It is not uncommon for judges in the Baltimore Circuit Court to disqualify potential jurors on the premise of knowledge of a 1950s local television game-show host.

Marvin Ellin gained a great deal of fame while on radio and television in the 1950s, but the medical malpractice attorney did not expect the recognition would carry over 50 years later.

It has happened so many times through the years, where a potential juror has said he used to listen to my radio show or his neighbor was a contestant on the ‘Block Party,’ Ellin said.

Typically, the juror is excused from the case, he said.

It is amazing that the show has indirectly affected cases I have worked on in recent years, Ellin said.

Ellin’s radio career began in 1946 when he was told he had the voice for it, he said. Block Party, a quiz show for housewives, was developed later.

This was back in the days when you had to have somewhat of a decent voice to get into radio, not like these characters today, Ellin, 81, said with a grin.

Working as an on-air personality for WCAO in Baltimore, Ellin hosted Varieties, a mix of music and interviews. All of the celebrities who came into town were on my show.

Two of his most memorable interviews were with championship swimmer turned actress, Esther Williams, and comedian and early television super star, Jackie Gleason, he said.

I was so young that the other announcers and disc jockeys would joke about my age, he said.

After a few years as a radio announcer, Ellin developed the concept for Block Party, which he sold to WMAR Channel 2.

The qualification for guests on the show was very restricted - housewives only, he said.

When a housewife won, she could designate any block in the Baltimore City area, and every home on that block would get some sort of prize, Ellin said. I really got recognized a lot during ‘Block Party.’ Housewives would come up to me and ask for my autograph.

In 1950, Ellin had a guest on Block Party, who instead of choosing a block in Baltimore, chose a block in Leghorn, Italy. Though, at the time, Leghorn had a Communist mayor and a large population of Communist residents, Ellin and his team were allowed to distribute prizes in the Italian city.

We called it the Democracy Block Party, Ellin said.

After nearly five years in the broadcasting business, a friend suggested that Ellin would make a good trial lawyer. The thought stuck with him and Ellin began taking night classes at the University of Baltimore.

It was funny because I was heading in the right direction with advertising and broadcasting and I certainly was not looking to change careers, he said.

Through law school, Ellin continued broadcasting the Block Party. When he bid adieu, he had been the host for seven years.

If I was going to be proactive about practicing law, everything else had to be secondary, so I stepped out of broadcasting rather bluntly, he said.

When he first began practicing law, his broadcasting background did not seem to be a positive, he said. It was literally used against me. I was not taken seriously until I won a few cases and then it all stopped.

Overall, his broadcasting experience significantly helped his career, he said.

If you think about it, entertaining is really part of what lawyers do, he said. How well you do, how well you express yourself, and how well you appear are all part of how well you do in the courtroom, he said.

In August 2004 the Providence Journal carried an article about a malpractice suit in which the expert consultant for the litigant withdrew at the last moment from the case. He cited his recent experience at a national meeting in which expert consultants for patients were treated as pariahs and traitors in the malpractice wars. The newspaper carried contradictory accounts concerning this withdrawal, but the notion that doctors are reluctant to testify in malpractice cases is real. Recently the national AMA meeting attracted publicity when a member suggested that malpractice lawyers should be denied medical care. One doctor evidently boasted that he refused a patient because her husband was a malpractice lawyer!

These are troubling pieces of news. While I believe that our malpractice system is terrible, inefficient, and unfair, it is probably better than no malpractice system at all. Denying expert witnesses to suing parties is analogous to denying expert witnesses to accused criminals. A case isn’t over until a verdict is reached. Fach side is entitled to a full display of facts and theories; denying an experts opinion simply stacks the case. The hoped-for goals are truth and fairness. Innocence is the presumed baseline.

The vast majority of malpractice goes undetected and uncontested. We learned only a few years ago from a National Institute of Medicine report that hospital errors, sometimes by doctors, resulted in hundreds of thousands of injuries yearly. Only last month we learned that the previous report actually underestimated the real number of injured parties. In short, too few doctors and hospitals are sued. The problem therefore is the inequality in the system. A few cases get gigantic payoffs while the bulk of cases aren’t recognized. It is even more unfair and uneven than our national health care system. Some patients hit the jackpot while most suffer in silence.

