When Merlin Olsen died of mesothelioma on March 11, his friends and colleagues reminisced about his career as a professional football player and actor. With Deacon Jones, Rosey Grier, and Lamar Lundy, Olsen was one of the “Fearsome Foursome” of the Los Angeles Rams in the 1960s and 1970s, still considered one of the all-tie great defensive lines.

Merlin Olsen’s Pro Football Hall of Fame citation says,

“Merlin Olsen was a coach’s player. Punctual, steady, gifted, a quiet leader, a player you could always count on. He was a standout as a rookie and thereafter stood out in every game he played for the Rams in a 15- year career. Every game. Fifteen years.”

As an actor he was best known for playing Jonathan Garvey in the Little House on the Prairie series. He was a popular commentator for televised sports events and for years appeared in commercials for FTD flowers.

In 2009 Merlin Olsen was diagnosed with mesothelioma, an aggressive cancer most often caused by breathing asbestos fibers. Mesothelioma can take 20 to 50 years to develop, and Olsen believed his exposure dated to his high school and college years, when he worked summer jobs on construction sites.

A suit filed by Merlin Olsen and his wife, Susan, in December 2009 names a number of asbestos companies as well as some of the companies where he worked, including NBC Studios and Twentieth Century Fox. “During the time period Merlin Olsen was exposed to asbestos, the manufacturers of asbestos products did not warn of the lethal hazards of breathing asbestos dust, despite the fact that those asbestos companies knew that breathing small amounts of asbestos dust could be fatal,” the suit says. “The dangers of breathing asbestos were first published in medical literature in the 1890’s. By the late 1950’s, there were hundreds of medical articles highlighting the dangers of being around asbestos dust.”

Sportscaster Dick Enberg said this of his friend and colleague:

“God doesn’t create perfect men, but he came mighty close when he brought us Merlin Olsen… How privileged I was to call his games as an All Pro, Hall of Famer-to-be Los Angeles Ram, and then to work at his side in the broadcast booth for 12 years. He was meticulous and thorough in his preparation, lessons he had learned as an all A student in high school and college. He was perhaps the brightest to ever play his position in the NFL. He was just as generous as a broadcaster as he was tough as a defensive tackle. I was privileged to be his TV colleague and his friend. I seriously doubt that I shall ever meet another that will measure up to his complete character. He was every part of a gentle giant.”

— Barbara O’Brien

A recurring theme in conservative arguments against health care reform is that, somehow, all the problems are caused by “trial lawyers.” One Republican politician after another will tell you the Democrats’ bill was written by “trial lawyers,” who as a group are said to favor Democrats. They say Democrats are less supportive of “tort reform” than Republicans because “trial lawyers” are big campaign contributors.

They don’t mention that the entire “tort reform” movement was initially underwritten by Big Tobacco and is now kept alive through generous funding by a host of big corporations that channel money through contrived activist organizations like the American Tort Reform Association. And the same sectors of the economy that fund “tort reform” also happen to be big Republican donors. Fancy that.

For must-read research on why conservatives went to war against the legal profession, see “The Attack on Trial Lawyers and Tort Law” by Dave Johnson at the Commonweal Institute. Johnson documents how the tort reform “movement” has been orchestrated by “a small cluster of conservative foundations, motivated both by an ideology interest in weakening constraints on the conduct of corporate entities and a political agenda that seeks to limit trial lawyers’ ability to contribute money to ‘the left’.” They have gone so far as to spread crude cartoons and jokes ridiculing and demeaning trial lawyers.

The “tort reform” movement began in the 1980s when Big Tobacco companies like Philip Morris were being hit with lawsuits from lung cancer patients. Big Tobacco was soon joined by other corporate interests, such as asbestos manufacturers whose employees were stricken with asbestosis and mesothelioma cancer. Today mesothelioma lawyers are often singled out for especially harsh criticism.

But insurance companies balk at paying for treatment for such devastating diseases, assuming the sick person is insured at all. People hit with life-threatening diseases need help, and in our current mess of a system sometimes a lawsuit is the only way to get that help.

