Sunday, August 30, 2009

A Level Playing Field

The Supreme Court has scheduled a matter for rehearing before the beginning of the new term which suggests that judicial activism at its very worst is in play among the conservatives on the bench. At issue in the case is whether a short film about Hillary Clinton funded by a corporate interest group is constitutionally protected freedom of speech or permissibly banned by the McCain-Feingold Act. Congress, in passage of that Act, determined that the potential influence of corporate campaign expenditures on the outcome of elections is so pervasive that limitations were appropriate and constitutionally acceptable.

It is clear that there are two fundamental issues squared off against each other that are at the very heart of our society; freedom of speech and taint-free elections. It must be remembered that, although corporations are treated like individuals in our society, they should be limited in the arena of campaign corporations because of the potential economically-disparate impact their activities may have on the outcome of elections. Even individual citizens have long been limited to dollar amount contributions because it has been recognized that wealth should not be a determining factor in the outcome of elections. For a corporate entity to use money to produce a documentary that is obviously intended to influence the outcome of an election is the de facto equivalent of a campaign contribution.

Why the Supreme Court has chosen to have this matter re-argued is anybody’s guess, but the implication is clear; the conservative majority on the bench feels disenfranchised by the current administration and is headed toward approving corporate involvement in politics on a scale that will ensure victorious Republican outcomes in the future. Instead, what we need is affirmation of McCain-Feingold and continuation of a level playing field. Without taint-free elections, freedom of speech concerns would be illusory.

Wednesday, August 19, 2009

My Head Hurts Too

The health care debates are starting to fray my nerves. I have patiently waited on the sidelines, cooling my heels, doing what every well-meaning American should be doing, thinking about what change in health care portends for our great nation. Where should one start? At the outset, one must decide whether the ability to receive adequate health care in our society is a right or a commodity. A friend, Don S. has commented on earlier observations I have made on this issue and his position, I think, is genuinely reflective of those who are opposed in principle to “Obamacare. Don states, ”My primary objection to this healthcare reform is as much philosophical as it is a fear of losing great healthcare coverage and bankrupting the country. Some of stronger faith than I believe the government can do a better job than the private sector, I do not. While I believe we do need some sort of Healthcare Reform this isn't it. . .”

As I answer that question for myself, I need to focus on the subject of denial. Denial is a pathologic thought process in which its sufferer refuses to look at critical facts, the net effect of which, of course, results in a refusal to deal with the obvious. The diatribe that follows is my assessment of the denial existent in our current health care crisis that has manifested itself for years in its various forms. I remember my earliest medical school days at teaching rounds at the University of Michigan Medical School in the mid-sixties. On those occasions the students were taught that they should refrain from referring to uninsured black patients as "crocks." The issue of whether a white patient was insured or not was never discussed or considered. Stated another way, even in the earliest ventures into medicine, those with black skins had a label attached that carried with it the suggestion that they just might not be entitled to the quality of effort that white folks received. Did that make a difference at that level of medicine? Absolutely, because black patients became the opportunity for young developing physicians to practice various techniques, such a plunging a needle deep into a femoral vein to obtain the morning blood sample rather than take the time to find a good vein in the arm. A new student, prompted by those above him in the chain of command, would never dream of doing such a procedure on a white person. If one was black, everyone in the chain from lowly student to intern to medical resident to staff to professor simply knew that somehow he/she was in the hospital because of his/her excessive use of alcohol and that their treatment was being provided gratuitously. In short, a moral judgment was made at the outset of medical treatment that black people were undergoing a disease process their behavior had caused, an assessment never to be applied to white people. In that time frame, as now, the average medical student was exposed to the concept of alcoholism for one hour in a lecture early in the second year of medical school. A crude estimate, my own backed by some pretty solid statistics, is that then and now more than fifty percent of all medical visits to doctors or hospitals result from the medical complications of the abuse of alcohol in all people, white or black or shades of skin color in-between.

