Dear Jen:

You recently provided a letter for public comment (see below) by Richardson supporters. I hope you won't mind if I take the opportunity you offered and comment on your post.

I worked as a volunteer for Richardson in Iowa in both Council Bluffs and Sioux City.

I am a patent attorney. I have never ever represented a claimant of any kind in court. So, I hope your contempt for lawyers doesn't apply to me as well.

My father was an engineer. My father's father was a rural family practice doctor (M.D.) who was loved and honored by the community. My niece is about to graduate from a major National Medical School (she went to a first rate private secondary school and whizzed through private undergraduate college with honors in only 3 years.)

On the negative side, my son's best friend (like a son to us) was finally admitted to medical school in Vermont, but only after being turned down flat by every medical school in Texas, despite his excellent grades in a biology degree at Texas A&M. My undergrad roommates at Rice University in Houston majored in Biochemistry with good grades but were turned down by all the Texas medical schools as well (but, neither of them were from a socially privileged background, so maybe that explains it).

Maybe the medical college admission thing is a negative for my objectivity. But, don't forget my grandfather was a medical doctor and my niece is about to start the rigorous interning process as a new M.D.

I offer my background in order to try to discuss your issue without exposing myself to nasty ad hominum invective in a reply from you or the others.

Trying to take a fair view of your complaint against lawyers, three things come to mind.

First, there are three branches of government provided for in the constitution. One of the three branches of government are the courts. There is nothing in the constitution about engineering, medicine, computer programming or the other many other specialized skills that a wide variety of professionals offer to the public. Certainly there is nothing in the constitution exempting from judicial review disputes arising from any of the professions.

Second, our constitution is well founded, because all ancient civilizations provided for some form of court system to handle all kinds of disputes. In the Judeo-Christian Bible, Moses is advised by his father-in-law (a gentile) to set up a hierarchical court system including several levels of appeal. (Exodus 18:17-27) Also, the New Testament includes comment to the effect that anyone against whom a claim is brought should settle the claim before getting to the court lest every last penny be extracted from him. (Luke 12:58-59) Yes, courts have been taken seriously throughout history.

Third, a court system requires a system of rules for making decisions that are not arbitrary or based upon unreliable evidence or procedures. This, in turn, gives rise to people who specialize in understanding the rules of court and who advise others on those rules. Not everyone can be an expert in court procedures - any more than everyone can be an expert in real estate sales, stock markets, or engineering. Yet, in our country, the discipline is available to all who seek it.

So far, there should be nothing that seems strange, conspiratorial, or outrageous about the existence, jurisdiction, and practice of courts. True, our courts are not religious courts, with lawyers skilled in the laws of Moses (or, in the case of Moslems, skilled in the Sharia law). Instead, we have secular courts with laws that are not dictated directly from God and which are not reserved for interpretation only by a religious elite (theocratic lawyers). Our modern courts, under our constitution are supposed to be open to everyone at all levels.

Now, your argument seems to be that medical disputes should be outside the jurisdiction of the constitutional courts of the states and nation. This argument seems strange to me and I wonder if you can cite any historical document from any current or former civilization that exempted medical disputes from the ultimate jurisdiction of the courts.

Engineers who make a mistake in building a bridge would not think themselves exempt. Programmer consultants whose software scrambles important business records would not think themselves exempt. Stock brokers and financial advisers whose advice causes huge losses would not think themselves exempt. In fact, I can't think of any profession that makes such an expansive claim to exemption as you appear to offer in your letter.

True, professionals in these other groups might well seek to have potential clients enter into some sort of arbitration agreement prior to furnishing services. But, even the arbitration agreement is subject to court supervision to assure that it is fair, agreement was fully informed based upon full disclosure, and that the dispute resolution proceedings were conducted properly under the arbitration contract.

Again, the Courts are the third branch of government. Just as a citizen soldier cannot escape the President and the taxpayer cannot escape the laws of Congress, a disputant cannot escape the review of the courts just because he is a professional. Where is the horror in that?

Most people will not even hire a plumber who is not bonded. Certainly, engineers and financial advisers are certified and bonded. I don't see why doctors shouldn't be certified and financially responsible as well. It's what grownups do.

Insurance, whether auto or medical, is a form of risk spreading.

