The MacNeil/Lehrer NewsHour

MS. HUNTER-GAULT: Good evening. I'm Charlayne Hunter-Gault in New York.

MR. LEHRER: And I'm Jim Lehrer in Washington. After the summary of the news this Tuesday, we have another health care reform report and debate. Medical malpractice is the subject. Then come from Florida the story of alcoholism among the elderly and a commencement season conversation with Benjamin Barber about the state of education in America. NEWS SUMMARY

MR. LEHRER: President Clinton campaigned today for his economic plan among congressional Democrats. He held a series of meetings with House members at the White House this morning. Conservative Democrats have argued for more spending cuts and fewer taxes. Their proposal to put spending caps on entitlement programs such as Medicare and Medicaid has been resisted by party liberals and by the President. After today's meetings, members were optimistic a compromise would be reached, but they said the American people still needed to be sold on the plan.

REP. RICHARD GEPHARDT, Majority Leader: All of us have to do a good job of selling the package, and, you know, Harry Truman once said, "Leadership is getting people to do things they don't really want to do. It's easy to lead as President Reagan did in 1981 by giving people tax cuts and raising defense spending to be spent in people's districts. It's a very different thing to finally get, be responsible in this country and start reducing a deficit that's eating us alive.

REP. BILL RICHARDSON, [D] New Mexico: It's going to be a very close vote, and the President is going to have to invest a lot of prestige in this vote, a lot of personal visits. I believe he's going to do it. I believe that we're gathering momentum. I believe that we'll get a compromise on the tax issue. I believe that after all is said and done, the Democratic Caucus in the House will strongly support the President.

MR. LEHRER: The House is expected to vote on the plan Thursday. Consumer confidence in the nation's economy slid to its lowest point since before the November election according to a report out today. It was released by a private business research group known as the Conference Board. It said consumers were particularly concerned about a lack of jobs. Charlayne.

MS. HUNTER-GAULT: The White House travel office story took another turn today. The seven-member travel office staff was fired last week for alleged lax accounting procedures. This afternoon White House Spokesman George Stephanopoulos said five of them had not actually been fired but were on administrative leave pending a review. He said the five did not have responsibility for bank accounts and could possibly return to work. Responding to the question of whether the new action was tantamount to admitting it was a mistake to fire all seven employees, Stephanopoulos said, "Clearly we didn't handle this as we would have liked." Stephanopoulos also said chief of staff Mack McCarty was reviewing the White House handling of the matter, including the decision to publicize the FBI's criminal investigation of the travel office. At a photo session at the White House late this afternoon, the President was asked about his involvement.

PRESIDENT CLINTON: Ultimately, anything that happens in the White House is the responsibility of the President. Whenever you've asked me a question I've told you all I knew about it. All I knew was it was a plan to cut the size of the office, save tax dollars, save the press money. I talked to Mr. McClarty about it this morning. I said, you know, I keep reading this. I know that there's a feeling at least, based on what I've read, that someone in the White House may have done something that was inappropriate or that wasn't handled right or something. So I asked -- Mack and I talked about it today. He said he would spend some real time on it, look into it, try to ascertain exactly what happened, make a full report to me, which I think is the appropriate thing to do. I simply can't tell you that I know something I don't. I literally don't know anything other than what I've told you. He's looking into it now. He's worked on it quite a bit today, and he's going to make areport to me, and then we will take the appropriate steps, including saying whatever is appropriate to you.

MS. HUNTER-GAULT: White House officials acknowledged that staff contacts with the FBI had bypassed Attorney General Janet Reno. Reporters asked the attorney general about that after a speech in Washington.

ATTORNEY GENERAL JANET RENO: When I heard about the situation, I just called the White House and said that in the future it would be better if the contact was made through the attorney general or the deputy or the associates. All I want to do is establish lines of communication so that there are no questions about appearance of conflict or any problem or confusion such as might have been generated here.

MS. HUNTER-GAULT: Later in the day, the White House counsel issued a statement saying all future contacts with the FBI will go through Reno's office. Senate Republican Leader Bob Dole again criticized the decision to publicize the FBI investigation. House Speaker Tom Foley said Dole's comments sounded like partisan politics. Foley spoke outside the White House. Dole spoke on the Senate floor.

SEN. ROBERT DOLE, Minority Leader: I think it's truly disturbing that the FBI should be used in this manner by anybody, by anybody, and it reminds you, takes you back to Watergate. And as a Republican, I can tell you some of the repercussions of that and of that practice.

SEN. THOMAS FOLEY, Speaker of the House: Well, I'm not going to characterize Sen. Dole's motive. I have a longstanding admiration of his abilities as a legislator, but there's a certain amount of partisan politics that's played by everybody, I guess, at one time or another, and it sounds like Bob is in a little bit of his partisan mode right now.

MS. HUNTER-GAULT: Sen. Dole also called for a Senate investigation into the matter. Speaker Foley said that sounded political to him.

MR. LEHRER: The Bosnian safe haven plan drew criticism from several NATO members today. NATO defense ministers discussed the military implications of the plan at a meeting in Brussels, Belgium. We have a report narrated by Louise Bates of Worldwide Television News.

