Monthly Archives: October 2005

National Catholic Reporter Calls for Transparency in Clergy Abuse Scandal

In a strongly worded editorial published October 28, 2005, The National Catholic Reporter, an influential weekly Catholic newspaper, has called on the bishops of the United States to come clean and reveal the true depths of the crippling clergy scandal. The National Catholic Reporter, known for its somewhat liberal but scholarly journalism, has tracked the scandal since 2002. In the editiorial, the paper notes that 3 living American cardinals “have been complicit in what any reasonable observer would term criminal activity.” Of course, the paper is referring to Cardinals Law, Bevilacqua, and Mahony. The three princes of the church still wield great influence in the church in spite of the fact that Bevilacqua is retired and Law is hiding out in a Roman basilica. Mahony remains at the helm of the Archdiocese of Los Angeles and has spent untold millions defending criminal activity by his priests. All three have steadfastly refused to cooperate with civil officials and Mahony continues to fight any change in the civil statute of limitations. While all three men have avoided any criminal prosecution, they have brought shame and embarassment upon the Catholic Church. In its editorial, the National Catholic Reporter has called upon the other bishops to appoint someone like Rev. Theodore Hesburgh, the former President of Notre Dame University, to head a commission to investigate the scandal. Of course, former Governor Thomas Keating thought that he would have access to such documents. He ended up quitting an investigative commission in frustration calling the bishops’ actions something out of La Cosa Nostra.

County sends teams to aid South Florida

A contingent of Osceola County public-safety and electric-utility workers is helping residents in South Florida recover from Hurricane Wilma.
On Thursday, eight Kissimmee police officers left for the Miami area to provide security for Florida Power & Light Co. as the utility restores electricity in the storm-devastated area. They plan to spend a week on the assignment.
Earlier, Kissimmee Utility Authority announced that it was sending repair crews, vehicles and supplies to South Florida to help restore power.
The hurricane left 94 percent of Fort Pierce’s 25,000 residents without electricity, KUA said.
On the night the storm struck, Osceola County and Kissimmee sent 13 paramedics and emergency-medical technicians to the Florida Keys to help with hurricane recovery.
The team was to help transfer hospital and nursing-home patients in hurricane-ravaged areas to other medical facilities.
The team brought its own food, water, cots and supplies and expects to stay in Monroe County as long as 11 days.

A rip in fabric that holds law enforcement together

ike many Americans, I watched with great interest, and with increasing anger, the recent beating of a 64-year-old retired schoolteacher on the streets of New Orleans. The glare of the public eye almost wasn’t there. A New Orleans police horse appeared to be made to walk backward, apparently to block the probing eye of the TV camera.
Unlike many Americans, as a former police chief and current manager of a police academy, I have learned that the facts of alleged police misconduct are many times at odds with the information that comes out publicly. Time after time, I would investigate complaints against officers, only to find the issue to be clouded in misunderstanding or sometimes even blatant lies against an officer making a lawful and professional arrest.
However, even in the eyes of law-enforcement professionals across the nation, who tend to hold back criticism of fellow officers until the very last shred of damning evidence is in, the New Orleans situation was very disturbing. Every officer and police instructor I spoke with in different regions of the country had a similar reaction: disgust.
As the picture speaks a thousand words for itself, so, too, does the obvious crossing of the line with Robert Davis. And while there exists a sliver (and I mean a tiny sliver) that there could be some truth in the position of the arresting officers, an even more unsettling development out of the same situation was the New Orleans police officer who threatened and used profanity with an AP television producer while physically pushing him back against a car.
The blatant and open hostility vented by the officer revealed a brand of law enforcement that could not support a bona fide arrest of that producer and could offer no credible explanation for the verbal barrage of expletives and obvious physical battery. Even if the producer was subject to a legitimate arrest, the officer’s behavior was not acceptable.
When I took the oath of a law enforcer years ago, I told myself that the true measure of what separated me from the bullies and predators in our society was not my badge. Rather it was the inner strength I possessed to curb my impulses and shape my behavior so that “I” did not become “them.” The badge was but the symbol. The true manifestation of policing was within me.
And the true essence of being an honorable law enforcer is in most police officers, deputy sheriffs, and state troopers. New Orleans is a situation that stretches the thread that binds the police fabric together. It pulls at the material and frays the edges, making it easy for an officer to fall victim to his impulses to loot sunglasses or take TVs.
The hidden strength in the blue fabric should be the presence of other interwoven blue threads that lend support for those rare moments of personal weakness. It behooves the rest of us in this noble profession to see the signs of tired and stressed threads and give them support.
When the officer pushed the media producer against the car, I observed several other officers that stood by and watched. Those officers should have been the “cross thread” that gave strength to the situation and intervened. Better yet, maybe they could have foreseen the buildup and moved their colleague down the street to cool off.
The image of New Orleans police as bullies and intimidators on national television does not help the cause of an agency that has strived for some 10 years to break its negative reputation. That impetus to clean up the department’s image began with the arrival of former police Superintendent Richard Pennington (now the police chief in Atlanta) and has come full circle with the recent events.
Nor, for that matter, does it help the image of police professionals elsewhere. While all would acknowledge that the stress on the New Orleans officers during this post-hurricane period has been inordinate, the oath has no clause that makes for allowances of police abuse and brutality.
My 4-year-old son interacts with police officers regularly, pretends that he is one, and wants to be one some day. I am ashamed to say that I had to have him leave the room when the images of those officers breaking their oath came on the television again and again. My little, wide-eyed boy did not yet need to see what happens when the blue fabric that holds the law-enforcement profession together is ripped.