It shocks the conscience to think that random tragedies fall upon innocent people without the provision of some means of organized, adequate relief. Where the risk is great, the availability of some tool for of risk spreading is normal. (Even municipal bonds are insured.) The cost of insurance is always passed on to the consumer of the services - hence the idea of risk spreading. All consumers pay a bit more so that the unfortunate one of them who suffers a random catastrophe can be shielded from total ruin.

If we, like Germany, had doctors who rode bicycles to house calls, perhaps the public wouldn't rely on the appearance that a doctor is financially responsible for the exercise of his/her skills.

If the average person didn't know of at least one seemingly wonderful candidate for medical school who was rejected for mysterious and unfathomable reasons, perhaps there would be more confidence that access to medical expertise was not being arbitrarily rationed and limited in order to keep fees up. (See argument of Ron Paul on this subject.)

If Chemical Engineers (like my father) didn't know that there is an easier version of Organic Chemistry reserved for pre-med students at most colleges (rather than the hard version reserved for science majors) there might be more reverence for doctors as scientists. (At my Alma mater, Rice University, it was Chem 200 for pre-med and Chem 210 for science majors.)

If we didn't see constant advertising on television directed at encouraging patients to pressure their doctors to prescribe certain pharmaceuticals for previously unknown diseases (such as "restless leg syndrome") there would not be a perception that doctors rely more on the latest visit from the drug salesmen rather than on diligently doing their own research in the leading medical journals.

If doctors spent more than five minutes hurrying through a patient visit, people might believe that doctors have given a thorough examination and diagnosis before firing off a prescription.

If the Bible didn't refer to the woman who spent all her living on doctors without a cure, there might not be a suspicion that some doctors are quacks. (Luke 8:43-44 King James)

If insurance companies weren't pushing so hard to squeeze the doctors, we wouldn't be looking at microsurgery in U.S. hospitals being done remotely over a computer link to doctors in India (there's outsourcing for you).

I guess I am making the narrow point that courts and court procedures are a normal and necessary part of modern society from which no profession is exempt. But, I am also questioning your assertion that medical practitioners and insurance companies should be above the law. Someday, when a doctor in Bombay, India, is on the joy stick during your microsurgery in Houston, you might want to know that judicial recourse is available if it gets screwed up! The same goes for diagnosis contracted out to India.

I also question your assertion that the complex procedures mandated by insurance companies are caused by lawyers. This seems a reckless claim that lacks common sense. There is reason to believe that insurance companies profit from delays in claim processing and from excluding "new" procedures from recovery under their policies. To assert that this process is caused by lawyers should require at least a hypothetical nexus of some kind.

How does an insurance company limit litigation risk by delaying payments and by refusing to cover various procedures? Isn't it more likely that such practices are entirely related to their attempts to manage their profitability on behalf of their shareholders and to enlarge managerial bonuses? Wouldn't delays and coverage rejections logically cause more court claims against the insurer, rather than less? In fact, isn't Tort Reform promoted by the insurance lobby in order to prevent court review of their own compensation decisions?

As for your claim that lawsuits are the main reason for higher insurance premiums, I have two comments:

First, here in Texas, comprehensive tort reform was passed and re-passed by legislatures entirely dominated by Republicans. (Not only are both houses of the legislature controlled by Republicans, but there is not even a statewide Democratic office holder -- NOT ONE DEMOCRAT IN THE WHOLE STATEWIDE EXECUTIVE BRANCH). The courts have been dominated by republican appointees since George Bush as governor. These Republicans are highly satisfactory to the insurance lobby. Yet, malpractice insurance rates continue to climb in Texas. The rate of increase in malpractice insurance premiums never even slowed down since Texas Tort Reform.

Second, I was at a legal seminar recently where a Federal Judge (Republican appointee) complained that there were no longer any civil (non-criminal) trials in the Houston Federal District Courts. He was concerned about the fact that many lawyers are being promoted to partner level in Houston law firms without ever having been tested in court, promoted without ever winning a verdict for a Plaintiff or Defendant in court. So, it seems to me that "too many lawsuits" is a myth perpetuated by the insurance industry.

You may feel that the Texas experience I cite are mere anecdotal artifacts (factoids). But, are your proofs any more rigorous and statistically valid?

It should hardly surprise anyone that the insurance business is "business driven", nor should it automatically fall on lawyers to explain why corporations seek to maximize profit at the expense of the patient.

Duh ! How else can they maximize profit? Did insurance companies refuse to cover flood damage in Katrina because of the threat of litigation, or in-spite of it ???