But now the attacks on lawyers are getting broader, and scarier. Now attorneys are being demonized for taking on controversial cases and defending unsympathetic clients.

Case in point: Some prominent conservatives recently orchestrated a smear campaign against lawyers now in the Justice Department who, in the past, represented Guantanamo detainees.

A group called Keep America Safe branded this group of lawyers the “Al Qaeda Seven,” and released a video accusing them of un-American values. Keep America Safe is run by Liz Cheney, daughter of former Vice President Dick Cheney, and William Kristol, a conservative activist and “pundit.” Andrew Breitbart’s Big Government website accused the lawyers of “caring more for their political ideological creed than for the safety of US citizens” and predicted darkly that such lawyers would use “procedural tactics” to allow terrorists to go free.

To their credit, this smear went too far even for some conservatives. The Constitution doesn’t say only popular people deserve fair trials.

—Barbara O’Brien

As they debate health care reform, politicians of both parties claim they speak for the people. Republicans in particular say they are justified in doing whatever it takes to block passage of the health care reform bill now moving through Congress, because (they say) the people are opposed to it.

Republican Senator Orin Hatch recently predicted disaster for Democrats if the health care bill is passed. “Only about 25 to 30 percent of them [Americans] are for this bill and they’re generally people who want the federal government to do everything for them,” the Senator said. Senate Republican leader Mitch McConnell warned Democrats they would pay a price if they by-passed Republicans entirely to pass their bill. "To ignore public opinion is not going to put the issue behind them, it’s going to put the issue before them," McConnell said.

Health care reform is a vital issue to all Americans, including seniors on Medicare and people suffering devastating diseases such as mesothelioma. There’s a lot of anxiety about what will happen to the health care people are receiving now if health care reform is passed.

Are the Republicans right, that people don’t want the Democratic Party reforms? If you look at polls, the picture isn’t so clear. Andrew Kohut, director of the Pew Research Center for the People & The Press, told Reuters that "Largely, people say they oppose the proposals they’ve heard about. But when we ask them what do they want Congress and the president to do, most say don’t give up, they want something."

It is true that, over the past several months, in most (not all) public opinion polls more people than not say they oppose the bills favored by congressional Democrats and President Obama. A recent Kaiser Family Foundation poll that found Americans were evenly split for and against the Democrats’ bill. However, that same poll found that when people were asked about individual provisions of the bill, they more often than not approved.

Statistician Nate Silver thinks much of the opposition to the bill is based on misinformation. I agree, and I think that Democrats will hurt themselves much more if they don’t pass the bill than if they do pass it. Once the bill has passed, and people realize their employee benefit insurance won’t change, and there aren’t tanks in the streets, and death panel squads don’t come and haul Grandma away to the Soylent Green factory, I think much of the opposition will fade away.

And when seniors learn the reform bill closes the Medicare Part D coverage gap — the so-called “doughnut hole” — they are likely to become enthusiastic supporters.

— Barbara O’Brien

The recent, shocking death of SeaWorld trainer Dawn Brancheau in Orlando, Florida, is being investigated by the Occupational Safety & Health Administration. OSHA wants to know if safety violations played a part in the death of Brancheau, who was killed by a killer whale.

I hadn’t considered that working in an aquatic park was particularly dangerous, but you never know. Which occupations are the most hazardous? According to the U.S. Bureau of Labor Statistics, these workers have the highest risk of on-the-job fatality:

1. Fishers

2. Timber cutters

3. Airplane pilots

4. Structural metal workers

5. Farm workers

6. Refuse and recyclable material collectors

7. Roofers

8. Electric power line workers

9. Truck drivers

10. Taxi drivers

Of course, the list above only covers accidental deaths while working. On-the-job fatalities are only part of the job hazard picture. A great many lethal job hazards work slowly and silently, so that the fatality occurs off the job. Among these hazards is exposure to asbestos, which causes the deadly lung disease mesothelioma.

Although safety regulations have saved countless lives, perfect safety remains elusive. Fishing will remain dangerous as long as it involves boats and large bodies of water, for example. Boat failure — sinking or capsizing— is the most common cause of fishing fatalities, followed by falling overboard.