Fla. Physicians, Plaintiffs Lawyers Battle Over Med-Mal Discovery

A West Palm Beach, Fla., attorney has won a ruling declaring that the state Legislature’s implementing law for last year’s Patient Right to Know ballot initiative is unconstitutional because it fails to provide full public access to records on medical errors.
The ruling is at least the second recent Florida circuit court decision in favor of medical malpractice plaintiffs who want to use the new constitutional amendment to obtain previously confidential hospital records on medical errors and physician discipline.
Amendment 7 was passed overwhelmingly by voters last November, and the Legislature passed an implementing law this past spring.
Last month, Theodore Babbitt, a partner at Babbitt Johnson Osborne & LeClainche in West Palm Beach, won a bench ruling from Martin Circuit Judge Robert M. Makemson in a malpractice case that the implementing statute “has the effect of negating significant purposes in portions of the amendment, frustrates the will of the amendment, so I will therefore declare that statute unconstitutional.”
Since the amendment and the implementing law were approved, plaintiff and defense lawyers have battled in circuit courts across Florida over discovery of sensitive hospital records on medical errors. The disclosure of such records could have a major impact on the outcome of malpractice litigation — as well as on the ability of hospitals and their medical staffs to conduct physician peer review and monitor quality of care.
Plaintiff and defense attorneys say that circuit judges in South Florida and other parts of the state have issued disparate rulings on these discovery requests, with some holding that peer review records are discoverable and others saying they’re not. Several cases are in the appellate process.
In July, 3rd Judicial Circuit Judge E. Vernon Douglas in Lake City ruled in a malpractice case that “the Legislature did not attempt to ‘implement’ Amendment 7. … They attempted to abolish it.”
The defendants have appealed Douglas’ order declaring the statute unconstitutional and ordering them to turn over peer review records to the 1st District Court of Appeal. Douglas agreed to stay the order at least until the appellate court decides whether to hear the case.
Both plaintiff and defense camps agree that the issue will have to be resolved by the Florida Supreme Court or the Legislature.
“This is waiting for resolution at the appellate level,” said Lincoln Connolly, of Rossman Baumberger Reboso & Spier in Miami who is representing several malpractice plaintiffs who are seeking hospital peer review records. “There have been a few trial court orders compelling production of records. But to my knowledge, no trial court has forced a hospital to turn over the records before it gets a chance to appeal.”
“You have conflicting decisions not just in different circuits but even within the same circuit,” said Vanessa Reynolds, a partner at Conrad & Scherer in Fort Lauderdale, Fla., whose firm represents hospitals. “Those issues ultimately will have to be resolved by the Supreme Court.”
Bill Bell, general counsel for the Florida Hospital Association, said perhaps two-dozen judges around the state have upheld the implementing legislation, and that he expects the matter to end up in the Supreme Court within the next two years. “There are good public policy reasons” for barring the use of such material in medical malpractice litigation.
State Rep. David Simmons, R-Orlando, a lawyer who heads the House Judiciary Committee, said that if the Supreme Court ultimately strikes down the implementing law, he’ll push to have the Legislature place a measure on the ballot to repeal Amendment 7.
But there may be another complicating factor. State Rep. Dan Gelber, D-Miami Beach, said the Patient Safety and Quality Improvement Act of 2005 passed by Congress may trump both Amendment 7 and the state implementing legislation. The new law says that material generated by “patient safety organizations” is privileged and is not subject to discovery in federal or state court or administrative proceedings.
Congress “protected peer review and very clearly intended to pre-empt state statutes,” Gelber said. “I think they’ll have to look at the federal statute to see if it would force us to make changes.”
EXEMPT FROM DISCOVERY
Amendment 7 landed on the ballot last year as a result of a battle between Florida physicians and plaintiffs lawyers. The Florida Medical Association, dissatisfied with the caps on noneconomic damages it won in 2003, decided to ask voters to place a drastic cap on contingency fees for plaintiff lawyers in malpractice cases.
The Academy of Florida Trial Lawyers launched a counterattack, which its leaders say was intended to force the doctors to drop their initiative. The academy proposed ballot initiatives to require public disclosure of medical errors and to permanently revoke the medical license of any doctor found to have committed malpractice three times.
Hospital, business and insurance groups tried unsuccessfully to convince the doctors to drop their initiative in exchange for getting the plaintiffs lawyers to drop their measures. All three amendments ended up passing overwhelmingly. Since then, there have been pitched fights in the courts and the Legislature over all three measures.
The language of Amendment 7 gives “patients the right to review, upon request, records of health care facilities’ or providers’ adverse medical incidents, including those which could cause injury or death.” It said patients’ identities should not be disclosed.