Doctors are not police or mafia. Police have their way of reducing oversight, “the blue wall of silence,” similar to the Mafiosa’s “omerta”. One is considered a “rat” if one breaks the code of silence to report a colleague who breaks the law. This is counter-productive for it not only undermines the public’s confidence and allegiance but also works to drive out the more honest police officers. How can we, as doctors, not help a patient who may have suffered at the hands of one of our colleagues? The expert witness describes the medical situation and parses out blame. The expert must have integrity and not cater to the desires of the lawyers paying the fees. It is interesting that just as some doctors won’t testify against others, some are only too ready to testify. Some make a large amount of money as expert witnesses, lending some credence to the notion that the expert is available for “hire,” with flexible opinions that depend on what is needed to yield a payday. Below I’ve summarized guidelines for expert witnesses that the American Academy of Neurology recently published to help reign in these hired guns. With the exception of the “professional” expert witness, it is hard, I believe, to testify “against” a colleague. The real goal is to testify for the patient. The other side provides experts who testify on behalf of the defense.

About 20 years ago a cardiologist in Rhode Island was convicted of implanting cardiac pacemakers in patients who didn’t need them. He had implanted more of one particular pacemaker than any entire hospital in New England. The manufacturer had given him kickbacks, incuding interest-free loans to buy a house. He falsified EKGs and charts to justify the pacemakers. He was ultimately brought to justice by a doctor from a medical insurer reviewing his huge number of claims. He was not accused by his colleagues or by administrators at his hospital. Protecting a felonious or incompetent colleague besmirches all of our reputations. An error of omission is just as serious as an error of commission.

Refusing to testify honestly in a malpractice suit is a form of cowardice that speaks ill of our profession. We make mistakes, and we should take responsibility for them. It is a rhetorical question to ask whether we should accept the current malpractice “system” or reform it, but until we do change it, we should own up to the responsibility of policing our own, and trying to make our justice system as fair as possible, even given its irrational structure.

One of my mentors told me that he reviews legal cases only if the lawyer withholds any indication of which side he is on. He feels more dispassionate that way. He reviewed a case in which someone was admitted to the hospital and the diagnosis of tetanus wasn’t made until it was too late. The chart review revealed that the admitting nurse’s note read, “Admission diagnosis: lockjaw.” My mentor called the lawyer. “If you represent the hospital or the physician I suggest you settle out of court.”

Power may be a natural aphrodisiac, but this week the passions seemed to turn narcissistic, both among those seeking power and those who have fallen from it. Democratic potential presidential candidate Al Sharpton, the opportunistic gadfly who was behind the fallacious but salacious rape claims made by Tawana Brawley in 1987, now was charging HBO and reporter Bernard Goldberg with slandering him by running a tape of an FBI sting–one that made it look very much like Sharpton was negotiating big-time drug deals. Sharpton denied all, as he is wont to do, running from his history in pursuit of power, even as Bill Clinton was struggling to deal with his own loss of power by rewriting history.

In Little Rock, Ark., to tour the site of his future presidential library, Clinton blamed Republicans for blocking his efforts to “stop the Enron accounting issues,” insisting this is “a matter of record.” And never mind Clinton’s efforts to secure foreign deals for Enron, also a matter of record. Then the former president faulted the administration of George W. Bush for spending a mere $1 billion on global efforts to fight AIDS. “That sounds like a lot of money, but it’s less than two months of the Afghan war,” Clinton told an audience at a Jesse Jackson Rainbow/PUSH conference. It was clear Clinton’s political priorities have not changed.

On Capitol Hill the priorities have been changing rapidly. With the stock market trying to find its legs and the mass media driving the corporate-accountability stories like a Formula One racer, Congress responded the only way it knows how: by passing yet another bill.

After a speedy conference between the House and the Senate to hammer out their differences, the House voted 423-3 on July 25 to pass the final version of a corporate-reform measure. The bill adopted stricter penalties for violators, as proposed in the House, and tighter controls on an oversight board, as proposed by the Senate. Voting against the measure were Republican Reps. Mac Collins of Georgia, Ron Paul of Texas and Jeff Flake of Arizona. The Senate voted 99-0 to pass the bill later the same day.

