that, the firm dropped the case. A lawyer for the firm wouldn't comment.

Since then, the family found a new lawyer and filed a lawsuit in Loudoun County Circuit Court in June. But there is a catch: Because of a Virginia law, the Stoltzes had to agree to cover all court costs themselves, including expert testimony, securing records and taking depositions.

LIMITED DAMAGES

A study of a 1975 California law capping malpractice awards for noneconomic damages, such as pain and suffering, at $250,000 found that:

• The law reduced the overall liability of defendants by 30%

• The median reduction in awards for noneconomic damages was $366,000

• Injured babies under one year old had reductions imposed in 71% of their cases

• The median reduction for this group was $1.5 million

• Plaintiffs 65 years of age and older had their awards reduced 67% of the time

• Female plaintffs had larger cuts to their total verdicts than did men: 34% vs. 25%

Source: Rand Institute for Civil Justice

October 12, 2004, 6:00 P.M.

Homeland Drug Security: I listened to an interesting discussion on NPR Tuesday morning regarding the shortage of flu vaccine resulting from the contamination of the vaccine being produced in England for the U.S. market. Apparently, the vaccine was being produced in the U.K. because there were not a sufficient number of licensed U.S. drug manufacturers interested in producing the vaccine here. Diane Rehm’s guest, Dr. Anthony Fauci of the National Institute of Allergy and Infectious Diseases, claims that U.S. drug manufacturers are not interested in producing vaccines without "tax incentives, regulatory relief and liability relief."

My impression of this discussion leaves me with several concerns. First, the pharmaceutical companies that do business in this country produce huge profits as a direct result of the business environment created by our government. The current administration has openly supported the pharmaceutical industry through legislation, regulation and economic incentives. These supports include blocking the import of cheaper drugs from Canada, permitting expanded direct market advertising of drugs and by proposing protective legislation that would limit the rights of parties injured by drugs, such as Vioxx, to receive adequate compensation where drug companies are at fault. Despite this favorable treatment, the drug companies still refuse to enter the vaccine production market without further "protection."

My second concern involves security, because vaccines are not produced in this country and that production is, in fact, outsourced. In this situation involving Chiron, the vaccine maker whose U.K. plant was shut down due to contamination of millions of lots of the flu vaccine, the U.S. agencies responsible for identifying and developing strategies for treating diseases that threaten us lost control of the production process. Of course, the contamination could have happened here. The result in this case, however, is that millions of doses of this year’s recommended vaccine are useless because they were being produced at one source not directly regulated or controlled under U.S. law. The contamination of those drugs leaves the vaccine in short supply in this country and leaves many patients including those in categories defined as "at risk" without flu shots. The answer of U.S. drug companies is, of course, if you loosen regulations, give us liability protection and let us make more money at it, we will jump into the vaccine business. Otherwise, you are on your own.

My biggest concern is that this problem reflects a larger attitude in the current U.S. government about the role of government in the regulation and management of industries that directly impact the health and safety of U.S. citizens. Give the amount of profit that U.S. drug manufacturers make as a direct result of the environment created for them by the U.S. government, there should be a requirement that each company produce a certain amount of the vaccines and antidotes required to insure that the U.S. population is safe from natural and man-made biological threats. Despite the obvious potential harm to U.S. citizens from a lack of required vaccines and from bioterrorism, no such requirement exists. Right now, drug companies enjoy huge benefits and incentives with little or no payback to U.S. citizens. This is not to say that the development of new drugs and treatments do not convey huge benefits, they do. They also come with a huge price tag not a small portion of which represents profit from the protected sale of those products.

Just as natural, non-corporate citizens of this country have been compelled, though the Patriot Act and other legislation, to suffer curtailment of their liberties in the name of national security, so too should corporate citizens be asked to actively participate in the protection of our population. If spread among enough producers, the cost would be marginal, especially since no one expects them to produce the vaccine for free, just for a slightly lower profit margin than what they have become accustomed to. Likewise, no one can say that the current administration has adequately protected us from natural or man-made biological threats by requiring drug companies to participate in the creation of vaccines and antidotes. What it has done is to shield the corporations from any obligation to participate in the protection of American citizens simply because there is no profit in it. That does not make me feel very safe.


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