But the implementing law, SB 938, which was strongly pushed by the Florida Hospital Association, makes records, including hospital peer review records, exempt from public disclosure and, therefore, exempt from discovery in civil court cases.
Unlike the amendment, the statute sets relatively narrow limits on who may obtain hospital records on medical errors. It defines the patient who may obtain such records as “an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.”
Plaintiffs Karen Beane and Gary Beane challenged that statute in their Martin Circuit Court malpractice suit.
The Beanes seek hospital records in their case against Dr. Robert Pare, Treasure Coast OB/GYN Associates and Martin Memorial Medical Center. They allege that Dr. Pare used an improper medication for the inducement of labor and delivery. As a result, the suit alleges, Karen Beane suffered a uterine rupture, was forced to undergo a complete abdominal hysterectomy and was left unable to bear children.
Judge Makemson said the implementing law for Amendment 7 violates the state constitution because it defies the will of the voters. A written order containing the judge’s ruling has yet to be entered in the case.
Babbitt, who represents the Beanes, said the ruling makes clear that the Legislature caved to pressure from the medical and hospital lobbies when it passed the law this spring to implement Amendment 7.
In the 3rd Judicial Circuit malpractice case, Douglas consolidated three discovery cases against Lake City Medical Center, Pendrak Surgical Group, P.A., and Dr. Robert Pendrak. He ruled that the law implementing Amendment 7 is unconstitutional because the amendment clearly states that patients have the right to access any records made or received during the course of business by a health care facility or provider relating to any adverse medical incident.
The language of Amendment 7 states that “the phrase ‘adverse medical incident’ means medical negligence, intentional misconduct and any other act, neglect or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to … or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.”
SETTLEMENTS AND PEER REVIEW
Amendment 7 opens up a new area of attempted discovery. The disclosure of hospital records on medical errors undoubtedly would have a major impact of the outcome of malpractice litigation, both plaintiff and defense lawyers say.
Plaintiff lawyers are seeking to use the opportunity broadly. Among other things, they hope to pin down hospitals’ corporate negligence in failing to crack down on doctors with chronic quality problems.
“If you find hospital records saying the doctor screwed up and that this is the fourth time he’s done it, that would lead to early resolution of disputes,” Connolly said. It would be hard for the hospital to deny liability when it had previously sanctioned the doctor, he noted.
In his cases, Connolly is filing independent actions under Amendment 7 — outside the malpractice cases — seeking to force hospitals to disclose medical error and peer review records. He said he’s filing these independent actions to sidestep defense claims that the records are privileged.
“There’s no question that the availability of material like this in a suit has a dramatic impact on the settlement dynamic,” said June Hoffman, a shareholder at Fowler White Burnett in Miami, which represents health care providers.
But lawyers who represent hospitals argue that the most significant impact of having to disclose these sensitive hospital records is that it would jeopardize the traditional hospital peer review system.
Hospitals and doctors who participate in peer review long have been granted confidentiality to enable them to investigate possible medical errors and take corrective action against medical staff. Without that protection from disclosure and discovery in malpractice cases, hospital lawyers say, doctors simply won’t participate.
That’s already happening as a result of Amendment 7, Reynolds said. “Peer review protections came about so you gave doctors a chance to speak confidentially about peers who were not performing well,” she said. “Now doctors are reluctant, if not absolutely loath, to participate. They feel they’ve been stripped of incentives and protections to participate.”
She said doctors won’t feel reassured until the Supreme Court rules on the constitutionality of the implementing bill, which exempts peer review records from discovery.
But Sheldon Schlesinger, a prominent malpractice plaintiffs lawyer in Fort Lauderdale, scoffed at that argument, saying hospital peer review has proven to be a failure in protecting the public from bad medicine.
“There was an Iron Curtain hiding vital information that existed until [Amendment 7] passed,” he said. “The hospitals want to maintain the same attitude they’ve always had — see no evil, hear no evil, speak no evil.”
To Rep. Simmons, the battle over Amendment 7 illustrates the need to make it harder to amend the state constitution. “This is a uniquely bitter war between the doctors and the lawyers,” Rep. Simmons said. “And we, the people of Florida, are their stomping grounds.”
Now, both the doctors and the plaintiff lawyers probably feel “a lot of morning-after remorse,” said Gelber, a lawyer and former federal prosecutor who sits on the House Judiciary Committee. “It was a food fight that should not have been fought in Florida’s constitution.”