The votes were held as the Labor Department released economic figures that continue to be more positive than anticipated. New claims for state unemployment insurance declined by 21,000 for the week ending July 20 (from 383,000 the previous week to 362,000) and workers’ wages and benefits increased by 1 percent in the second quarter, the fastest pace in six months. A drop in orders for big-ticket consumer items reported by the Commerce Department, however, tempered some of the economic enthusiasm.

Not in the least temperate was the rhetoric accompanying the Senate Judiciary Committee confirmation hearing for Judge Priscilla Owen, who was nominated back on May 9, 2001. Despite the judicial emergency to fill the seat on the 5th U.S. Circuit Court to which she was nominated, partisan Democrats and liberal activists delayed a hearing for Owen until July 23, leaving her in limbo for more than 14 months. Sen. Dianne Feinstein (D-Calif.) raised questions about Owen’s “ability to decide cases on the law, not on personal beliefs … on several core issues, including abortion and consumer rights.” Despite clarifications that Owen was following Supreme Court precedent in abortion cases, Democrats on the panel appeared unmoved.

It remained unclear whether one Democratic member could be persuaded by those who appeared or submitted testimony on Owen’s behalf, including a number of leading Democrats from her native Texas and lawyers against whom she had ruled. According to the Office of Legal Policy at the Justice Department, there now are 54 nominees, including Owen, swinging slowly in the wind–and 91 vacancies in the 862-member federal judiciary.

With a July 24 House vote of 274-151 to pass another ban on partial-birth abortion, and several abortion-related cases on the Supreme Court’s docket in October, liberal and pro-abortion groups are working hard to block conservative judges by holding on to Democratic control in the Senate. The insistence of Senate Democrats on looking at the big picture through a small hole is not lost on pro-choice groups.

“Our main objective is to retain a pro-choice leadership … for lots of reasons, but most important is because of the potential of a [conservative] Supreme Court nomination. We are well overdue [for a nomination],” said, Kate Michelman, president of the National Abortion and Reproductive Rights Action League (NARAL), in a conference call announcing the launch of an ad campaign to support the ethically challenged Sen. Bob Torricelli (D-N.J.).

While claiming to be nonpartisan, Michelman admits she has not contacted the campaign of Torricelli’s opponent, businessman Doug Forrester, about his views on abortion. If a call were made, she would learn that Forrester is pro-choice, but he favors banning federal funding of abortion procedures and partial-birth abortion and supports parental-notification provisions.

You published a news story (Nov. 30) about a report from the Institute of Medicine that found that more people die as a result of medical mistakes as compared with highway accidents, cancer or AIDS. This study may come as a surprise to some of your readers, but as a lawyer who handles medical malpractice claims, I can say the report does nothing more than confirm decades of research into death by medical misadventure.

This study suggests that nearly 100,000 people die yearly as a result of medical mistakes by health care professionals, a figure that was confirmed by a Harvard study six years ago. This statistic is alarming enough, but one of the suggestions of the Institute of Medicine (an arm of the National Academy of Sciences) is truly galling: It suggests that a secret database be created to compile evidence of medical mistakes that would not be available for public review.

The excuse offered for the confidentiality restriction is allegedly to “reduce health care providers’ legal exposure and the risk of lawsuits,” an action that somehow would magically encourage the medical establishment to “be more open about errors and give the nation a chance to learn from mistakes.”

This is balderdash. There are many reasons that nearly 100,000 Americans die every year from medical mistakes. Here’s one: Confidentiality laws allow doctors and hospitals to hide incidents of malpractice. In Illinois, the chief villain is the Medical Studies Act, which declares that the activities of hospital committees investigating malpractice are not open to public scrutiny, including the scrutiny of the people affected by the malpractice.

No other industry in America enjoys this kind of protection. Don’t you think that the airline industry would like to conduct its own confidential investigation of every plane crash? Don’t you think that manufacturers of consumer products would like to conduct confidential investigations into untoward injuries with their products?

Of course they would, but public opinion would come down hard on any such attempt by those industries. The same standard of public rebuke should fall upon the health care industry. When mistakes happen in the operating room, evidence shouldn’t be swept under the rug in the risk management office. Once the medical industry accepts the openness that every other industry is subject to, the horrible statistics that we continue to read about will dwindle. Terrence J. Lavin, Loop Dangling the carrot

According to a news story (”Assessor aims for tax break on rental sites,” Dec. 3), Cook County Assessor James Houlihan is asking the County Board to reduce assessments on rental housing and require developers to set aside 10 percent of all newly constructed units for affordable housing.