Modern fishing vessels probably are safer than the 19^th-century model pictured, but commercial fishing remains dangerous compared to other kinds of jobs. In the period from 2000 to 2006, the U.S. fatality rate for commercial fishing was 1.15 deaths per 10,000 fishermen. By comparison the fatality rate for all occupations was .04 deaths per 10,000 workers.

If you must make your living fishing, try to stay out of the Pacific Ocean. Fishers who work off the shores of California, Oregon and Washington suffered a fatality rate of 2.38 deaths per 10,000 full-time fishermen. The Northwest Dungeness crab fleet has the worst safety record in U.S. waters.

For a long time, Alaska held the reputation as being the most dangerous place for commercial fishing, but the state took steps such as preseason safety inspections and emergency training that made a real difference. So, while many complain about government regulations, sometimes they save lives.

Mississippi Governor Haley Barbour thinks the nation’s governors should have been invited to President Obama’s televised health care summit. “If the White House is truly interested in moving health care reform forward, they need to invite governors to the health care summit,” he said. “After seeing the bipartisan reaction from governors to the previous healthcare bills, it simply makes sense for the White House to seek input from governors before unveiling new legislation that could again be untenable to state governments.”

Gov. Barbour may want to ask Mississippians about what’s untenable. Mississippi has the worst health care in the nation. It is so bad, some residents are getting advice on public health programs from Iran.

Yet Mississippi’s governor wants to decide for everyone else what is and isn’t “tenable” regarding health care.

Gov. Barbour, who is chairman of the Republican Governors Association, is a go-to guy on many issues important to conservatives. Among these is “tort reform,” a critical issue for people with asbestos-related diseases like mesothelioma, who often need damage awards to care for themselves and their families.

According to the governor’s website, a “tort reform” act passed in 2004 solved most of the state’s health care problems by drastically reducing the rate of medical malpractice lawsuits filed in the state. However, Gov. Barbour is untroubled by the fact that Mississippians are more likely to die for lack of medical care than are the residents of any other state.

And what “tort reform” didn’t fix, according to Gov. Barbour, was taken care of by reducing the number of Mississippians receiving Medicaid. Now a group called the Mississippi Health Advocacy Program has acquired a grant of $800,000 from the W.K. Kellogg Foundation to help enroll eligible children in Medicaid or the Children’s Health Insurance Program (CHIP). The Mississippi Health Advocacy Program estimates that 75,000 children in Mississippi are eligible for these services but are not signed up for them.

And why not? The Mississippi Health Advocacy Program says there are two reasons eligible children are not enrolled: One, Mississippi requires an annual face-to-face interview to maintain eligibility, which many people find burdensome and intimidating. Often people don’t know about the interview and learn they have been dropped from Medicaid only when they seek medical help. Second, the state does no Medicaid outreach whatsoever, and people who might want to enroll face a hurdle just trying to figure out how.

Mississippi’s not-user-friendly Medicaid policy has saved the state a great deal of money, Gov. Barbour says, and no doubt it has. And the Commonwealth Fund ranks Mississippi 49th of the 50 states and the District of Columbia in child health system performance.

As the nation debates health care reform, we might want to be sure we’re all talking about the same thing. Most of us, I think, want health care reformed so that more Americans can get medical care when they need it and at lower cost. Apparently some politicians think “health care reform” means something else entirely, although it’s hard to tell what that might be.

— Barbara O’Brien

I write frequently about the conservative push for “tort reform.” The ability to sue for damages is critical to people suffering from mesothelioma cancer and other asbestos-related diseases, because so often people need money to care for themselves and their families. When tort laws are “reformed,” nearly always the reforms make it more burdensome for injured people to file suits and also place arbitrary limits on the amount of damages awarded.

For the past several years, industry groups like the American Tort Reform Association have been pushing tort reform in the states. At the same time, conservatives in Washington have been trying to pass tort reform law at the federal level as well. But some conservatives argue that such “reform” would amount to a big government takeover of state authority.

