Thursday, February 25, 2010

No Nobel Prize For Me

In the early 1980s I tried a lawsuit on behalf of a severely autistic boy whose mother, a nurse anesthetist, administered a popular inhalational anesthetic agent 47 times during her pregnancy with the child to pediatric patients undergoing minor surgery. In these 47 cases, the anesthetic was administered in a manner that exposed the mother to nearly as much anesthetic as the patients to whom it was being given. The expert chosen to defend the pharmaceutical company mocked me during his trial testimony that he would be the first to award me the Nobel prize in medicine if, as I claimed, the agent was discovered to be a cause of the young man's autism. This expert privately stated to me after his testimony that he wished that I had "gotten to him first," suggesting that his sworn testimony was due to something other than principled scientific reasoning. The case was lost (and, alas, I did not get my prize), but the matter serves to illustrate quite nicely the trenchant disposition of industry in America to ignore basic facts, the most simple of which is to conclude that exposure in embryonic/fetal nerve tissue to substances capable of harming that tissue can express itself in visible damage to children across a wide spectrum of expression. The extent of prenatal damage to the tissues of children from exposure to a variety of toxins is one of the tragic untold stories of our industrialized society and, so long as politicians, judges and medical researchers are subsidized directly or indirectly by industrial America, the subject will be ignored or dismissed as the figment of imagination.

Systematic erection of procedural and substantive requirements have evolved that must be in place before so-called scientific researchers can offer 'definitive' conclusions about cause and effect. What industrial America has been successful in doing is to establish a couple of pre-conditions, such as epidemiologic evidence that a substance causes a certain type of harm before that substance can be specifically indicted. For example, I once had a substantial jury verdict obtained in Tyler, Texas federal court tossed out by the fifth circuit court of appeals because I failed to present "conclusive epidemiologic evidence that the [drug] caused the child's birth defects. In short, this was [and is] an unrealistic condition because, most simply put, the science of epidemiology does not address the issue of causation as part of its rigor. What was originally developed as a means of measuring and controlling the composition of beer in vats has now been set as a standard of proof of individual scientific causation by a group of federal judges with no known scientific background. The carefully orchestrated plan to impose this unrealistic and unscientific requirement mirrors the efforts of the conservative movement since Reagan to impose a pro-business, restrictive limitation on the rights of individual citizens to obtain redress under the seventh amendment to the Constitution. The net effect of these restrictions is to continue to ignore substantial health problems occurring daily, such as autism in all of its variants in children being exposed to toxins in utero.

Monday, February 8, 2010

I'm sorry, I Just Couldn't Help It

I’m sorry, but I just couldn’t help it. Last evening at a Super Bowl party, one of the persons in attendance, a very nice person, made the comment in an entirely different politically-unrelated context, that she didn’t like science fiction of any kind. I asked her, “You watch Fox news right?” When she nodded affirmatively, I continued, “So then you do watch science fiction.” Several other guests murmured quietly to themselves and I felt the lash of general disapproval at the dinner table. After that I had a sleepless night. My actions and statement bothered me. Had I unfairly attacked this individual simply because I was put out by Fox News and Chris Wallace’s handling of Sarah Palin’s speech to the Teabaggers Saturday evening? In that speech, Palin, who is known to stretch the truth and is employed by Fox, took cheap shots and made several wildly exaggerated claims about Obama. While she stood there and read from a prepared speech, she mocked Obama’s use of a teleprompter. What is a teleprompter other than a prepared speech? In substance, Palin's tea party speech was full of false and misleading national security claims including suggesting that the Obama administration doesn't use the word "war," that interrogators didn't ask alleged Christmas Day bomber UmarFarouk Abdulmutallab about his training and future al Qaeda plots, and that Abdulmutallab has not provided information since he "lawyered up and invoked our U.S. constitutional right to remain silent." What really irritated me about this is that Chris Wallace interviewed Palin on his Sunday morning talk show and, if Fox is truly fair and balanced [as it claims about a hundred times an hour on air] , a fledgling interviewer should have pointed out to Palin the obvious exaggerations and called her to account for them. Nothing of the sort took place. All Wallace did was to continue lobbing softball questions to Palin which resulted in her intimation that she may be available for a run for the presidency in 2012. More grievously Palin ragged Obama for calling the ongoing wars in Iran and Afghanistan “Overseas Contingency Operations” rather than “War.” This is an absolute falsehood. Obama has repeatedly used the word "war." He used the word "war" at least seven times during his January 27 State of the Union speech. Moreover, following Obama's January 7 remarks on the attempted Christmas Day bombing of a Northwest Airlines flight -- remarks during which Obama stated, "We are at war. We are at war with al Qaeda" -- numerous conservative media figures started falsely suggesting that Obama had not characterized the fight against terrorists as a war. In fact, in his inaugural address, Obama stated that "[o]ur nation is at war against a far-reaching network of violence and hatred," and he has repeatedly discussed terrorism as the rationale for U.S. military action abroad

Bottom Line: I apologize openly and publicly to my friend for saying what I said last night, not that it wasn’t true, but in the context of a genial discussion about other subjects. This morning I will also call her and apologize personally for my exuberance.