For awhile during this era, I paid for my medical school tuition and fed my family by performing physical examinations at a small hospital. I remember vividly being threatened with the loss of my job because after the workup of the wife of a prominent local businessman, I put my first three impressions as follows: 1) acute alcoholism. 2) chronic alcoholism and 3) rule out gastric ulcer. The patient had reported to me that for the three years before this hospitalization she had been drinking a fifth of vodka daily, but had increased her usage to nearly two bottles daily in the two weeks prior to admission. She was admitted because she started to vomit blood. I was told by the hospital administrator to change my written report because the woman's insurance would not pay for her medical treatment if the diagnosis was as I had stated. The woman's private physician called and yelled at me for putting this "label" on her. I made the changes and didn't argue about it. Denial, the primary symptom of alcoholism, extended far beyond the user to the system itself. That inherent fault in the system is intact today.

Flash forward nearly ten years to the early 1970s. The attitude had not-so-much changed as shifted to include drugs, particularly heroin, in the analysis. By then, I was the director of substance abuse services for the Michigan Department of Corrections. As a basic statistic, it was well known that more than fifty percent of all persons under the supervision of the correctional system (prisoners, probationers and parolees)were involved with the system because of their abuse of alcohol or drugs, usually both. I designed a treatment program for anyone in the Michigan correctional system. The hook of the program was that the prisoner/parolee/probationer had to contract with the Department of Corrections to alter their use behavior to gain early release or reduced supervision. Two years after the treatment program started, it had reduced the recidivism rate by more than sixty percent, but the federal funding for the program was discontinued and the Department of Corrections dropped the program. Knowing that federal funding was ending, I had approached several large insurance companies and asked that they consider establishing a program to insure those who my program successfully rehabilitated. I was literally laughed at for making the absurd request. In the same time frame in a discussion with the chief of medicine at Harper Hospital in Detroit, he told me that physicians did not treat alcoholism because it was a sociologic problem and not a medical disease. Denial in another form exemplified.

My point in mentioning my early experiences is to emphasize and illustrate that there is a long standing and fundamental knowledge that not only criminal behavior, but many, many, many (note well the three 'manys') medical problems are caused by excessive drug/alcohol patterns of use that insurance companies and the medical profession have never been willing to accommodate, much less acknowledge. But to do something about the problem, to recognize it as such, is verboten because of the risk of triggering the 'uninsurability' wrath of the insurance industry. The built-in denial has a rational basis if one's orientation is to increase the profitability of running an insurance company or maintain an economically viable medical practice.

As my professional live evolved in the mid-1970s to that of trial lawyer, I became profoundly interested in the adverse effects of prescription drugs on users. If there is one major conclusion that can be drawn after nearly thirty five years of law practice in this specialty area, it is that most adverse drug reactions, minor or severe, go absolutely unrecognized by treating physicians. As an example, a recent study published in a responsible journal concluded that there were 28,000 deaths in Michigan each year due to adverse reactions to prescription drugs. Less than 10% of these incident were reported as such in the medical records of those who died. The one hour lecture on alcoholism during the sophomore year of medical school occurs within the framework of the one semester course during that year in pharmacology, the study of drugs. For the remainder of their professional lives, physicians learn to rely on what drug companies tell them about drugs. What do they learn in that process? Not much. The ignorance of physicians in this area, in conjunction with the likely legal responsibility, automatically guarantees denial as a major force at work. To illustrate my point in the context of the current discussion, insurance companies will pay for psychiatrists to adminsiter drugs to patients, but will resist paying for what the patient really needs, i.e, mental health counseling.

Now what does this diatribe mean in the context of the health care plan? Alcohol and drugs, illicit or prescriptive, and racist-tinged patterns of treatment are only part of the problem. Our society has learned a great deal about the roles of smoking, exercise and proper nutrition in the health of our nation. One of the criticisms that has been voiced about the Obama health care plan is the fear that people will be punished because they are overweight or smokers or because they do not like to exercise. In short, the public wants it both ways. They want to be able to continue to eat, drink, smoke and vegetate in front of a TV set for hours each day, but they want others to pay for it without recognizing or acknowledging the role of their own behavior in creating their health status. In other words, denial is the major symptom of our current health care system across the board, patient and doctor. To deny the existence of denial is to deny the premise that access to medical treatment is something other than a commodity to be purchased, each according to his/her economic levels. I maintain that full and complete access to all aspects of medical care is a right rather than a privilege of economic class or ethnicity. But the roles of all, particularly the patient, must be defined in terms of accepting certain responsibilities for one's own health status.

