Friday, January 28, 2011

No, No. Take Your Time. I'll Just Lie Here And Suffer.

It started at noon on Saturday.  Just a minor little niggling something in the abdomen, right lower quadrant. 

By 2:30 p.m., the niggling had progressed to actual discomfort.  Reminded me of the punchline to a joke ol' Festus told in a Gunsmoke episode: "Gas is what she had.  What she had was gas."  (You have to add the whiny drawl to make it humorous.)

At 4:30 p.m. I called 911 for an ambulance.  Not only could I not drive, I could barely stand.  My skin had taken on a strange hue, somewhere between green and yellow.  And I was alternating between being soaked in sweat and shivering with chills.  Despite all this, when the EMTs arrived and took my vitals, blood pressure and temperature were both normal.  So, it was looking more like kidney stones than appendicitis.

That should have been good news.  And mentally, it was.  But physically....

Physically, it was made all the worse because I knew (having previous experience with ambulance rides and post-falling on ice pain) that somewhere on that vehicle was a magic elixir that would not only eliminate the pain within minutes, but make me feel really, really, REALLY good in the process.  But the EMTs could not administer that wonder drug, because the doctors at the hospital had to see exactly what KIND of pain I was in to arrive at a diagnosis.

Oh, joy.

The ride to the hospital was a blur of motor and two-way radio noises, back-up alarm beeping, and voices: one male, one female, with the female driving.  For some reason, keeping my eyes closed seemed to keep the worst of the pain at bay.  Wonder if anyone has done a study on that?

At the hospital, I stumbled from the stretcher onto the ER bed, thanked the EMTs, and waited.

And waited.

And waited.

During my wait, I learned all about the problems that brought the woman to my right into the ER.  Also was privy to some interdepartmental pissiness regarding the refusal of one department to send personnel to the ER to insert IV lines.  Too bad the woman needed that line to administer medicine; the IV was just being put in by the time I left, three hours later.

Then there was the woman on my left.  She treated us all to a real ER moment, complete with crash cart.  Her little intra-hospital drama had to do with whether she would get a room in the ICU or be shuffled off to the step-down unit.  Fortunately for her, the doctor in charge fought and got her an ICU room.

With all this drama going on, my little problem with pain seemed insignificant.  So, I writhed my way through the first hour, until the doctor showed up and ordered x-rays.  After x-rays, I contorted my way through another hour, when the doctor showed up and informed me that I had "a" kidney stone.  With a diagnosis arrived at, I had to wait a mere 30  minutes for the wonderful, pain-killing elixir to be administered.  By the time I had a CT scan taken 20 minutes later, the pain was almost gone.  And within half an hour, I was on the way home.

After this experience, I have decided that having a kidney stone is like having a cold: inconsequential, until you are the one suffering through it.

Thursday, January 27, 2011

State of the Union: Time to Throw Down the Gauntlet

Maybe it's the Irish in me, but when someone poses a threat to someone I care for or something I believe in, I tend to come out swinging.  Kind of the Celtic equivalent of "You lookin' at me, punk?" or "Go ahead.  Make my day."

Anyone who tuned into the State of the Union address hoping that President Barack Obama would issue such a challenge to those intent on sabotaging his leadership was, to put it mildly, disappointed.  There were no angry words.  There was no fist pounding.  Everything about his delivery was very . . . measured.

Now, calmness in a president is a good thing, for example, when deciding whether go to war.  But, sometimes, a calculated display of  anger is needed to get a point across.  President Obama could have used a couple of those as a signal to his supporters that he is willing to fight for the ideals alluded to in his speech, and as a warning to his opponents that he will show them no quarter in the coming battles.

President Obama should know by now that Congress is full of representatives and senators who are eager to gut Social Security, Medicare, and Medicaid; who will resist any effort to simplify the tax code, if that means corporations and wealthy individuals will lose tax breaks; and who started popping nitroglycerin pills the minute he mentioned eliminating "the billions in taxpayer dollars we currently give to oil companies."  

These same individuals will use the President's call to simplify burdensome and contradictory federal regulations as an excuse to eliminate health, safety, environmental, and other regulations that their campaign donors find unprofitable; counter any effort to eliminate the Bush tax cuts for the wealthiest two percent of Americans, and stonewall any effort to deal sensibly with the immigration issue. 

When President Obama discussed rebuilding America's crumbling infrastructure, developing high-speed rail lines, and extending the reach of wireless to 98 percent of the country, one only had to look at the face of Speaker John Boehner to know that those ideas are going to die a quick death.  Boehner's face continued to display stoney disagreement when the President rejected repeal of the just-passed health care law and said "let's fix what needs fixing and move forward."

