For more than 20 years, a propaganda campaign underwritten by industry groups like tobacco and asbestos manufacturers has been selling the belief that greedy people are clogging the nation’s courts with frivolous lawsuits. And to solve this crisis only one solution is offered, which is “tort reform.”

And for more than 20 years, state after state has passed “tort reform” laws that 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.

In 2006, a comprehensive Harvard study, published in the New England Journal of Medicine, soundly debunked the claim that the nation’s courts are overwhelmed with frivolous suits and that plaintiffs get “jackpot” awards for minor injuries. Yet the belief there’s a litigation crisis persists nonetheless.

I keep watch for news about tort reform, and every day I find dozens of editorials from around the nation demanding that tort reform be part of health care reform. The nation’s editorial writers keep the faith that tort reform will bring about an immediate and dramatic reduction in health care costs, in spite of the fact that it has not done so in any of the nearly 40 states that have passed tort reform laws.

Often medical associations support the “tort reform” movement. Understandably, physicians don’t like to be sued. Further, tort reform laws do tend to reduce the cost of medical malpractice liability insurance, which is a benefit for doctors. Although this savings has never been shown to have an impact on the overall cost of health care in a state, lowered insurance premiums for doctors often are held up as “proof” that tort reform lowers health care costs.

Now a writer at the Law Blog offers an alternative to tort reform to reduce medical malpractice costs — admitting the error. The law blogger argues that when doctors and hospitals realize they have made an error that has resulted in injury, they are better off admitting it, apologizing for it, and offering an immediate settlement rather than going to court.

“Doctors first started admitting errors in 1987 at the Veterans’ Administration hospital in Lexington, Virginia,” the law blogger writes, “and they discovered that, far from resulting in more lawsuits, it actually led to a significant decrease in lawsuits.” This is partly because in as many as 43 percent of cases plaintiffs feel they have to file a lawsuit just to find out what the hospital might be concealing about their treatments.

Some other medical centers also successfully have adopted this strategy to reducing malpractice costs. The risk manager of the University of Michigan’s Health Systems told a conference of gynecologists and obstetricians that after UMHS adopted a full disclosure policy, the number of lawsuits pending against the system dropped by 2/3 and their malpractice costs cut in half.

The 2006 Harvard Study showed that the large majority of malpractice suits that go to trial and are awarded damages really did involve a grave error on the part of the doctor or hospital. Further, the defendants must have known full well that there was an error even before they went to trial. So ‘fess up, and everybody benefits.

— Barbara O’Brien

The 7.0 earthquake that struck Haiti on January 12 set the world on a race to dig survivors out of rubble and give them aid. But the earthquake created many long-term hazards that experts are only now beginning to assess. Among these is the asbestos that once insulated now-crumbled buildings.

Asbestos isn’t dangerous as long as it is sealed within walls. But once released into the air it becomes deadly. Asbestos fibers are easily breathed in and can settle in lungs, causing several kinds of asbestos cancer and other potentially lethal diseases such as asbestosis, also called diffuse pulmonary fibrosis.

Because these diseases can take decades to develop, the children who now live in building rubble are of most concern. Approximately half of the buildings in Port-au-Prince, the capital city, were destroyed.

Martin Bjerregaard of Disaster Waste Recovery, a UK-based non-governmental agency, arrived in Haiti last week to assess the situation and begin planning for debris removal. The plan is to employ local people to sort through rubble, salvaging re-usable building materials such as bricks and safely disposing of the rest. The debris crews will be trained to identify and handle asbestos.

Often after disasters the rubble is simply bulldozed and dumped into ravines and rivers, Bjerregaard said, which both destroys needed materials and creates environmental hazards.

Another non-profit relief agency, Architects for Humanity, is preparing to erect temporary schools and other essential buildings as it prepares to rebuild permanent structures over the next three to five years.

(Photo Credit: U.S. Navy photo by Mass Communication Specialist 2nd Class Justin Stumberg/Released)

Recently I wrote about a constitutional challenge to Missouri’s cap on damages awarded in personal injury (tort) suits. There are similar challenges in other states, and one of these is being reviewed now by the Georgia Supreme Court. As with the Missouri case, the Georgia court’s decision could impact the lives of people asbestos-related diseases, such as mesothelioma, who seek damages in court to care for themselves and their families.

Betty Nestlehutt, a 71-year-old real estate agent, wanted a more youthful appearance. Her doctor recommended that she have a full facelift and CO₂ laser resurfacing at the same time. But these procedures are known to be risky for a woman of Nestlehutt’s age, and the surgery resulted in severe facial disfigurement.