The reduced assessments make a lot of sense. If a landlord wants the reduction, he participates in providing affordable housing. It’s voluntary, and uses the free market to help ease the perceived housing shortage for the working poor. It also indicates that there is some consciousness that government fees, taxes, regulations and so forth push costs so high that landlords cannot afford low-income renters.

On the other hand, the set-aside requirement is foolish. It reduces the profitability of privately financed projects, and will cause marginal projects to be abandoned. The result will be less construction of rental housing. Why should I develop rental units when I can develop condos without the headaches?

A graduated income tax to replace the property tax would automatically create more affordable housing for the poor. A lifting of the property tax burden would make home ownership more affordable, and would lower rents by the amount of the tax. The burden would then be picked up by those most able to afford it.

Never underestimate the power of tax incentives. After all, they are fueling the condo conversion mania. Larry Langowski, Logan Square A cause to believe in

To my disbelief, the Commentary section attacked the protests in Seattle for the decorum of a few individuals, not on the content of the protests. The blatantly bigoted editorial (”Uncivil disobedience,” Dec. 2) described protesters as “the forces of nihilism - anti-capitalist and, in the case of the many foreigners reported present, probably anti-American.”

This was an international conference. The Sun-Times itself reported that these talks affect as many as 1 billion people worldwide. Is it surprising that “foreigners” were inside the WTO talks as well as outside? The editorial reduced foreigners’ concerns to anti-American spite and ignored their human rights and economic concerns.

Furthermore, Jack Higgins’ cartoon that characterized the protesters as impotent hippies is laughable in its unintended irony. The protests drew more than 40,000 people and represented the organization of more than 100,000 people who are devoted to ending abusive business practices. The United States enacted child labor and minimum-wage laws long ago, but in a global economy, these battles must be fought again with equal passion and care.

Michael Culbert, founder and president of the International Council for Health Freedom (ICHF), and the editor-in-chief of the ICHF’s magazine, died unexpectedly on September 11, 2004. He was 67, and had recently been admitted to the International BioCare Hospital and Medical Center (IBC) in Tijuana, Mexico, where he was vice president and information director.

Culbert was in the front lines in the battle to establish alternatives to conventional medical practice for three decades. He immersed himself in the battle while a reporter and editor of the Berkeley Daily Gazette in the early 1970s, covering the trial of Dr. John Richardson in the Berkeley municipal court. Richardson was under prosecution by the state of California for treating cancer patients with an unapproved substance–Laetrile. Politically on the conservative right, Richardson and his supporters took a Libertarian position on the issue of freedom of choice in health care.

In an interview with Professor David Hess for Hess’ book Evaluating Alternative Cancer Therapies (Rutgers University Press, 1999), Culbert recalled his immersion in the world of alternative therapy: “I would go to the Berkeley municipal court…and there were McGovern-for-president left-wing hippies in the audience who were in favor of this John Birch doctor…This was incredible. Here was an issue that was far beyond left and right…. The freedom-of-choice movement was a populist revolution.”

From that moment on, Culbert stated in his interview with Hess, he helped foment the freedom-of-choice revolution: “It was tremendous,” he said, the enthusiasm still evident in his voice. “We went across the country, and we never knew who was going to pop up.”

Investigative reporter Peter Barry Chowka, paying tribute to Culbert in an obituary published in the Natural Health Line, emphasized that “Culbert’s influence on the field of alt med, especially during the critical, germinative period of the 1970s and ’80s…is not to be underestimated.”

Here are an essential handful of Mike Culbert’s credits in the field of complementary and alternative medicine (CAM): He authored or co-authored two dozen books on integrative health care and medical politics. The first was Vitamin B17: Forbidden Weapon Against Cancer (Arlington House, 1974); in the early 1970s, Laetrile was frequently called “vitamin B17. Medical Armageddon, brought out in 1998, became a best seller, translated into several languages and published in more than two dozen countries. Many of Culbert’s books and writings remain in print, obtainable at the ICHF web site.

A lifelong journalist, Culbert published hundreds of articles on CAM. He branched out into videotapes on alternative medicine, producing dozens of these.