I hear over and over that people thought they had health insurance only to discover that important and necessary procedures are excluded in the fine print. Is this the fault of trial lawyers??? I hardly think so.

Finally, the article you refer to speaks of "junk science." This term is a marketing concept that has been in use by the insurance lobby for a long time. It is routine for high priced defense attorneys hired by large corporations to ridicule the plaintiff's puny expert.

It is difficult for a claimant to obtain an expert. All experts who testify in court, no matter which side, charge huge sums of money. Testifying experts charge even more than the attorneys, usually twice as much as the attorney hourly fee. They charge $400 an hour for preparation, thousands for getting on an airplane, thousands to sit for depositions, and thousands to be available in court -- whether they testify for ten minutes or ten hours. These guys aren't lawyers. They are scientists.

Experts do indeed know how to make a buck testifying. The experts approved by the insurance companies charge even more than those willing to testify for the plaintiff. But, does that mean that one of the testifying experts is a whore while the other one is a Nobel laureate? No. No. Insurance companies like to skate past that analysis.

Let's talk about testifying experts. Why does the judge let them testify in the first place? They weren't around when the dispute originally arose. They come in from some university, after the fact, to try to sort out what happened. Why use them? Why not have the judge, who just finished a brutal murder trial yesterday, just jump into medical (or engineering, or finance, or software) terminology and sink-or-swim on his own?

The answer seems obvious. The expert is able to apply science to evidence in a way that a judge cannot. Therefore, the judge finds experts helpful. The judge investigates the background of an expert offered by a party to see if his/her credentials are proper, then he listens to the expert interpret the facts according to an orderly scientific analysis.

Now, maybe there is only one way to interpret any set of facts. Maybe you have never seen a set of facts that could be interpreted more than one way.

For me, even an accident at an intersection can be interpreted different ways. For sure, someone made a mistake ... but who? Tire tracks are analyzed by experts. Time and momentum calculations are made based on various assumptions to try to determine if anyone was speeding and whether attempts were made to avoid the collision, etc. This expertise is usually not available in the police department, or lack of resources prevented it's timely exercise by the police.

Even eye witnesses often differ widely in what happened due to their various capacities for observation. So, enter the expert to help the court interpret the facts. Is this junk science?

As one who lives on the boundary between science and law (a patent attorney remember), I believe that science offers a valid and reliable methodology for interpreting evidence. True, one expert may make different assumptions than the other, but they are both scientists. The different opinions they reach are a result of different starting assumptions. Cross examination consists of getting the expert to admit that different starting assumptions would make his opinion invalid (a point with which all scientific experts immediately agree). The real controversy is over which set of starting assumptions is correct. That is what the trial is all about.

It is the role of the trial lawyer to prove to the judge and jury that the starting assumptions for his expert were correct. But, once the assumptions are proven as accurate, the expert whose opinion was based on those assumptions will generally be accepted as the most helpful to a determination of the consequences of that proven set of assumptions. Where is the "junk science" in that?

I can assure you that the insurance companies with their high priced corporate lawyers have more than adequate opportunity to show the judge and jury that the assumptions used by the plaintiff are wrong, or that the conclusions reached by the expert based on those assumptions are wrong.

What the insurance companies want to do is to prevent the claimant from having any way to bring to the jury an explanation of the consequences of a particular set of assumptions. Deprived of a qualified science expert, the resulting lack of ability to present a competent analysis of data will (and has) effectively closed the doors of the court house to potential claimants.

The problem is not "junk science." The problem is procedural due process and a fair trial.

For the point of view of the insurance company, everyone should have an expert except the plaintiff, who is to be denied one at all costs -- even if it means effectively denying access to the third branch of government to an injured party. No matter what your personal stake in the matter, surely you can see that this result is wrong.

I hope you learn to manage your bitterness towards the American system of justice. The insurance lobby may succeed in closing the doors to the court house for a time, but the result will be rising resentment and indignation from the public that will ultimately blow those doors open again. So, bitterness can flow both ways.

Where there is a wrong, there must be a remedy. The public conscience will not long allow horrific tragedy to fall randomly upon the innocent without assurance that an adequate organized system of risk spreading and remediation is in place.

As the third branch of government, the courts will ultimately determine whether such systems are fair and adequate. No amount of obfuscation from the insurance lobby will change that.