Nestlehutt sued, and in 2007 a jury in Fulton County, Georgia, awarded her $1,265,000. Of this, $900,000 was in noneconomic damages. However, in 2005 the Georgia legislature had placed a $350,000 cap on such damages as part of a “tort reform” law. This would have reduced Nestlehutt’s award to $715,000.

However, Nestlehutt filed a motion to lift the cap. Judge Diane E. Bessen of the State Court of Fulton County agreed, ruling that the damage cap was an unconstitutional infringement on Nestlehutt’s right to trial by jury under the Georgia constitution. Further, the judge said, the cap violates the separation of judicial and executive powers and the principle of equal protection under the law.

Judge Bessen also said,

“Of those injured by health care providers, there are two classification of victims – those who are most severely injured and, consequently, suffer the most pain and suffering, and those who are less severely injured.

“The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated. … In effect, the legislature has shifted the economic burden of medical malpractice insurance costs from the insurance companies and health care providers, including those negligent providers, to a small group of injured patients.”

In her ruling that the cap is unconstitutional Judge Bessen questioned whether a cap on damages is an effective way to lower health care costs, and said the Georgia’s legislature’s reasoning behind their 2005 tort reform law was flawed. This is similar to the argument behind the Missouri challenge, which is that the Missouri legislature based its tort reform law on faulty assumptions.

Judge Bessen also emphasized that noneconomic damages are not just “jackpots” awarded to a plaintiff but are meant to compensate the plaintiff for genuine losses that cannot be documented at the time of trial.

The defendant, Atlanta Oculoplastic Surgery, appealed, and the case was argued in front of the Georgia Supreme Court in September 2009. At that time Michael Terry, Betty Nestlehutt’s attorney, said that the Georgia legislature may have wanted to fix health care, "But they put the entire burden upon the backs and shoulders of those people who are most injured." The Georgia Supreme Court has not yet ruled on the case.

The Food and Drug Administration has announced concerns about the safety of Bisphenol A (BPA), a chemical used to harden plastics that is found in plastic bottles, soda cans, and many other food containers and consumer products. Researchers have found that BPA leaches into the food it contains, and its use is so prevalent that 90 percent of Americans have BPA in their urine, according to the Centers for Disease Control and Prevention.

But is it dangerous? Researchers at the University of Exeter in the U.K. have found a strong association between levels of BPA in human urine and heart disease. The same research team has also found an association between BPA and diabetes. Sarah Vogel of The Pump Handle, a site for public health professionals, has details. Other studies have linked BPA with cancer and sexual dysfunction.

Now, “association” and “link” don’t necessarily mean “cause.” A statistical link between two things doesn’t always mean that one caused the other. But there is growing reason for concern. The FDA is planning targeted studies to determine if action is necessary to protect public health, but it has not yet moved toward banning BPA or even requiring manufacturers to label products containing BPA.

But like everything else in Washington, the issue of BPA promises to become a partisan fight. Conservative groups already have declared concerns about BPA to be some looney liberal plot. David Green of the American Enterprise Institute wrote, “BPA is just the latest bogeyman that the environmental movement has latched onto in order to attack something they’ve hated ever since the phrase ‘Plastics my boy, Plastics’ was uttered in ‘The Graduate.’”

Yes, and where have we heard this before? The first reports of a link between asbestos and mesothelioma cancer were similarly ridiculed. Dr. Irving Selikoff, a physician who published case studies of mesothelioma patients in the 1960s, was belittled as a kook.

Last month the Senate confirmed the nomination of epidemiologist David Michaels, Ph.D., to head the Occupational Safety and Health Administration (OSHA). Dr. Michaels is a well respected scientist who has personally studied of the health effects of exposure to toxic substances such as asbestos. Dr. Michaels has been trying to raise concern about BPA for some time, and to Dr. Michael’s critics, this made him an unacceptable choice for the OSHA position.

Last fall the U.S. Chamber of Commerce, which headed an effort to block Dr. Michaels’ nomination, listed Michaels’ concerns about BPA as one of the factors that disqualified him. Calling BPA “a plastics hardener some consumer activists and many trial lawyers claim is unsafe,” the Chamber claimed that Canada’s equivalent of the FDA had found BPA to be safe.

In fact, that Canadian governmental agency had BPA banned.

The United Nations complex in New York City contains some of the most recognizable buildings in the world. The Secretariat Tower, designed by the renowned French architect Le Corbusier, is considered a classic example of the International or Bauhaus style of architecture. The distinctive Dag Hammarskjöld Library and General Assembly buildings are the other two principal buildings in the complex.