Earmarks were the only issue that the President bothered to take a stand on, stating,"If a bill comes to  my desk with earmarks inside, I will veto it."  This promise seemed to elicit loud applause from all the newly elected Tea Party members; given the altered seating arrangement in the chamber, however, it was difficult to determine how many of the veteran congressional members cheered the smashing of their pork barrels.

And so it went.  A very inspiring speech delivered in an uninspiring manner to a tepid audience.  It was as though everyone in the chamber was finally admitting they were merely participants in a grand theatrical production that had gone on for so long, they could no longer muster enthusiasm for the performance.  And the lead actor?  The lead actor had been replaced by an understudy.

The Barack Obama who delivered this year's State of the Union address in no way even approximates the man who rallied crowds on the campaign trail.  That man was a loss leader for the old bait and switch trick.  What we got instead of "Yes We Can" is "Maybe."

Maybe we can have a decent health care plan for all Americans if the insurance companies, pharmaceutical industry, and members of Congress beholden to them let us.

Maybe we can have financial reform if the banks and brokerage houses let us.

Maybe we can have an equitable tax system if the richest two percent and their pawns on congressional committees let us.

The President wants to be the Great Conciliator.  And that is admirable.  And when you are dealing with reasonable people, quite desirable.  But when you are dealing with self-interested, power hungry bullies, at some point you just have to start knocking heads together and taking names.

Those who elected you, Mr. President, are waiting.

Wednesday, January 19, 2011

Clarity In The Law Is A Good Thing

During my time as a safety and health attorney, I often pitied the poor fool  who started a business and had to learn how to comply with the thousands of state and federal regulations applicable to that business.  My colleagues and I were often the teachers in that learning process, and we had a front row seat to the frustration, anger, and bewilderment that business owners experienced when subjected to inconsistent regulation by the same or different agencies.  If President Barack Obama's order for a government-wide review of existing rules brings clarity to the system currently in place, that action should be lauded as long overdue.

In Toward a 21st-Century Regulatory System (Wall Street Journal 1/18/11), Obama states: "This order requires that federal agencies ensure that regulations protect our safety, health and environment while promoting economic growth."  Critics complain that the goal of protecting safety, health, and the environment is inconsistent with the goal of promoting economic growth.  The critics are wrong.

Under the current system, the largest obstacle to economic growth is uncertainty.  Uncertainty leads to protracted litigation.  Litigation leads to a waste of time and resources that could be more profitably used in the business.  Waste results in slower growth of the individual company and, by extension, the economy as a whole.

In the regulatory arena, there are two general types of litigation.  The first is cut and dried: was there a violation, and if there was, what is the fine or other punishment.  This type of litigation is possible only when everything is certain: the agency that has jurisdiction over the business, the regulation(s) to be cited, the specific requirements of the regulation(s).

If any of those three elements is ambiguous in any way, you get into the second type: appellate litigation to determine the intent of Congress in passing a law, or the correctness of an agency's interpretation of the law or a regulation, or which agency's regulations apply to the business at issue.  While this type of litigation usually starts at the administrative law judge level, it can proceed up to the United States Circuit Court of Appeals level, and eventually to the Supreme Court.

 The vast majority of business owners I represented over the years viewed litigation as a waste of time.  Consequently, they tried to understand and comply with regulations and worked hard to pass inspections.  They also really cared about their workers' safety.  Of course, the events at the Upper Big Branch Mine demonstrate that not all owners fall into this category.  For the most part, however, companies would rather just comply with the law than get involved in legal wranglings with agency personnel and lawyers.

But regulations are not always the epitome of clarity.  A good portion of any health and safety or environmental lawyer's time is spent trying to discern the intent of Congress and whether an agency's regulations fulfill that intent or overstep the agency's bounds.  Another good portion is spent examining regulatory requirements and determining the actions or procedures necessary to be in compliance.

If President Obama's regulatory weed pulling helps companies more readily understand and comply with safety and environmental laws, his order promises to eradicate a powerful disincentive to entrepreneurship.  This alone will go far in promoting economic growth.

Tuesday, January 18, 2011

If We Want A Different Result, We Need To Change The Name

The buzz around the country, at least in pundit land, is whether a new civility will be adopted in the attempt to defeat the law that assures health care insurance for all Americans.  My prediction is that civility will give way to animosity unless the term "Obamacare" is dropped in favor of a new name, let's say "Health Care For All Americans Law."