He was co-founder, president and chairman of the Committee for Freedom of Choice in Cancer Therapy, Inc., and its successor organization, the Committee for Freedom of Choice in Medicine (CFCM). For a quarter-of-acentury, Culbert edited the CFCM newsletter.

After participating in a ground-breaking survey of unconventional cancer treatments in the US by the Congressional Office of Technology Assessment (OTA), issued by the OTA in 1990, Culbert was invited by the National Institutes of Health to participate in 1992 in the formation of the Office of Alternative Medicine (OAM), the predecessor of the National Center for Complementary and Alternative Medicine (NCCAM).

He was featured speaker and lectured at numerous conferences in the US and in countries around the world, including; Canada, Germany, Guatemala, India, Malaysia, Malta, Mexico, the Philippines, and Turkey.

Honorary acknowledgments of his efforts on behalf of health freedom included: the Lifetime Achievement Award of the New Zealand Charter of Health Practitioners in 1999; and the Humanitarian of the Year citation for 2001 from the Cancer Control Society (CCS). Culbert spoke at the annual conventions of the CCS in southern California every year from the mid-1970s until the year of his death.

Before serving as vice president and information director with the ICHF and IBC, he held similar positions with American Biologics for 20 years. (During Culbert’s stint with them, American Biologics had offices in San Diego and a clinic and hospital in Tijuana.)

Chowka quoted author Ralph W. Moss, PhD, on Mike Culbert in his obit for Mike. Moss had known Culbert since the late 1970s. The two paragraphs that follow are from Moss:

“Michael was such a ‘fixture’ in the freedom of choice movement that it is impossible to realize that he is gone and even more impossible to imagine what the future will be like without him. He had an enormous influence on the course of cancer treatment, although that influence will never be acknowledged in the standard sources. His writings on Laetrile in particular were very influential. He was the first intelligent person I knew who believed that Laetrile was worthwhile. He was my very first contact in the alternative health movement.

“Hundreds of strippers and hookers from all over the world are coming to
New York City for the Republican National Convention. Well, President
Bush said he was going to create jobs, so that’s pretty good.”
–David Letterman

“The Republican National Convention is coming to New York City.
California Governor Arnold Schwarzenegger is going to speak. I believe
this will be the first professional body builder to speak at a
convention since, well, Janet Reno”
–David Letterman

“You guys know about John Kerry’s wife. She’s very, very rich. Teresa
Heinz of the Heinz ketchup family. Apparently she’s worth twice as much
as we thought. She’s worth a billion dollars. Ladies and gentlemen, how
much ketchup are we using?”
–Craig Kilborn

“John Edwards is a former trial lawyer. Which is a smart move
considering the last election was decided in court. Kerry may need him
to step in and sue or something.”
–Jay Leno

“It was so hot today John Edwards was using John Kerry’s head for
shade.”
–Jay Leno

“John Edwards earned a fortune from medical malpractice. So he and Dick
Cheney have something in common. They both know what it’s like to chase
an ambulance.”
–Jay Leno

“Have you been following Saddam Hussein’s trial? They have a mountain of
evidence against him or, as they call it in LA, an acquittal.”
–Jay Leno

“New York City police are now training doormen to be part of the front
line of defense against terrorism. They’re teaching doormen to be on the
look out for suspicious packages and to increase their observational
skills. Unless, of course, the terrorist is a good tipper.”
–Jay Leno

[ILLUSTRATION OMITTED]

“Kerry is hoping that Edwards will bring in a lot of the female vote
because of the way he looks. So Cheney and Edwards are both going after
voter’s hearts … but Cheney is looking for a donor.”
–Jay Leno

“The state of Oregon is considering a bill that would make it legal for
medical personnel to possess a pound of marijuana. In a related story,
Snoop Dogg has enrolled in the Oregon school of nursing.”
–Conan O’Brien

“Last night at a Democratic fundraiser concert, John Kerry played guitar
while everyone on stage sang ‘This Land Is Your Land.’ Then Kerry
admitted that much of this land is owned by his wife.”
–Conan O’Brien

One sunny day in 2005, an old man approached the White House from across Pennsylvania Avenue, where he’d been sitting on a park bench. He spoke to the U. S. Marine standing guard and said, “I would like to go in and meet with President Bush.”