Don comments again, “Again I will agree we need some reform in Healthcare but one that has ABSOLUTELY NO GOVERNMENT CONTROL over the Healthcare we receive, leave that to the patient and physician. Can you imagine the bureaucracy this is going to create in Washington and how many more Public Employees there will be in th is country. Who's going to pay for it??? If the Dems succeed and pass a Bill that moves us towards a Single Payer Healthcare System (as our President has said he wants on a number of occasions) I can see the politicians rhetoric in the future for raising taxes. Kind of like the states; if we don't raise taxes we will have to close down prisons and release all kinds of criminals into the neighborhoods, lay off teachers & state police. Instead it will be even more sinister like, stop vaccinating children, cut down on your prescription drugs, eliminate life saving procedures, basically saying you will die if we don't raise taxes.” And “Unlike you I do not believe this is an organized effort by the Insurance Companies. I could be wrong but if they are involved the grassroots movement is having a much greater impact. I have been to 2 Tea Parties and mingled with the Mobsters and can tell you first hand nobody told them to participate and raise hell, they are just common folk.”

My response is that I believe the health care insurance industry has paid millions of dollars to public relations firms (just as did the tobacco industry) to find the rhetoric and cliches that push buttons of people who are ideologically inclined in the first place to oppose Obama on just about any issue, big or small. For example, "hands off my health care" is a slogan that feeds off anti-government sentiment and does not take into account the fact that Medicare is a demonstrated extremely effective government program which does not interfere whatsoever with the physician-patient relationship and that the insurance industry has deprived Americans of basic health care rights by inserting itself into the physician-patient relationship in countless ways on a daily basis throughout the United States. Moreover, if the government really took "hands off" the life of its citizens, we would not have public schools, police departments, fire departments, roads, Medicare, Social Security, unemployment insurance, a minimum wage, worker's compensation, the armed forces, public sanitation and so on.

Sarah Palin is such an easy target that I am reluctant to use her as an example, but her reaction to the inclusions of certain language in the proposed bill inserted by a Republican congressman illustrates my point quite aptly. Before she quit her short tenure as Alaska’s governor, she endorsed a proclamation for the elderly to prepare living wills to guide end of life decisions regarding healthcare. The language in the health bill which allowed the elderly to do exactly that (by consulting with personal physicians) was characterized by her as “death squads.” Of course, some people who believe people like Palin who just make things up without factual bases were upset. Assessing the various reactions to her stupidity is where the rubber meets the road.

Don writes further, “My guess is we may have differing views on the proposed healthcare plan and whose behind the outrage . . .I also feel a very deep sense of loss regarding our elections process. It is now so expensive to run a campaign it wreaks of abuse and corruption. The money that flows into campaigns directly and indirectly from Unions, Special Interest Groups, and Corporations is staggering. Add that to the number of Lobbyists in Washington and it's no wonder constituents wonder just who their elected officials represent. I always go back to the old adage, the first thing a politician does when they get in office is start planning for re-election, and for most of them they can't do that without big bucks. This goes for Republicans as well as Democrats. Maybe that explains why the Republicans ran McCain. . . . In closing let me apologize for rambling on and on and like I said at the beginning all of this is not directed solely at your email and concerns, I just can't help myself. Got to go now because my head hurts.”

Don then signs off as “An Independent Voter,”

Don, let me say this to you directly. I share your sense of loss and my head hurts too. The realization at this stage of my life is that the ideals of our American way of life may be just words that are mouthed beyond which there is no real meaning bothers me greatly.

Tuesday, August 11, 2009

Am I Wasting My Time Because of Puppets Dancing on a String?

Am I Wasting My Tme Because of the Puppets Dancing on a String?

While the title of this discourse suggests that it is going to be about me, let me suggest that it really isn’t. However, let me add the disclaimer that I need to mention myself at the outset only because I sense battle fatigue and despair moving in on my psyche much akin to a grief that arises from the loss of a loved one. In this regard, the great spirit of our nation in the form of its various cherished freedoms (speech, expression, religion, etc.) appears to be losing ground permanently to the corporate crowd. Let me explain.