"Obamacare" makes the fight political.  It pits all those who want to torpedo President Obama's time in office against those who would like to see him hang around awhile.  It lines up Republicans against Democrats.  In other words, it becomes the football in another Capitol Hill Super Bowl.

But that is not what the Health Care For All Americans Law is all about.

Remember in the run up to the 2008 elections, when all candidates in both parties were besieged by regular Joe The Plumber types who were losing their houses, savings, jobs, loved ones, and lives because they could not get health insurance and, hence, medical care?  Or how about the elderly who told stories about choosing between food and medicine?  The ill whose pre-existing conditions left them out in the cold, even though they actually had insurance?

These are the people for whom the Health Care For All Americans Law was passed.  Not President Obama.  Like all U.S. Presidents, senators, and representatives, he's pretty much set for life as far as health care goes.

Perhaps the new civility on Capitol Hill will last longer if Congress ditches the "Obamacare" rhetoric and keeps its focus on the intended recipients of the law's provisions.

Monday, January 17, 2011

To Boldly Go

The original Star Trek television series aired during the 1960's, when Malcolm X and Martin Luther King, Jr., were struggling to create a society in which character mattered more than skin color.  In that turbulent time of riots, and fires, and anger; mass rallies and peaceful marches, Star Trek presented a future Earth in which color no longer matters and race is not a cause for hate.  We have not yet reached the promised land described by Dr. King or portrayed in that long ago show, but we may be closer now than we have ever been.

The Sixties was a scary time for the little white kid I was at the time.  Too many evenings, Walter Cronkite presided over newscasts which featured bloody fighting in streets, lines of club wielding cops, molotov cocktail fires, and mobilized National Guard troops.  I knew enough about the history of slavery to recognize the ultimate source of the anger.  But given the world created for me by my parents, I did not actually understand that anger.

Prejudice of any kind had no place in my parents' house when I was growing up.  The individual is who mattered.  All people were worthy of respect, at least until their actions proved otherwise.  The bar of soap was at the ready for any child who used an epithet, whether racial, religious, or sexual in nature.

My mother was impervious to the scorn or disapproval of neighbors, co-workers, or Church officials.  She had black friends and co-workers visit our home as readily as she had whites; she permitted her son to attend a friend's bar mitzvah at a time when such ecumenical actions were frowned upon by the Church; she forbade the use of "queer" and taught against following a crowd's prejudice based upon sexual orientation.

Dad was less vocal than Mom, but one story he told from his own pre-school days demonstrates that tolerance is passed from parent to child.  The farm community where Dad grew up was frequented by various tradesmen traveling by horse and wagon.  One such peddler stopped and asked permission to stay overnight at my grandfather's farm.  The man's odd dress, hair, and hat intrigued Dad, and the prayer he said in a different language before dinner prompted Dad to question my grandmother about it all.  Her simple explanation was that the peddler was Jewish and Jewish people just do things a little differently than what Dad was used to.

On this day honoring Dr. King, we need to remember my grandmother's lesson: differences do not make people right or wrong, good or bad; they just make them different.  The sooner we all learn that lesson and pass it on to our children, the closer we will get to the society of tolerance depicted in Star Trek.

Sunday, January 16, 2011

And They Call This Train Wreck Art?

Don't you love it when the people with more money than sense are the ones who get to decide what constitutes "art"?  You know the types I'm talking about: cocktail dinner set, lavish dinner parties, traipsing off to far away centers of "culture" to get their fix, looking down their noses at the unwashed masses.  All places have such a clique, and ours recently polluted the entrance to a very beautiful arts and culture center with a mass of rusted metal that is a cross between the twisted and tilted remains of the Twin Towers and a 727 flown head first into the ground.

 Of course, since the hunk of junk was welded together by a supposedly famous artist, the clique determined it worthy of both the million dollar price tag and the designation as art.  Any steelworker, blind drunk, could piece together a more visually pleasing structure than the oxidizing monstrosity named "Hallelujah" by its creator.  No doubt the name refers to the welder's joy at conning the deluded clique into buying the piece, and not any heavenly or joyous aspect of the atrocity itself.

This is not to say that all abstract art is devoid of merit.  Some artists are capable of using the colors and textures of Nature in a manner that is pleasing to the eye and soul, even though the form is not something that would be found in a Norman Rockwell painting.  But when a painting or sculpture is deemed to possess artistic merit merely because a certain name is scrawled in the corner, well, it just calls to mind an interview of Pablo Picasso.