Robert Levy, a senior fellow in constitutional studies at the Cato Institute, wrote,

“Federalism is a system of dual sovereignty, of divided authority, with the states checking excessive power in the hands of the federal government and vice versa. Most particularly, federalism limits the federal role to those few and defined powers enumerated in the Constitution. Nowhere in that document — or in its ‘emanations and penumbras. — is there a federal power to set rules that control state lawsuits against doctors for malpractice.”

Michael Cannon, Cato’s director of health policy studies, wrote recently,

“For all their talk about limited government and the rule of law, conservatives and Republicans just can’t seem to stop advocating unconstitutional federal limits on med mal liability. Maybe they’ve convinced themselves that all doctors are angels and all trial lawyers are demons.”

A few years ago, Nina Owcharenko of the ultra-conservative Heritage Foundationagreed that tort is a state issue:

“Since the problems of medical malpractice are problems of state law, solutions must rest ultimately in changes in state law. The states remain the best laboratories for tort reform, particularly for medical malpractice claims that involve parties only from within a given state. Congress should strongly encourage states to reform their destructive medical malpractice system in ways that are consistent with the constitutional principle of federalism.”

Although there are exceptions, most personal injury suits are filed under state law, not federal law. As we argue among ourselves about reforming the nation’s floundering health care system, conservatives have argued that controlling costs requires reducing malpractice costs. This is an argument I have debunked here in many previous posts; see, for example, “Tort Reform Is a Red Herring.”

But even if you believe there’s a connection between personal injury litigation and health care costs, the costs that must be reduced are mostly coming out of state courthouses, not federal ones. Conservatives want to use the federal government to impose a single standard on state courts, and there is a strong argument to be made that this would be a violation of state sovereignty — in other words, a big government takeover.

— Barbara O’Brien

In a decision tort “reformers” are calling a disaster — although many others would disagree — the Illinois Supreme Court has just overturned the state’s five-year-old medical malpractice “reform” law. In a 4 to 2 decision, the Illinois justices decided that the law’s cap on noneconomic damages violated the state constitution’s separation of powers. By setting an arbitrary limit on the amount of damages a plaintiff can receive, the legislature imposed a decision on courts that belongs to judges and juries, the justices said.

Recently I’ve written about constitutional challenges to “tort reform” in Missouri, Georgia, and Mississippi. In each of these cases plaintiffs have argued that the legislature has no constitutional right to tie the hands of courts by capping damage awards. There are some other similarities in the four challenges as well.

In each state, the law being challenged was enacted in 2004 and 2005. In each state, the legislature was sold on the idea that there was a lawsuit “crisis” driving doctors and employers out of the state, and the only way to stop the hemorrhage was through “tort reform” laws that limited damages and made it harder to file lawsuits. This is a critical issue for people with asbestos-related disease such as mesothelioma, who so often need damage awards to care for themselves and their families.

And in each state, if you look hard enough, you find that belief in a litigation “crisis” was sold to the legislature by “citizens” groups with connections to the insurance industry and also to the American Tort Reform Association. According to Sourcewatch, ATRA is “a coalition of medical professional associations and various industry groups — such as from the chemical, tobacco and drug industries — promoting changes to U.S legislation to limit corporate and professional liability for damage caused by their products and services.”

ATRA and its network of “astroturf” organizations persuade state lawmakers that their states are judicial “hellholes” driving doctors, insurers and employers out of their states. And the “remedy” to the “crisis” is, of course, “tort reform” laws that place barriers between citizens and justice.

If you listen to ATRA, it seems that so many doctors were being driven out of so many states that one wonders where they were all going. In fact, according to the American Medical Association’s “Physician Characteristics and Distribution” data, the stories about doctors stampeding off to who knows where are, um, false. There is no clear pattern of doctors moving from one state to another because of malpractice law.

Further, in these states stories about a litigation “crisis” were wildly overblown. In fact, a key part of the constitutional challenge in Missouri is that the law was crafted based on a false assumption — that out-of-control lawsuits had created a “crisis” that was driving health care costs up and doctors out of the state. The legislature believed it had to write the law to respond to the crisis.

However, the truth is that the number of medical malpractice lawsuits in Missouri long had been in decline when the law was enacted. There was no “crisis.”