The Marine looked at the man and said, “Sir, Mr. Bush is no longer president and no longer resides here.”

The old man said, “OK,” and walked away.

The following day, the same man approached the White House and said to the same Marine, “I would like to go in and meet with President Bush.”

The Marine again told the man, “Sir, as I said yesterday, Mr. Bush is no longer president and no longer resides here.” The man thanked him and again just walked away.

The third day, the same man approached the White House and spoke to the very same Marine, saying, “I would like to go in and meet with President Bush.”

The Marine, understandably agitated at this point, looked at the man and said, “Sir, this is the third day in a row you have been here asking to speak to Mr. Bush. I’ve told you already that Mr. Bush is no longer the president and no longer resides here. Don’t you understand?”

The old man looked at the Marine and said, “Oh, I understand. I just love hearing it.”

Even though many physicians are concerned about protecting their practices from medical malpractice liability, action under the federal False Claims Act (FCA) is becoming much more likely and is a potentially more devastating threat to a physician’s practice.

There are laws that provide specific penalties for medical fraud, but the federal government has increasingly relied upon the FCA to prosecute these cases. Employing a legal theory called false certification claims, the government can use the FCA to prosecute a physician for erroneously billed Medicare claims.

Associated fines are $5,500-$11,000 per claim plus triple the amount of damages that the government sustains because of false billing.
The FCA also contains a provision that lets private individuals who report billing errors to the government share in up to 30% of any recovery.

The lure of a potential monetary wind-fall leads to instances where employees who can report billing errors to the physician, and correct those practices, will instead go first to the government to report alleged wrongdoing.

The physician is then subjected to FCA litigation and forced to pay for defense fees or to attempt to settle the case rather than continue to litigate, whether engaged in fraudulent practices or not.

Small physician groups and solo practitioners are not immune from damages under the FCA and the fine per claim is not lessened simply because the practice is small.
But there are steps that any physician practice can take that go a long way toward mitigating extended litigation or significant penalties imposed by the government:

* Put a good compliance plan into place and adhere to it. Many practices believe that compliance plans are only for large organizations.

However, consultants and attorneys are available to provide advice in preparing such a plan for physician practices, and can work within a budget.

* Know your employees and the positions that they hold. Every employee should have a job description and the physician should make a point to interact with the employees to leave the lines of communication open.

* Establish a clear procedure to report billing problems. If an employee becomes aware of a billing error, he or she should feel free to report that error to the physician first rather than immediately contacting the government.

* If a billing problem is discovered, take action. Immediately cease that billing activity and put into place a plan to return the erroneously billed money. Doing so can emphasize your lack of intent to commit fraud and willingness to correct any problems.

* Contact an attorney skilled in reporting billing errors to the Medicare carrier and/or government. An attorney who is familiar with such issues can evaluate the extent of the billing errors to determine the potential liability to the practice. He or she can help gather and present the information to the carrier or the government in the manner most appropriate to avoid or mitigate civil and criminal penalties.

* Be proactive. There is no guarantee that a physician will not be the subject of an FCA action. But being proactive in your practice can go a long way toward limiting your liability and avoiding the devastation that actions under the FCA have inflicted on physician practices unprepared for this potential harm.

The medical and insurance lobbies are again flooding the General Assembly with what appears to be an annual wish list of proposed legislation. Every year, we’re told, doctors are suffering from huge malpractice insurance premiums and greedy lawyers and undeserving patients are somehow to blame. The arguments of the doctors, hospitals and their insurers are fueled by hype, hysteria and hyperbole, but precious little empirical evidence to back up their claim that a cap on damages in malpractice cases will give relief to doctors who are crying poor because of insurance costs.
Health providers have special protections available to no one else in Illinois. State law already requires a victim of malpractice to obtain an affidavit from a health professional stating there is a reasonable and meritorious claim before a lawsuit can be filed. This extraordinary requirement has virtually eliminated so-called frivolous cases from Illinois courts. Illinois law already bans punitive damages in malpractice cases. There is already a law that limits the amount that a patient’s lawyer can make in these cases.