The wisdom of our country is such that for two hundred and thirty plus years a set of rules has evolved that place certain restrictions on the freedoms which make our country so unique. While the first amendment of the Constitution guarantees freedom of speech, this guarantee is by no means absolute. One example, a person cannot yell “fire” in a crowded theater (unless there is a fire) without facing the legal ramifications of doing so. Likewise, since the beginning of our great republic, it has been recognized that the financial muscle of corporations carried the potential of feathering their nests at the risk of distorting and damaging the public interest. Thomas Jefferson, the writer of our Declaration of Independence also wrote in 1816 declaring his hope to “crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” A variety of congressional acts over the years (the Tillman Act of 1907, the Federal Corruption Act, and McCain Feingold Act of 2002) all sought to place limits on the ability of corporations to control elections and governments by placing limits on the kinds of activities and money that could be used. Adam Cohen points out this morning in his editorial in the New York Times that the Supreme Court in “Citizens United v. Federal Election Commission, in which the ban on corporate contributions was not a central issue; told the parties to prepare legal briefs on the ban’s constitutionality; and rushed to put oral arguments on the calendar in September before the new term even starts.” In short, the ‘judicial activism’ which Republicans complain about is in full bloom from that side of the aisle as the conservative court appears ready to strike down 230 years of restraints on “aristocratic” America at the expense of its citizenry.

But, in and of itself, this is not the source of my emerging sense of loss. Instead I direct the reader’s attention to the current health care imbroglio. The insurance industry, riding the wave of huge profits since the Republicans struck down Clinton’s healthcare efforts in 1993 is literally pulling the strings of a rather small, but vocal, group of bedfellows hell bent on preserving the claimed rights of insurance companies to continue to dictate the quality of health care in this country. I hesitate to use the term “lunatic fringe” but when one listens to Sarah Palin speak about the “death squads of Obama” deciding whether her child with Down’s syndrome should live or die, that phrase pretty well seems too describe what is going on. I receive well intentioned and thoughtful e-mails from my Republican and conservative friends (I have finally decided that these groups are not one and the same) which reflect, quite frankly, the inclination to distort facts to further ends which are unclear. That is, the ends are unclear unless one recognizes that the overall game plan here is to allow the insurance industry to continue dominating the quality of our national health care which is a disgrace as it currently exists. There are third world nations providing better health care to their peoples than we are doing in the United States. Based upon my past contacts with conservative colleagues, the resistance to Obama’s plan (Actually, it is not his plan at all. Congress, both houses, came up with it on their own.) is racist. Some people seem hell bent on opposing anything that Obama does. Remember that 60% of Republicans, egged on by the likes of Gingrich and Limbaugh and Beck and Hannity, think that Obama may not be legally entitled to be president because he may be a Kenyan.

But I am digressing, simply because it is easy to digress when there is so much going on that is threatening to our way of life and, indeed, our republic. I make this offer to anyone who reads this. I am willing to sit down and discuss my opinions based on the facts of which I am aware and listen to your opinions and try to reach a level of agreement and understanding. If there are areas of disagreement, we can agree to disagree. I will respect your opinions and conclusions, but I will refuse to listen if all that you can give me is a series of clich├ęs and one liners that have been promulgated by the insurance industry and their minions. If we cannot do this at the individual level, how in the hell will it occur at the societal level where its impact is so much more significant?

Saturday, August 8, 2009

I Want National Health Insurance and I am Willing to Pay For It

Our minds play special tricks on us all. We never, ever, think we should pay full price for something, particularly when we know if we are clever, or deceitful, of tricky or patient, we can eventually get it cheaper. In a manner of speaking, this is what our system of capitalism has wrought. There is a marketplace for everything and the system avers that everything within this system has a value of sorts. Value, most simply, is defined by what a person is willing to pay to obtain whatever is being sold. For shorthand sake, I will refer to this system as the “What’s in it for me?” system of values.

There is a point in time and place where this basic system begins to collide with other systems of value. There are some who claim, for example, that we are a Christian nation. Part of this Christian nation consists of a substantial number of Republicans. Taken at face value, it is my understanding that the Christian model serves to modify the capitalistic notion of “What’s in it for me?” with “What is it that I can do for my fellow man?” or “How can I be of service to others?” The question that I need to ask is this; Is it Republicans that are raising all the hell about providing basic medical care for the 45 million people in our society who have no insurance and cannot afford the most basic of medical services?