I hope you have found my comments helpful. If not, I suggest you try reading my post again when you are in a better frame of mind. I have really tried to be helpful. I'm sorry if I have failed to help you understand the other side of this issue.

Forgive me if I have offended you in anyway. This is a public policy issue and personalities should not be involved in a free and open debate.

-- Bill Martin


Louis Benavides wrote:
Let us stay positive with our candidate.
When we get to the national election then we should look at things on a one on one basis.

Louis


----- Original Message ----
From: James Whittington
To: Texas For Richardson
Sent: Wednesday, January 9, 2008 2:22:22 PM
Subject: [TexasForRichardson] Talking points about John Edwards

This young lady is a college friend who lives in New Hampshire. She and her husband operate a family practice in a small town there.

This email and the attached link (an older link from the '04 election) emphasize why putting the wrong Democrat in Washington could put us in an even worse situation then we are in now.

Texans - We need to get our guy in the top three by Super Tuesday.



James Whittington, PG
Thunder Resources, LLC
903-277-9712



From: Jenpinard@aol.com
Date: Wed, 9 Jan 2008 10:45:06 -0500
Subject: Health Care Reform
To: Jenpinard@aol.com


Click here: Did 'Junk Science' Make John Edwards Rich? -- 01/20/2004

It's not like me to be political or to even speak of politics, so forgive me if I offend you.

But for once, Tim & I do feel strongly AGAINST a candidate, and I thought I'd pass on this article as food for thought.

Perhaps, you will say it just hits too close to home for us. But remember that we left WV, partly because of the growing malpractice crisis...in the same year that physicians at Wheeling went on strike, CAMC lost trauma status because specialists were leaving the state, our own small hospital laid off 11 employees because of growing expenses to hospitals, and the WVU Ob/Gyn department suffered a mass exodus of faculty. We know that Tim could never afford to run a private practice because of the outrageous overhead of malpractice insurance costs. Malpractice premiums grow from the increasing number of malpractice cases litigated. And we have seen malpractice premiums alone truly affect health care in a state that needed good health care so badly....it had come so far...and then took a huge backward slide.

We spend valuable time and staff resources every day trying to get prescriptions, necessary test, medically-indicated procedures etc "pre authorized" for patients because it's become a business-driven system that doesn't put my medical care or medical decision making first. We constantly talk about what's the right answer "medically" vs. what's the right answer "legally".....to the point that the term "medical-legal" exists and is used freely in conversation. "Medical-legally, you SHOULD do this...." Most doctors are good and decent doctors, but when did they go to law school? They should be using their MEDICAL knowledge. Conversely, most lawyers are good and decent lawyers....but since when did they (and big insurance companies) go to medical school and become medical experts? You can talk about separation of church and state all you want, but frankly I'd like to see the word medico-legal be separated again!

I think a lot of people agree the health care system is "broken" in this country. Those of us who work in it become increasingly disenchanted. I do NOT know what the right answer is. I do not want to undertake trying to figure it out. But I'm pretty darn sure I don't want THIS guy in charge of that! I wince every time I see his commercial challenging the senate to provide insurance for all Americans or he will take away their own personal health insurance. Do you think he'll challenge himself to make essential changes in tort reform, insurance company policy, or caps on malpractice settlements?? Do you think he will give up his own benefits...a fortune built on settling high profile Ob malpractice cases...if he doesn't??????

Like I said, food for thought....pass it on at will if you wish....






Start the year off right. Easy ways to stay in shape in the new year.

Get the power of Windows + Web with the new Windows Live. Get it now!


-------------------------------------------------------------------------
This email was sent to 63 members of Texas For Richardson
This email was sent from James Whittington whittin7@hotmail.com
Listserv email address: TexasForRichardson@groups.richardsonforpresident.com
Your reply will be sent to: TexasForRichardson@groups.richardsonforpresident.com
Unsubscribe or change your email settings: http://action.richardsonforpresident.com/page/group/TexasForRichardson/listserv-remove
-------------------------------------------------------------------------




-------------------------------------------------------------------------
This email was sent to 63 members of Texas For Richardson
This email was sent from Louis Benavides louis_benavides06@sbcglobal.net
Listserv email address: TexasForRichardson@groups.richardsonforpresident.com
Your reply will be sent to: TexasForRichardson@groups.richardsonforpresident.com
Unsubscribe or change your email settings: http://action.richardsonforpresident.com/page/group/TexasForRichardson/listserv-remove