Still striking on the outside, the buildings are falling apart on the inside, Le Corbusier’s tower in particular. A renovation project estimated to cost $1.87 billion is ongoing. But there is also serious talk of abandoning the aging buildings entirely and moving the UN headquarters away from New York.

Joel Kotkin and Robert J. Cristiano write in Forbes, “Today the U.N. building is a mostly empty shell — water dripping through its roof, asbestos lining its ceiling and an erratic heating and cooling system have forced most UN workers to new facilities.” Kotkin and Cristiano want the UN headquarters to be moved to Dubai, which has offered to host the UN if it ever wants to move out of New York.

Granted, Kotkin and Cirstiano seem not to like the UN very much. “The United Nations is a pain in the butt,” they write. “The place is a sinkhole dominated by anti-American, anti-Semitic and authoritarian fantasies.” I don’t know if most New Yorkers feel that way, but I don’t think they would miss the UN if it goes. In Manhattan, the UN is best known for causing traffic gridlock whenever a head of state is in town.

Asbestos abatement is a major component of the renovation. In recent years building management has had to issue several assurances about the building’s safety to increasingly nervous workers. The U.N. Staff Union, representing more than 5,000 staff at U.N. headquarters, objected to the fact that asbestos abatement in the tower began while the building was still occupied. Exposure to asbestos causes the deadly lung disease mesothelioma and other health problems.

Right now, more than 7,000 UN staff members are working in rented offices in Manhattan. Recently Secretary-General Ban Ki-moon and his personal staff moved into a temporary three-story office building built on the UN’s north lawn. However, some staff members are still working in the tower.

— Barbara O’Brien

The Missouri Supreme Court soon will be hearing a constitutional challenge to the state’s tort laws, specifically its cap on non-economic damages that was enacted in 2005. The case, Klotz v. Shapiro, has not only grabbed the attention of the insurance industry, it has also attracted 11 amicus briefs from such disparate groups as the NAACP, the U.S. Chamber of Commerce, the American Medical Association, and the AFL-CIO.

The court’s decision could impact the lives of Missouri residents with asbestos-related diseases, such as mesothelioma, also called asbestos cancer, who seek damages in court to care for themselves and their families. That’s because the 2005 “tort reform” law contains many provisions that make it difficult for citizens to file lawsuits and recover damages and places a $350,000 cap on awards for non-economic damages.

James Klotz, a retired man living in the greater St. Louis area, was given a new pacemaker in March 2004. However, according to the plaintiff, hospital staff failed to change his IV in a timely manner, resulting in cellulitis and then a staph infection. The infection eventually cost Mr. Klotz part of his right leg, part of his left foot, and one of his kidneys, and also left him with impaired hearing.

Mr. Klotz and his wife, Mary, sued St. Anthony’s Hospital and Dr. Michael Shapiro for malpractice. July 2008 a St. Louis County jury awarded the Klotzes $2.58 million, which included $1 million in noneconomic damages. In a post-trial motion the defendants asked the judge to reduce the noneconomic award to comply with the state’s $350,000 cap from the 2005 law. The judge decided the cap did not apply to the doctor, who had been found 33 percent at fault. But it did apply to the hospital, which was 67 percent at fault. The verdict was reduced by $495,130.

One of the claims in the Klotzes’ appeal of the verdict is that the 2005 law should not have been applied to the case at all, since the underlying injury occurred in 2004. The defendants also have challenged the amount of economic damages awarded by the St. Louis County jury. The jury awarded Mr. Klotz the full billed amount of medical expenses, and the defendants say he should only have been awarded what he actually paid.

But the constitutional challenge of the 2005 tort law is the real meat of the case. A key part of the challengers’ argument is that the Missouri legislature wrote the law as they did because of a faulty assumption — that a “crisis” derived from too many malpractice suits were driving up costs and driving away doctors from the state.

But the fact is that the number of medical malpractice lawsuits in the state long had been in decline when the law was enacted. The sky-high cost of medical liability insurance that so outraged Missouri’s doctors were not caused by over-use of the court system but by bad investment decisions by insurance industry executives.

The amicus brief filed by the AFL-CIO argues that “no logical relationship exists between the cap on non-economic damages” and the objectives of the state legislature. The cap figure is “arbitrary and capricious,” the brief continues, and the tort statute contains provisions that discriminate against the elderly by making them a “suspect class.”

The same argument could be made against the damage caps in most states. If this constitutional challenge is successful, expect similar laws in other states to be hauled into court.

Many sufferers of mesothelioma and other asbestos-related disease are on Medicare. You may have heard the health care reform bill now being debated in Congress includes cuts to Medicare. Will this pose a hardship on America’s seniors?