Sunday, February 7, 2010

Tort Reform with a Texas Twist

Trial lawyers have been the whipping boys of Republican politics since the Reagan era. The popular game of blaming medical malpractice suits for the ever- increasing cost of medical care has been the favorite pastime of folks who like their ideas simple, straightforward and tinged with demagoguery. The terrible irony of all this is that the same people who foist the myth of malpractice claims as the scourge of all scourges on the public are also the first to raise gun ownership as a God given right under the Constitution. Like I said, these people like their solutions simple and straightforward, apparently so much so that they cannot be bothered with the nuance of actually reading the Constitution further than the first two or three Amendments to the Bill of Rights. The Gun Amendment is the second Amendment. It is easy, simple and straightforward and, most importantly, not buried in a complicated list and appearing early in the list of enumerated rights provided by the wisdom of our founding fathers. Not like the Seventh Amendment. The Seventh amendment guarantees the right of a citizen harmed by another to civil trial by jury. That Amendment, on the same page but further down on the list than the Second Amendment, is ignored by this group known as Republicans, Tea Baggers, whatever, because it is easy to blame something or somebody that you either can’t understand or shoot. It’s okay for these people to fervently defend the right of gun ownership although in so doing, it costs thirty thousand fellow Americans their lives each year. Medical malpractice, according to serious studies performed by doctors, kills more than one hundred thousand patients each year. To this group I say let’s make a deal. Let’s agree to honor the entire Constitution, including the Seventh Amendment, rather than pick and choose. Finally, let me tell you about tort reform Texas-style. In a small town in western Texas, two courageous nurses reported the questionable antics of a local doctor [who had previously been reprimanded several times and whose license had been restricted for his activities related to a weight loss clinic] to the Texas Medical Society. Because of their actions, these nurses are now being charged with a ten year felony for alleged misuse of confidential information. The sheriff who brought the charges against these women is a patient of the doctor and claims that the doctor saved his life after suffering a heart attack. This episode is the poster child of the tort reformers. Toss the baby out with the bath water. Folks, we can do better than this, a whole lot better.

Saturday, February 6, 2010

The Citizens Mutual Case and Viagra/Levitra

The U.S.Supreme Court ala Scalia took it upon itself to upend and reverse over 106 years of precedent by declaring recently that corporations have the same constitutional standings as flesh and blood individuals do when it comes to freedom of speech as guaranteed by the first amendment. The mantra of conservatives led by Scalia is that activist judges should not replace, for example, statutes enacted by legislative bodies to satisfy the judge's moral code as to what is right or wrong. In Citizens Mutual the five man conservative majority abandoned this principle and reversed both long standing judicial precedent, including two recent decisions of its own, and the Congressionally-enacted McCain Feingold law which placed common sense limitations on unbridled corporate spending in elections. The previously-existing rationale for placing spending limits was the undue influence that big dollars from corporate coffers could have on what is intended to be a fair and balanced (sound familiar?) process. Let me show by example what can happen now that the activist Court has shown its true colors. Let's talk about Viagra and Levitra. Untold millions of dollars are spent on the advertising of these two drugs on television and in journals. This money is being spent to push the use of these two drugs on an alleged disease process that most of us guys didn't even realize existed a decade ago. Regular TV watchers, including young kids, can spout the side effects of these drugs readily [do not take this drug if you are taking nitrates . . .you should see a doctor if an erection last longer than four hours. As Jay Leno said "I can't even smile that long."] The corporate effort beyond the pushing of Viagra and Levitra into our collective consciousness has worked infamously, but what is reveals in the present discussion is the power of the almighty dollar in influencing decision making. What follows is a comment of mine that appeared recently in response to an editorial in the New York Times.

February 2nd, 2010
8:35 am

The country is getting now what it paid for by electing "He who would be King" (Bush the Second) who placed the final touches on the process of corporatizing America by putting Roberts and Alito (Scalito) on the bench. The bottom line is that corporations have the money to outshout and drown out anyone with a smattering of principle. As Professor Fish points out, the Republican Teddy Roosevelt pointed that out in no uncertain terms more than 100 years ago.

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