Even with those special protections in place, the medical lobby seeks to severely limit the ability of victims of malpractice to receive compensation.
Physicians, more than most professionals, know that you can’t prove a point strictly based on anecdotal evidence. Despite this truth, we continually hear that doctors are leaving rural areas because of insurance costs. Are we to believe that obstetricians and neurosurgeons would opt to practice in Pesotum, Olney and Buckley if their insurance costs were lower? Of course not. As the Congressional Budget Office and General Accounting Office (no shills for trial lawyers) noted, “in scattered, often rural areas . . . providers identified other long-standing factors that affect the availability of services.”

Doctors and insurers also complain that health care costs go up sharply because of “defensive medicine” tactics where doctors order expensive tests because of fear of litigation. The CBO also threw cold water on this claim in its report from January 2004, when it said that such practices “may be motivated less by liability concerns than by the income it generates for physicians . . .” The CBO concluded that any savings in this area “would be very small.” It also found “no evidence that restrictions on tort liability reduce medical spending.” The CBO also stated that “even large savings in [insurance] premiums can have only a small direct impact on health care spending . . . because malpractice costs account for less than 2 percent of spending.”

The CBO stated that while capping non-economic damages, attorney fees and eliminating punitive damages would have an effect of improving “economic efficiency” in the delivery of health care, it also noted that such changes could “undermine incentives for safety” and “make it harder for some patients with legitimate but difficult claims to find legal representation.”

Ultimately, beneath all of the heated rhetoric of the tort reformers, their goal is just that: to make it harder for doctors and hospitals to get sued. If the medical industry in Illinois ever actually made an honest attempt to reduce medical errors that injure or kill patients, one might tend to sympathize with their position. Unfortunately, the opposite is true. The next empirical study in Illinois on how to reduce medical errors will surely be the first.

At the same time, the Department of Professional Regulation last year removed only 12 doctors from patient contact because of substandard care. In many years, half as many doctors are disciplined. Does anybody believe there are only 12 legitimate cases of malpractice in the entire state?

Here’s a revolutionary idea: How about making the insurance industry go to Springfield and justify rate increases above a certain level — say, 7 percent? There is very little regulation of the insurance industry in Illinois. For example, the Department of Insurance has not rejected a rate increase request in 30 years! In the absence of any real regulation of insurance companies, why should we believe them when they blame patients and the legal system for the rate increases?

It is also worth mention that the simple economic cost of malpractice in terms of extra medical care is more than $9 billion annually in America, according to research by the U.S. Agency for Healthcare Research published in the October issue of the Journal of the American Medical Association. That is not a statistic, it is a scandal. The health care industry should be working to reduce medical errors, not recovery by victims of medical errors.

Finally, we have heard plenty of hot air about greedy lawyers in this debate. In truth, this issue is all about doctors complaining that they don’t make enough money. They are the ones asking for a tag day. Here’s hoping that legislators just say “no.”

The campaign for the presidency has come down to two rival ideological visions for the United States. John Kerry wishes to create a middle-class entitlement society, where the government offers free health care, free child care and free college tuition to tens of millions of working-class Americans. In a sense, he is offering to America the mythical and alluring free lunch.

How will Republicans combat this demagogic and Socialistic vision of an America in which government becomes the central force in our lives?

The answer is to offer a nobler counter-vision elevating the bedrock American principles of freedom, opportunity and prosperity. America is not Europe-nor should we be.
President Bush has spoken eloquently lately of creating “an ownership society.” This means pursuing polices that expand home ownership, stock ownership, and new business creation-to foster a nation of capitalists. The idea is that as more Americans become shareholders and gather wealth, their dependence on government will shrink.

The White House has unveiled this attractive, pro-growth vision of 21st Century America, but so far has described only in broad-brush strokes the actual policies it entails. If Bush were to articulate a concrete second-term agenda starting with his speech at this week’s Republican National Convention, however, it would benefit him in two ways. First, a conservative economic agenda would help solidify and energize his conservative base. Karl Rove has spoken many times of the fact that some four to six million conservatives failed to vote in the excruciatingly close 2000 election. Conservatives might wonder if a Bush victory is really a conservative victory if there is no mandate for an economic agenda that promotes freedom, prosperity and smaller government.
Secondly, Bush needs a mandate to succeed legislatively in a second term. Without an agenda, there is no mandate.