The Irish Wakeup Call

It’s been more than three years now since America’s Roman Catholic bishops met in Dallas and issued their charter concerning the protection of young people from clergy sexual abuse. No one I know, least of all the victims, think that that meeting stopped the horrors and coverups of the crisis in the Catholic Church. However, at least it made everyone aware of the nature and scope of the crisis. That’s why I find it hard to fathom what the Catholic Church leaders in Ireland have been doing the last three years since Dallas. Most recently the Ferns inquiry report severely criticized the Irish Catholic Church for sex abuse scandal and its ensuing and ongoing coverup. The Irish government has finally stepped in and pledged to do what the Church is unwilling or incapable of doing in this mess. Just yesterday, Bishop Eamonn Walsh, Apostolic Administrator of the Ferns diocese confirmed that five priests with pending abuse allegations are still in active ministry! If the Catholic Church in Ireland does not move quickly and attempt to rectify the situation it will lose all of its already diminishing credibility and moral authority.

SNAP Asks Cardinal Rigali To Support Sex Abuse Law

The group Survivors Network of Those Abused by Priests (SNAP) has asked Philadelphia Archbishop Justin Cardinal Rigali to support legal changes and punish church officials who had a role in the local church’s sexual misconduct and abuse of minors. The 4 page letter was delivered at a sidewalk protest outside the archdiocesan headquarters in Center City. The SNAP letter asked that Rigali “publicly endorse and lobby for” a legal window granting adult victims of clergy abuse a year to file civil suits, in spite of the expired statute of limitations. In response to the letter and protest, Archdiocesan officials issued a statement pledging to take any necessary steps to protect young people. It is still too early to tell if the church’s response is more of an empty public relations or a truly meaningful step toward reform and healing. The Archdiocese of Philadelphia has been rocked by turmoil ever since a grand jury report was made public detailing the nature and scope of the clergy abuse scandal in Philadelphia.