The interviewer was in Picasso's studio asking questions while the painter readied a huge blank canvas on the wall.  Attached to the ceiling was a rolling ladder.  Picasso dipped a large brush, one that a house painter would use, in a can of paint; climbed the ladder, set the brush against the canvas, and pushed off from the adjacent wall.  The resulting painting consisted of a single wavy line with a squiggle at the end.  As Picasso signed his work of art, he chuckled about the large sum of money he had just made with 30 seconds worth of work.

Picasso, like P.T. Barnum, knew that there is a fool born every minute.  Too bad such fools wind up on committees to acquire community sculptures.

Tuesday, January 11, 2011

The United States Mental Health Care System Is Insane

A popular saying these days goes as follows: The definition of insanity is doing the same thing over and over again, and expecting a different result.  In the wake of the Gabby Giffords assassination attempt, one can only conclude that our society as a whole is engaging in a form of insanity, by ignoring the need to provide institutionalized treatment for the mentally ill.

Jared Loughner is just the latest in a long line of mentally ill individuals whose names have been splashed across the headlines after their dangerous propensities came to fruition.

In 1980, Mark Chapman killed musician John Lennon; after changing his plea from not guilty by reason of insanity to guilty, he was sentenced to 20 years to life in prison.  In 1981, John Hinckley, Jr., left President Ronald Reagan and three other individuals injured in a failed assassination attempt carried out to impress actress Jodie Foster; he was found not guilty by reason of insanity and institutionalized in a psychiatric facility.  In 1996, John E. duPont, a paranoid schizophrenic and heir to the duPont fortune, shot and killed Olympic wrestler David Schultz; he was found guilty but mentally ill, and sentenced to 20 to 40 years in prison.

More recently, in 2007, Seung-Hui Cho, a student at Virginia Tech,  massacred five faculty members and 27 students, and injured numerous others, before committing suicide.  Cho had been declared mentally ill by a Virginia special justice and ordered to seek outpatient treatment.

These examples are just the more famous, or infamous, examples of mentally ill people who needed help, failed to get it, and went on to wreak havoc.  Anyone with a mentally ill family member, however, knows that lives are turned upside down every day in our society, because individuals who should be hospitalized and treated cannot receive that type of specialized help.

They cannot receive that type of help because a very good idea--deinstitutionalization--was corrupted by Reagan-era cuts in federal funding for community-based mental health programs, and states hell bent on cutting budgets. 

By the 1970's, the courts had concluded that treatment for the mentally ill and disabled should be provided in the least restrictive environment appropriate for the given individual.  These decisions were a reaction to the "snake pit" conditions that existed in many state mental hospitals at that time, and the lack of targeted treatment plans.  No longer could an individual with epilepsy or Downs Syndrome be locked away with the delusional or dangerously psychotic.  Nor could individuals be stripped of all rights merely because their illnesses involved mental functioning.  If treatment could be provided in a non-institutional setting, for example in a group home or on a medical out-patient basis, then that was the type of treatment required.

The courts' decisions went a long way in dragging society's treatment of the mentally ill and disabled out of the Dark Ages and into the Enlightenment. Had the states fulfilled the mandates set forth by the court decisions, each state would have a multi-tiered mental health system that would include well-maintained and adequately staffed in-patient mental hospitals, out-patient services, group homes, community based services, and in-home treatment.  Instead, many states read the courts' criticism of the atrocious conditions in state mental hospitals as permission to shutter those facilities and turn their occupants onto the streets.

As long as we as a society are willing to tolerate the occasional Gabby Giffords assassination attempt and related deaths, as long as we are content to have our jails and prisons serve as the hospitals for the mentally ill in our midst, as long as we accept death-by-cop as the treatment of choice for our deluded or dangerously psychotic citizens, we will continue to experience the insanity that is the current mental health system in the United States.

Nothing will change, and we will be no safer, until we demand that our taxes be used to build and maintain quality mental health institutions  and related services.

Friday, January 7, 2011

My Sister Is Dead, But The Games That Killed Her Continue In Washington

One year ago, my sister, Andrea, died.  The coroner said her heart gave out because she was overweight.  The doctor said her heart gave out because of a prescription medicine "misadventure."  But we who knew her best know she died because politicians, not statesmen, have occupied the halls of congress for too, too long.  Her heart broke, not from any physical reason, but from the rampant callousness with which the power hungry in D.C. and money mongers everywhere view and treat people like my sister, Andrea.  She did what they wanted her to do: she gave up and died.