So here are five ideas for the Bush campaign that would excite conservatives and advance the theme of an ownership society:

1. A FLAT-RATE CONSUMPTION TAX: Bury the IRS tax code and advance a flat-rate consumption tax. Our antiquated and unnerving tax code is an obstacle to prosperity. From Russia to Estonia to Hong Kong, flat taxes are taking hold. Bush is taking baby steps toward a flat tax by cutting dividend and capital gains taxes, lowering income-tax rates, and phasing out the death tax. But why not end the tyranny of our tax system in one fell swoop? Why not end the failed experiment of the income tax entirely and have a national consumption tax, paid half by businesses and half by consumers? This would do away with tax forms, benefit domestic manufacturers, maintain worker financial privacy, make April 15th just another day, and terminate the IRS. No nation on Earth could come close to competing with American businesses if our firms were liberated from the shackles of the income tax.

2. PRIVATE SOCIAL SECURITY ACCOUNTS: Offer young workers private investment accounts for Social Security. Every worker should be permitted to put aside as much as half of their payroll tax payments into a privately owned IRA account. These private accounts, according to economist Peter Ferrara of the Institute for Policy Innovation, would earn workers about two to three times higher returns on their money than what Social Security promises-and Uncle Sam almost certainly won’t even be able to keep those promises. Voluntary private accounts for Social Security would give tens of millions of young workers a golden entry ticket into the ownership society. Perhaps 80% to 90% of Americans would instantly become shareholders. This plan would essentially privatize the largest federal program and help put Americans on the road to becoming pension millionaires as they build up nest eggs of real wealth.

3. TORT REFORM: Disarm the trial lawyers. Baseless lawsuits are to America’s economy what termites are to wooden homes. They undercut economic growth, slow innovation, and raise prices of almost every product from health care to jungle gyms. In its brilliant report, Trial Lawyers Inc., the Manhattan Institute estimates that the net annual cost to Americans of frivolous lawsuits approaches $500 billion. Americans pay the equivalent of a 5% trial-lawyer tax on the goods and services they purchase. In the health care sector, costs are inflated by about twice that amount thanks to medical malpractice suits that benefit a few patients who win the lottery and the trial bar, which earns hundreds of millions of dollars on other people’s misfortunes and then funnels a share of that money in the form of campaign contributions to left-leaning Democratic candidates. Tort reform would include caps on judgments, the end of joint and several liability-which often means that a firm that is only 5% responsible for an injury must pay as much 100% of the damages-reasonable caps on legal fees in cases where the government is the plaintiff, and “lawyer free” products, allowing consumers to buy products at cut rate prices, by waiving the right to sue.

Blaming lawyers, insurers or anyone else for the malpractice crisis has been a fatal mistake of the medical profession for decades (”Line Drawn in War With Trial Lawyers,” July 15, 2004, p. 1).

Physicians and many of their representative organizations at the national, state, and specialty levels have been aware of the ongoing problem in liability insurance and the civil justice system for generations. Over the years, physicians have poured hundreds of millions of dollars into these associations, which in turn have contributed heavily to the legislative efforts.

All are painfully aware, as Dr. J. Chris Hawk III said, that in fixing the civil justice system, “national efforts have failed and state successes have been few and far between.”
Today, as 30 years ago, the American Medical Association can only say that it is close to solving this problem and Sen. Bill Frist (R-Tenn.) can only reply that the AMA would have reform if it were more flexible.

After 30 years of mistreatment, is it not time for another kind of remedy?

It is possible to fix the civil justice system, rein in the insurance industry, protect the patient’s right for recompense, and restore the physician’s true function without the fear of being an abundant quarry worthy of pursuit. The missing component is political clout, which is achieved through organization. Presently, physicians are by far the least organized of all professional/labor groups. The AMA and other national, state, and specialty medical associations should reexamine their bylaws. Physicians must be allowed to bargain collectively and strike if necessary.
Sounds like a call for unions. It is not. It does not have to be. It is the only way left to level the playing field for medicine and to empower the physician to better exercise the [Hippocratic] oath.

It is pointless to criticize Dr. Hawk or Dr. Clinton “Rick” Miller, who also refused to treat a lawyer, for their mini-strikes. Their position is an act of desperation brought on by the AMA’s inability to lead physicians out of this quagmire. They are only messengers! If no one is listening and there is no change in strategy, many of AMA’s delegates might be forced into the ultimate strike of having to close their practices completely. Can the physicians step up to the plate and draw the line where it belongs?