The House bill trims $440 billion from Medicare spending over the next ten years, and the Senate bill cuts $420 billion. Yes, that’s a lot of money. But it amounts to only about 3 percent of anticipated growth in the program. The wonks say this much can be trimmed without cutting benefits. Savings can be found by reducing waste, fraud, and inefficiencies, they say.

Some parts of the program might get better. For example, I wrote in the last post that the House and Senate bills both promise to close the “doughnut hole” in Medicare Part D that costs many seniors thousands of dollars in out-of-pocket prescription drug expenses.

The biggest question mark is over the Medicare Advantage program. Through Medicare Advantage, the government pays private insurance companies to enroll seniors in managed-care networks. The plans often come with perks not available through “plain” Medicare, such as dental and vision coverage and health club memberships. About a quarter of Medicare recipients are enrolled in Medicare Advantage.

The problem with Medicare Advantage is that it is burning a hole in the federal budget, an even bigger hole than regular Medicare. And much of that money is not benefiting seniors at all.

Medicare Advantage was created by Congress with the theory that private insurance companies would be able to manage seniors’ health care more efficiently than the government. It was supposed to save money, in other words. Conservatives pushed for Medicare Advantage as a way to “wean” seniors away from regular Medicare and eventually do away with the original program entirely. Former House Speaker Newt Gingrich liked to brag that Medicare would “wither and die on the vine.”

But today Medicare Advantage costs the government 14 percent more per person than regular Medicare. Why? Well, possibly because 15 percent of each dollar our government pays to the Medicare Advantage insurers goes into profits, marketing, and corporate expenses. This “overage” is nearly 10 times the rate of traditional Medicare.

According to Matt Sedensky of the Associated Press,

“Advantage companies were paying for multimillion-dollar corporate retreats in exotic locales and hundreds of their executives were being paid more than $500,000 annually. Government reports have shown Medicare Advantage providers continually outpace profit projections. The congressional review released this month showed 34 Advantage companies devoted $27 billion in government subsidies from 2005 through 2008 to profits, marketing cost and other corporate expenses.”

The fact is, the wasteful overpayments to Medicare Advantage that aren’t helping anyone but insurance company executives are putting the whole Medicare Program at risk. If nothing is done, deep cuts in benefits will have to be made. Pulitzer Prize-winning journalist Saul Friedman wrote, “But did you know that many of people on Medicare — more than 8.6 million of you — are inadvertently helping to kill Medicare?” He was talking about Medicare Advantage.

The House and Senate bills both provide for cutting the subsidies to Medicare Advantage and putting limits on the profits the private insurers can make. So, while there are not supposed to be cuts in benefits in regular Medicare, it’s possible there will be cuts in Medicare Advantage plans. But if nothing is done, the whole Medicare program will be in danger.

— Barbara O’Brien

Many obstacles and stumbling blocks remain in the way of health care reform. The House and Senate bills will have to be merged, and then the House and Senate both will vote on the final bill. We don’t yet know what will be in the final bill, or if the final bill will be passed into law. Passage will be especially difficult in the Senate, where it will need 60 votes to pass. It is still possible that after all this angst, just one grandstanding senator could kill the whole thing.

But just for fun, let’s look at what conventional wisdom says will be in the final bill and see if there is anything in it that will be an immediate benefit to people with mesothelioma and other asbestos-related disease.

It is likely that the final bill will provide additional funding for state high-risk insurance pools. Currently more than 30 states run such pools, which are nonprofit, state-sponsored health insurance plans for people who can’t buy insurance because of pre-existing conditions. The biggest problem with such pools is that, often, the insurance they offer is too expensive for many who might need it. Both the Senate and House bills provide $5 billion in subsidies for state high-risk pools to make the insurance more affordable.

Under the Senate bill, beginning in 2014, private companies would no longer be able to deny coverage to adults with pre-existing conditions, nor could they charge higher premiums for people with pre-existing conditions. Until then, the state high-risk pools could provide some help.

Closing the Medicare Part D coverage gap — also called the “doughnut hole” — is another potential provision that could help some patients with asbestos-related disease. The “doughnut hole” is the gap between the coverage for yearly out-of-pocket expenses provided by Medicare Part D and Medicare’s “catastrophic coverage” threshold.

For example, in 2009 Medicare Part D paid at least 75 percent of what patients paid for prescription drugs up to $2,700. After that, patients must pay for all of their prescription medications until what they have paid exceeds $6,154. At that point, the catastrophic coverage takes over, and Medicare pays for all but 5 percent of the patient’s drug bills. The final health care reform bill probably will provide for paying at least 50 percent of out-of-pocket costs in the doughnut hole.