Decisions in Missouri, Georgia, Mississippi, and some other states are pending.

— Barbara O’Brien

Tort reform is a critical issue for people with asbestos-related disease, such as mesothelioma, who often need damages to care for themselves and their families. Tort reformers claim out-of-control personal injury litigation is hurting the nation’s economy and driving up health care costs. However, time after time these claims fall apart when closely investigated.

One of the strongest arguments for reforming “tort” law is that personal injury suits hurt business, including the medical business. “Tort reformers” like to point to reduced rates of med-mal suits in “reformed” states as proof of their argument. Fewer lawsuits mean lower health care costs, they gush, in spite of the fact that there’s no evidence health care costs in any “reformed” state have actually been lowered.

Now an article in the Des Moines Register documents that the rate of malpractice suits is down everywhere, not just in “tort reformed” states. However, it’s not clear why that’s true.

In “Malpractice cases drop, but views on why differ,” Tony Leys writes that one reason fewer malpractice cases are being filed is that it has become more expensive to press lawsuits. It’s often the case that, even when there is strong evidence of malpractice, the cost of the suit might not cover the amount of damages a plaintiff would probably receive, and this is true even where damages are not capped.

But this brings state “tort reform” laws into further question. Whether you agreed with the law or not, at least states could document a real result — a lowered rate of personal injury suits. Now it seems that reduction might have happened anyway.

Iowa has never placed any limits on the awards a plaintiff might receive. Yet in Iowa malpractice suits dropped by 49 percent from 2002 to 2009. Some states that have reformed tort law have seen bigger reductions, but in other “reformed” states the rate of reduction is about the same as Iowa’s.

Iowa doctors still claim they practice “defensive medicine,” over-prescribing expensive tests and procedures, because they fear lawsuits. But “reformed” states with more dramatic reductions in malpractice rate don’t show any measurable difference in the amounts of tests and procedures ordered, either.

A number of studies have shown that a small percentage of “bad apple” physicians are responsible for a majority of the nation’s malpractice suits. The organization Public Citizen has found …

• Since 1991, 5.9 percent of doctors have been responsible for 57.8 percent of malpractice claim payments.
• Only 1.1 percent of doctors were responsible for 20.2 percent of all payments.
• 82 percent of doctors have never had to pay a malpractice claim.

One wonders if some culture of fear has infested the nation’s physicians and made them more frightened of malpractice suits than the reality says they should be.

— Barbara O’Brien

This week I’ve been writing about how the state of Mississippi “fixed” its health care problems with tort reform. Mississippi’s tort reform law affects all kinds of personal injury suits, including suits against employers who failed to protect workers from exposure to toxins like asbestos, which can cause asbestos cancer and other severe diseases. The law makes it far more difficult for injured people to file suits and collect damages.

In particular, the law has reduced the rate of medical malpractice lawsuits by nearly 90 percent, which (it is claimed) has “fixed” Mississippi’s health care problems.

However, Mississippi has the worst health care in the nation. This doesn’t seem to be a concern to much of the state’s government, however, particularly Gov. Haley Barbour. Gov. Barbour boasts on his website how effective tort reform has been in “fixing” the state’s health care problems.

But a major plank of the 2004 law, a cap on noneconomic damages, is now being reviewed by the Mississippi Supreme Court. If the Court finds the cap unconstitutional, health care for Mississippians — well, wouldn’t be affected to any degree that anyone would notice. But Gov. Barbour is concerned and fears the state will revert to the bad old days before the 2004 law, when the state’s health care system was, um, probably no worse than it is now. As it is, recently some doctors from Iran came to Mississippi to teach people ways to take care of their health needs without help from the state, which has pretty much abandoned them.

Here’s the case: In January 2007, Ronnie Lee Lymas bought a beverage at a Double Quick convenience store in Belzoni, Mississippi. As he walked out of the store, he was attacked by some men who had been allowed to loiter outside the store. Store employees made no effort to get help for Lymas and stop the fight. Several minutes into the attack, Lymas was shot and injured.