She gave up hoping that Congress would ever have the will or wisdom to protect people like her, who at age 62, lost her job because of the financial fiascoes that occurred during the "smaller government" no-regulation years of the George W. Bush administration.  If she could find a job, she saw herself working well past a normal retirement age to replace the savings lost in the stock market collapse caused by the multiple Wall Street scandals.

She gave up hoping that she would find a job like the one she lost as a legal secretary in one of the largest law firms in Philadelphia, when that firm's major client, AIG, became another of the financial giants that was deemed "too big to fail." While AIG went on to receive $182 billion in federal financial aid and its chief officers retained their multi-million dollar homes and million dollar bonuses continued to be doled out, Andy and numerous others laid off as a result of AIG's bad choices were deemed too little to matter and left to the uncertain mercies of the unemployment compensation system.

She gave up hoping that anyone, anywhere had the ability to help her out of the morass of incompetence and indifference through which she had to slog as she endeavored to work with Wells Fargo, the holder of her home mortgage, to keep the wolf that was foreclosure away from her door.  As the following quotes from her blog make clear, each new phone call to Wells Fargo revealed some new paperwork snafu, some new hoop through which she must jump:

Thursday, August 6, 2009 ... Are you ready for my latest adventure with my mortgage company? Last night at about 8:45 P.M., I had a call from ... Wells Fargo. He tells me ... I was denied because I had not filed for a refinancing first. So, I said to him ... I did not make an application for refinancing because Wells Fargo told me I could not do so as I am unemployed. I was advised to send a hardship letter. I sent the letter. Wells Fargo answered me. I answered Wells Fargo. I spoke to a young lady a week or so ago who assured me that Wells Fargo had everything it needed ... He put me on hold. He came back and told me he would have to check with someone to see if they can re-process my case as I am unemployed and there is no point in filing for a re-finance since I am unemployed. He said he will call me tonight to tell me if they can go on from where they are now and just re-process me or if I have to start again from square one. Guess which one I think it will be....

Here I am on August 20, 2009. I have been trying since February 10, 2009 to get Wells Fargo to make changes to my mortgage payment amount. I have been laid off since February. I could not do a re-finance, but I did submit a hardship letter ... Last night, I had a call that advised that I had to submit a hardship letter and that I had to fax it (not e-mail) and that Wells Fargo could not proceed with my claim as there was no record of it on the system ... I have managed to pay my mortage thus far. I am not in default. I don't want to be in default ... I am over the side of a cliff and I am hanging on with no fingernails and there is no place to put my feet and there are jagged rocks below. My arm is getting tired....

 Andy held on as long as she could, but the struggle eventually took its toll:
Saturday, October 3, 2009 ... [T]he past few weeks have almost destroyed any faith I have ever had in anything. I do not like this feeling. I guess I cannot any longer say that I love my country. I do love the idea of my country. I know that I am better off in this country than I would be in most other countries, but that is little consolation to me. I am probably going to lose my home. I am probably going to lose my health care. There is nothing I can do about this. Through all of this, I have had to watch my elected officials play games on a daily basis. The members of the present House and Senate are, largely, a bunch of thieves and crooks and, in some cases, it appears to me, mentally unbalanced.
 When Andy died a few months later, the political gamesmanship that had so disheartened her was just starting to be ratcheted up in anticipation of the 2010 elections.  By the time we spread her ashes over the Atlantic Ocean in October, pollsters were calling the odds like bookies taking wagers on the next game, candidates were trash talking one another like players on a basketball court, and those with financial stakes in the outcome were sinking money into campaigns like advertisers at the Super Bowl.

And that's the real reason why the political parties occupying our congress are incapable of governing with the moral fortitude of a George Washington, the intelligence of a Thomas Jefferson, or the wisdom of a Benjamin Franklin.  They and all their minions view campaigns as huge, ongoing pep rallies, and governing as a big game, with nothing more at stake than the numbers on a scoreboard and dollars in the winners' pockets.

Neither party is concerned with fulfilling the mandate set forth for them in the Preamble to the Constitution, to "promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."  Legislating for them is not a matter of statesmanship, but of winning and losing, and grinding the losing party's face in the mud.  Passing a law is no longer a matter of right or wrong, wisdom or folly, conscience or sin.  It's a matter of how many people are on your team, how many men or women you can put on the field, whether you can change the rules to favor your side, if you can win in overtime by replacing a few key players.
America deserves better than this.  My sister deserved better than this.