New Study Reveals Financial Conflict of Interest in Drug Prescription Guidelines

According to an article published in the Wall St. Journal, researchers and physicians who write the rules on prescribing drugs have extensive financial interest in the pharmaceutical industry. The study undertaken by Nature revealed that more than 1/3 of the authors writing the prescription guidelines had substantial links to the relevant drug companies. In one case, every panel member charged with writing such guidelines had been paid by the company manufacturing the drug. Public health officials say the links with pharmaceutical links are more worrying than the financial conflicts known to plague clinical trials and reviews because the guidelines have such a direct effect on the drugs that doctors prescribe. This conflict of interest is a huge public health hazard and once again demonstrates the industry’s need to be monitored by an independent agency whose only compelling interest is the welfare of the public.

Influential Police Research Group Urges Limits on Taser Use

According to an article published on October 19, 2005 in The NY Times, the influential Police Executive Research Forum urged restrictions on taser use in the wake of 140 deaths of people being taken into custody. The group suggested that officers be allowed to use the stun guns only on people who are aggressively resisting arrest, not just refusing to follow orders. The group also recommened that officers pause and evaluate suspects after shocking them once, instead of repeatedly shocking someone without a break. Sales of the guns to police departments soared in 2003 and 2004, and more than 7,000 police departments now use them. But sales have plunged this year, as questions about the safety of the guns have increased. Taser shocks can cause a potentially dangerous condition called acidosis in which the blood becomes too acidic. Shares in Taser International, the company makes the weapons, have fallen 80% this year, and Taser is being investigated by the Securities and Exchange Commission over claims it made about the safety of the guns, as well as the way it disclosed an order it received last year.

Taser International Changes Its Marketing Language in Wake of Criticisms and Probes

This story ran on September 28, 2005 in Forbes Magazine:
Taser International Inc. has voluntarily changed some of its broad safety claims and limited its use of the word “non-lethal” in an effort to appease Arizona officials concerned about possibly misleading marketing, officials said Wednesday.
The move by the nation’s largest maker of stun guns comes as the Securities and Exchange Commission investigates the company and as the Arizona Attorney General’s Office conducts its own inquiry into safety claims.
On Tuesday, Taser said the SEC had stepped up an informal inquiry and was conducting an expanded official investigation of claims Taser has made about safety studies; an end-of-year sale analysts have questioned because it appeared to inflate sales to meet annual projections; and the possibility that outsiders acquired internal company information to manipulate the stock price.
In January, Arizona Attorney General Terry Goddard said his office was probing claims Taser has made about safety studies on its products.
Taser President Tom Smith said company officials met with the Attorney General’s Office several times since January and have made changes to the way they characterize the weapon’s safety to consumers.
According to Taser and the Attorney General’s Office, the stun gun maker submitted a list of language changes the company has already made, including an 18-point “product warning.”
Among the changes, Taser explains that it uses the term non-lethal as defined by the Department of Defense – which doesn’t mean the weapon can’t cause death, but that it’s not intended to be fatal.
Other changes include substituting the phrase “leave no lasting after effects” to “are more effective and safer than other use-of-force options.”
Taser began marketing police stun guns in 1998 as a way to subdue combative people in high-risk situations. Now, more than 8,000 law enforcement agencies and military installations use them worldwide.
But critics say the stun guns have been used too liberally by police and have contributed to scores of deaths. Amnesty International has compiled a list of more than 100 people the group says have died after being shocked in scuffles with lawmen.
Taser maintains that no deaths have been directly caused by the weapon alone.

Torture by Taser

This week a committee of Florida legislators is discussing police use of Taser guns manufactured by Taser International. The weapon has been marketed by its manufacturer as a non-lethal way to subdue people. However, there is mounting evidence to the contrary. We represent a young victim of the lethal weapon and plan to file suit on behalf of his family this week. Please read the following article published in the Fort Worth Weekly:
by Peter Gorman, Fort Worth Weekly
June 24th, 2005
Robert Guerrero may have died because he wouldn’t come out of a closet.

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