In June 2007, Mr. Lymas filed a complaint of negligence and inadequate security against Double Quick, Inc. Eventually the case went to trial, and in June 2008 a jury found in favor of Mr. Lymas and awarded him $4,179,350.49 in damages. Then Double Quick filed a motion under section of state code that caps noneconomic damages at $1 million in non-medical services actions. And Mr. Lymas filed a motion arguing that the state damage cap code violates several provisions of the Mississippi and United States constitutions.

After a series of denials and dismissals, the motions went to the state Supreme Court. The Brief of Appellee-Cross Appellant Ronnie Lymas argues that the state code capping damages violates the right to trial by jury under the state and federal constitutions and the state constitution’s separation of powers. Further, the brief states, the code violates a provision of the state constitution that says “[A]ll courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and the right and justice shall be administered without sale, denial, or delay.”

There are similar constitutional challenges now being considered by the supreme courts of Missouri and Georgia. A ruling against damage caps by any of these courts would be at least a stumbling block to the “tort reform” movement.

Gov. Haley Barbour filed an amicus brief taking the side of Double Quick. The 2004 damage cap has done wonders for Mississippi’s economy, he insists. Considering Mississippi has the highest percentage of citizens living below poverty level now, one wonders if tort reform “fixed” the economy any better than it “fixed” health care?

— Barbara O’Brien

Recently I wrote here that Mississippi has the worst health care in the nation. Now I want to tell the story about how desperate Mississippians, abandoned by their government, turned to Iran for help.

But first, I want to tell you about Mississippi’s infant mortality rate. The rate of infant mortality is the number of infants who are born alive but die before their first birthday, per 1,000 live births. In other words, if infant mortality is 5, that means that 5 of every 1,000 babies in that population will not survive the first year of life.

According to the CIA World Factbook, the estimated infant mortality rate in the United States for 2009 is 6.22, which is high for an industrialized democracy. But according to the U.S. Census Bureau, the infant mortality rate in Mississippi is 11.4. Only Florida is worse, at 14.1. By contrast, the infant mortality rate for Washington and Minnesota is 5.1.

Now, here’s where Iran comes in — according to the Times of London, last October “five top Iranian doctors, including a senior official at the health ministry in Tehran, were quietly brought to Mississippi” to advise Mississippians how to lower their infant mortality rate.

This exchange came about when James Miller, managing director of Oxford International Development Group, was consulting in a rural Mississippi hospital. “He was shocked to find that the state had the third highest medical expenditure per capita, but came last in terms of outcome,” the Times article said.

Miller remembered a conference presentation on how Iran radically lowered its infant mortality rates. Facing a shortage of doctors and hospitals, the government launched a program of “health houses” staffed by local people trained to be health workers. The health workers are authorized to provide basic medical services such as diabetes monitoring as well as prenatal and obstetric care. Infant and maternal mortality rates both fell dramatically as a result.

James Miller contacted Iranian doctors to find out if their program might be applied to Mississippi. So the Iranian doctors came to Mississippi to give advice. Although the idea of following an Iranian model was a hard sell in Mississippi, at least one community has begun work on an Iranian style “health house” to provide better care for pregnant women abandoned by Mississippi’s health care system.

Dr Aaron Shirley, who worked with James Miller on the Iranian project, admitted they were staying under the radar. Mississippi government officials, including Governor Haley Barbour, were not involved or informed.

This takes us back to the issue identified in the earlier post — Mississippi has the worst health care in the nation, but as far as Gov. Barbour is concerned, this is not a problem. The governor is perfectly clear, on his website and in public pronouncements, that Mississippi fixed its health care problems by passing a comprehensive tort reform bill in 2004. The 2004 law affected all kinds of personal injury lawsuits in Mississippi.

In the U.S., state after state has passed “tort reform” laws that make it harder for citizens to file personal injury suits and also limit the amount of damages they can receive. This is a critical issue for people with asbestos-related disease such as mesothelioma, who so often need damage awards to care for themselves and their families. “Tort reform” also is being pushed by conservatives nationwide as the way to fix the nation’s health care crisis.

But Mississippi reformed tort in 2004, and it still has the worst health care in the nation. What did Governor Barbour “fix,” exactly?