Another system of value that collides head on with basic capitalism is government. Representatives of various governmental entities are selected, directly or indirectly, by the people to effectuate policies that will benefit all people. As an example, corporate farmers are paid 80 billion dollars annually by our federal government to grow certain foodstuff so that Americans will not have to pay lower prices to obtain the same foodstuff from other nations. Another example is the insurance companies who are paid billions of dollars by the federal government each year so that they can sell medical insurance to Americans, provided these Americans are healthy enough in the first place to not have to use the insurance to pay for medical expenses. People who may actually require the receipt of costly health care are barred from participating in this wonderful shell game that exists for the benefit of the insurance industry under the artful guise that they have a pre-existing illness. This unique twist guarantees the insurance companies a fat profit which brings us right back to the “What’s in it for me?” system of values. A corollary activity of this particular example is that the fat profits from the insurance industry are used, in part, to support those in elected offices across our great nation. In short, this particular system feeds on itself.

There is another disturbing trend that has emerged from the morass these past few years in American society which, in fact, frightens the hell out of me. People refuse to think for themselves and let others think for them. A small handful of idiots are running around the country and are being given face time by the national media. These people claim that our president is a Kenyan. This goofiness has had a profound impact. A recent poll found that 28 percent of Republicans don’t believe that Barack Obama was born in the United States and another 30 percent are still “not sure. That’s nearly 6 out of 10 Republicans refusing to accept a basic truth. These same people apparently believe that it is all right for the insurance industry to continue to bleed Americans dry. We are not the healthiest nation in the world. We are not in the top twenty of such nations. There are three third world nations ahead of us in that regard. According to a Gallup poll released last summer, 6 in 10 Republicans said they thought that humans were created, in their present form, 10,000 years ago and only six percent of Republicans are scientists. While I respect the right of any individual to believe what he/she wants when it comes to religion, the disturbing trend is that these people are acting collectively in anything but Christ-like fashion when they adopt the “what’s in it for me?” actions being dictated to them by the likes of Limbaugh (Democrats and Obama are Nazis) and Glenn Beck.

The bottom line is that everyone in our country deserves to receive medical care irrespective of their ability to pay for it. I am my brother’s keeper and I am willing to pay for the privilege.

Wednesday, August 5, 2009

Insanity is Expecting Different Results from the Same Behavior

In 1966, a long time ago, I began working for a major pharmaceutical company selling the company’s products to physicians and hospitals in the Detroit area. I really didn’t sell drugs to physicians, but rather attempted to sway their thinking about prescribing my company’s products for their patients. What triggers this trip down memory lane is a lead article in today’s New York Times which describes how this company has used ghost writers in the past ten years to write articles about the value of it’s major line of products, estrogen products, for the treatment of nearly every ailment suffered by the post-menopausal woman. As an aside, ghost writing involves the writing of an article by an unknown person, then getting some prominent physician to sign off on it so that the company can use the prominence of the physician. What has been revealed in the latest venture is that this line of drugs causes cancer in women. In and of itself, this would be a terrible tragedy, but it is far worse than that. It is not new news that these drugs cause cancer. It is old news and the company keeps getting away with the same conduct over and over again.

A little bit of history is in order. Estrogens, either naturally occurring (isolated from pregnant mares’ urine), or synthetic (chemically produced from coal tar) have been used and promoted extensively for women since the FDA approved their use in 1941. Prior to that time, a wide variety of animal species had been tested for the possibility that these substances may produce cancer. In fact, the lead synthetic estrogenic agent, DES, was developed specifically as a cancer-producing agent to study cancer. By 1941, there were literally hundred of scientific papers published which revealed that cancer had been produced in organ systems of every species that had been tested; i.e., rats, mice, dog, monkey, to name but a few. Michael Shimkin, M.D. a leading Harvard researcher and physician stated in 1945, “It is to be hoped that given the results of animal experiments that the widespread use of estrogens in women will not produce a catastrophe of calamitous proportions.” [Disclosure; Dr. Shimkin was a friend of mine and an expert witness in the many cases I handled involving DES producing cancer in the daughters of pregnant women administered the drug during the 1950s.]