You may have heard the bills include budget cuts to the Medicare program, and this has been a big concern to many people. Proponents of the bill insist that savings can be found to pay for the cuts, and that people who depend on Medicare won’t face reduced services. But this is a complex issue that I want to address in a later post.

The long-term provisions probably will include many other provisions that would benefit patients with asbestos-related disease, including increased funding for medical research. Although there are many complaints about the bill coming from all parts of the political spectrum, on the whole it would be a huge benefit to many people.

— Barbara O’Brien

Among the “sweeteners” added to the Senate health care reform bill is a proposal to extend Medicare for certain individuals exposed to environmental health hazards. And not just any environmental health hazards; in particular, health hazards that were recognized as a public health emergency in a declaration issued by the federal government on June 17. Yes, that would be Libby, Montana.

Libby was contaminated over a period of several decades by mining operations of the W.R. Grace Company. The company took vermiculite laced with asbestos out of the ground near Libby, and in the process asbestos was scattered for miles throughout the community. Hundreds of people have died of mesothelioma and other deadly diseases as a result of the asbestos exposure in Libby, and thousands have been diagnosed with asbestos-related disease.

The plight of the people of Libby was ignored for decades. The EPA began a cleanup in 2000, which is still in progress, but people were, and still are, getting sick, and many have lost homes and businesses because of the contamination. It was not until this past June that any substantive help was appropriated for the people of Libby — a “public health emergency” was issued, and money was set aside to provide some health care to stricken Libby residents.

Enter Sen. Max Baucus of Montana, chairman of the Senate Finance Committee. Baucus held the Senate health care reform bill in his committee for a long time, and he had a big hand in crafting the bill. Some feel Baucus’s dithering weakened the bill; others think his influence made it more cost-effective. Even so, Baucus made noises about not supporting the bill until he was awarded some concessions, and these included the Medicare provision for Libby.

Baucus told Robert Pear of the New York Times: “The people of Libby were poisoned and have been dying for more than a decade. New residents continue to get sick all the time. Public health tragedies like this could happen in any town in America. We need this type of mechanism to help people when they need it most.”

One person’s blessing is another’s boondoggle. People opposed to the health care bill call the Libby provision “pork.” One might argue that specific provisions like this one, however beneficial, should not be part of the federal health care reform bill. But let’s look at the bigger picture.

The party that caused the contamination, the W.R. Grace Company, has largely escaped penalty. This past year the company and three former executives were acquitted of knowingly causing the deadly contamination and covering up their actions. The company did, for a time, pay for the health care of Libby residents who were diagnosed with asbestos-related disease, but the company’s efforts fell far short of what was needed.

The bottom line is that in the case of environmental and public health disasters such as Libby’s, we as a nation have two choices — ignore them, and let the victims fend for themselves, or step up to take care of the problem. And taking care of the problem means somebody’s got to pay for it, either private business or taxpayers.

— Barbara O’Brien

Here’s an eye-popping statistic — every year in the United States, $210 billion is wasted on medical paperwork. That’s according to a recent study by PricewaterhouseCoopers. Physicians, clinics and hospitals must deal with hundreds of different health care companies, each offering a multitude of plans. If federal health care reform does nothing but impose a uniform billing system, all those billions could be saved.

Where else are our health care dollars wasted? As an article in the current issue of Newsweek points out, most hospitals are organized by traditional specialties; each department in the hospital operates with its own record keeping and business practices. When Duke University Medical Center set up a disease management system that coordinated the work of primary care physicians, specialists, pharmacists, and other hospital staff, costs were reduced by 40 percent and patient outcomes improved.

The point is that our patchwork healthcare “system,” if it rises to the level of being a “system,” wastes money all kinds of ways. Many pundits and politicians are obsessed with the idea that medical malpractice is the chief cause of rising health care cost. And a recent Congressional Budget Office review concluded that tort reforms would save the federal budget about $54 billion over ten years. Huzzah! yelled the pundits. Problem solved!

But the same CBO analysis also explained that these savings would amount to only about 2 percent of the nation’s health care costs. Further, because most states already have “reformed” tort law, a substantial amount of the $54 billion is already being saved (see page 4).

Comparing $54 billion over ten years with $210 in one year ought to tell us that uniform billing is a much bigger priority than tort reform. But no lobbyists are being paid to push for uniform billing practices, so we don’t hear about it as much. That’s how Washington works.

People suffering from asbestos-related diseases like mesothelioma need good health care, and they also need to be able to seek damages in court to get the money they need to take care of themselves and their families. There is no reason to sacrifice the rights of Americans to seek justice in courts in order to lower health care costs.

— Barbara O’Brien