By the time I started working for the company in 1966, 13 million women a day were taking Premarin, a pill to offset the “curse” of post menopause. The company had designed a promotional pitch to deal with “cancerophobes” as part of a massive promotional effort which pitched the promise of “Feminine Forever” to women who took the product for the rest of their lives. The cancerophobe title was given to physicians who were concerned that the drug could cause cancer if given in the manner suggested by the company. We (the sales staff) were given an elegant brochure which featured the scientific report of a Dr. Karl Karnaky of Houston, Texas. Dr. Karnaky’s summary of his research was “there is no proof that estrogen causes cancer. Instead, there is proof that it, indeed, prevents cancer.” Impressive stuff indeed. By 1970, this sales pitch was successful in nearly doubling the use of Premarin in America. Unfortunately, there were tragic consequences for the users of this product. By the mid 1970s, there were two elegant epidemiologic studies published which revealed quite clearly that estrogen administered via the drug route caused cancer of the uterus in the user when taken for longer than two years. At the time of the publication of these articles I was in a quandary. I had left the drug company and had begun practicing law in Detroit. One of my initial responsibilities was the preparation of the DES-daughter cases. Once, the news that Premarin was causing a lot of cancer in a lot of women hit the headlines, I was inundated with potential new cases of women who had taken Premarin for years and had developed intrauterine cancers. My quandary was “Could I bite the hand that once fed me?” In conducting my own research, I happened to come by the so-called scientific article written by Dr. Karnaky in support of my former company’s promotion. Dr. Karnaky’s research, as described in his own article, was that he gave the drug to ten women. Only one of these women developed cancer, whereas in his opinion, two women would be expected to develop cancer if left untreated. No control group was used. In the area of science, this is referred to as an anecdotal observation and is totally without any scientific merit. I can remember my outrage when I read this piece of trash (which was not provided to the sales staff). Those bastards were willing to compromise the lives and safety of millions of women to produce a profit that even today is in the billions of dollars annually. I had no problem resolving my quandary in favor of the women who had been harmed and represented over the next four years several hundred women with Premarin-caused cancers. [All were settled for sums not to be disclosed per agreement, a common occurrence in the pharmaceutical industry which often buys its way out of its misdeeds by offering hush money.]

Now, today, this article in the Times tells us that cancer in users of this drug were identified in 2002! Wow, what a revelation. This is insane. It is often said that insanity is expecting different results from the same behavior. This company with its dubious claims for a billion dollar a year profit making drug has been permitted by the FDA to strew the path of the American populace with the lives and bodies of hundreds of thousands of women whose only sin is the belief in the knowledge of their own physicians that he/she would do nothing to harm them.

Monday, August 3, 2009

Judicial Activism

Let’s talk about judicial activism. The most common point I hear from my self-designated conservative friends is that liberal judges are judicial activists. They charge that such judges flaunt the will of the people by setting aside laws that legislative bodies pass. In other words, according to the contention, judges make law, not interpret law. This term judicial activism is of dubious meaning, at best, and is generally used by conservatives to attack judges whose decisions they do not like. However, by the most common objective criteria — such as a willingness to strike down Congressional laws as unconstitutional — conservative justices are at least as activist as liberals. In the past terms of the Supreme Court, Thomas, Alito and Roberts have set aside more Congressional enactments than any court in the past thirty years. These three make Scalia look like a flaming liberal. From a lawyer's standpoint, there is an even more troubling aspect of this activism reflected in the actions and opinions of the political activisit conservatives on the bench. This group tends to collectively ignore the principle of stare decisis which is the process by which courts look to past decisions to frame the basis for the current issue under question. For example, if it has been decided in several earlier court decisions that the apple is a fruit, when a case comes up in which the Court is reviewing an enactment of Congress which has declared a tax on fruit, stare decisis should prevail in the determination that apples are subject to the tax (i.e., apples are fruit). The conservative wing of the Court would hold, instead, that the apple is a vegetable and therefore not the subject of the tax. There are numerous examples of this disingenuous approach to decision making by Roberts, Thomas and Alito whose activities raise farce to a new level. The rainmakers at Fox News simply have to mouth the term "judicial activist, without any details or facts, to rally the troops against a judicial candidate whose only disqualifications are being non-white, non-Republican and non-male.