MS. BATES: The NATO allies have been split over how to deal with Bosnian Serb intransigence over their peace initiatives, and now some NATO members are critical of the latest plan, saying its provision for setting up safe areas for Muslim civilians rewards Serb aggression. Germany, Turkey, and Italy are among those complaining, saying the West must stick to the longer-term aim of restoring territory to Bosnia's Muslims. Italy, in particular, was angry it wasn't consulted about the new plan, especially as it's providing bases for U.S. and other planes enforcing the no-fly zone over Bosnia. But supporters of the plan say it's just another route to the same goal. The U.S. has warned that the new softer plan will not stop them taking stronger action later on. Pilots on the USS Roosevelt in the Adriatic already enforcing the no-fly zone are ready for anything.

REAR ADM. JAY L. JOHNSON, Commander, Adriatic Battle Group: Three quarters of the sorties we're flying now are training sorties. It's to keep us up on the step, up on the plateau, so that if we are tasked to do strike warfare, if we're tasked to do anything, we're ready to do it.

MS. BATES: That may well mean being ready to protect U.N. peacekeepers in the new safe areas.

MR. LEHRER: The former commander of NATO, retired U.S. Army General John Galvin, urged caution in using force against Bosnia today, but he told the House Armed Services Committee in Washington hebelieved there was a 50/50 chance the Serbs would spread the war beyond Bosnia into neighboring republics. He said it would take U.S. and allied ground forces and air forces to stop them.

MS. HUNTER-GAULT: The President of Guatemala today dissolved his country's congress and suspended its constitution. President Gorge Serrano said the actions were necessary because of a breakdown in law and order. Riots over soaring inflation swept the capital last week. The unrest prompted rumors that the military might attempt a coup. The President said he would rule by decree until a new constitution was drafted. A White House statement condemned Serrano's actions, calling them "illegitimate." Police in South Africa today arrested more than 70 leaders of the Pan African Congress, a militant black group. The pre-dawn operation drew criticism from the African National Congress, the main black opposition group. A spokesman said it could harm black/white power sharing talks now talking place. Meanwhile, 19 more people were killed in black township violence. Most of the victims were discovered in a township near Johannesburg. Forty-six people have died in the violence over the past four days.

MR. LEHRER: Chinese police cracked down on protesters in Tibet today, firing teargas to break up the crowds. It was the second straight day of protests in Lhasa, the capital, over Chinese rule of Tibet. There was no word on injuries from the violence. U.N. officials said today about 85 percent of eligible voters had cast ballots in Cambodia's elections. There are three more days to go in the six-day vote, the first free elections there in 21 years. So far, Khmer Rouge guerrillas have not carried out their threats to disrupt the vote with widespread violence. Final results are expected in about a week.

MS. HUNTER-GAULT: That's it for the News Summary. Just ahead on the NewsHour, medical malpractice reform, alcoholism and the elderly, and a commencement conversation. SERIES - OPTIONS FOR CHANGE - MALPRACTICE

MR. LEHRER: We begin tonight with another in our series on options for health care reform. Medical malpractice is the subject. President Clinton is expected to deal with malpractice insurance and malpractice lawsuits in his reform package due on the public table in the next few weeks. We look at the issue tonight from several perspectives, beginning with this backgrounder by medical correspondent Fred De Sam Lazaro.

MR. LAZARO: For well over two decades doctors from California to Maine have complained about the financial and emotional toll of malpractice insurance and litigation.

DR. PAMELA BENSEN, Emergency Doctor: You become an impaired physician the minute they serve the papers. Most lawsuits involve interrogatories and depositions where there's a lot of bad things said about you, and over a period of time you can believe -- you begin to believe some of those, those horrible things.

DR. GEORGE KOENIG, Neurosurgeon: I'm still paying a premium rate that is, when divided out, it turns out to be about a hundred dollars a day, seven days a week, three hundred and sixty-five days a year. Which means every day before I get my socks on in the morning, I owe a liability company a hundred dollars.

MR. LAZARO: In 1975, responding to pressure from doctors, California's legislature enacted the first malpractice reform in the nation. It placed limits on damage awards for a plaintiff's so- called "pain and suffering." Correspondent Spencer Michels prepared this report on California's program early in 1992.

SPENCER MICHELS: [NewsHour Report January 1992] The Medical Injury Compensation Reform Act, known as MICRA, put a cap of $250,000 on how much a patient could receive for pain and suffering as the result of a medical mistake, far less than the increasingly common multimillion dollar awards. No cap was put on awards for actual medical expenses or lost earning capacity. MICRA also established a fee schedule for attorneys that reduced how much they could make. Lawyers would have to accept limits on contingency fees considerably below their usual 40 percent. Trial lawyers repeatedly challenged the new law in the state's Supreme Court, but they were unsuccessful, and MICRA was finally declared constitutional. Doctors were relieved. Their malpractice rates dropped, and today are for many veteran practitioners actually lower than they were in 1975. Sixteen years after the passage of MICRA, trial attorneys are still enraged at California's malpractice reform.

GARY GWILLIAM, Malpractice Lawyer: We turned down 95 percent or more of the medical malpractice cases, and I think that's true of most the offices around the state. So I would say the great majority of victims of gross negligence of physicians go unrepresented.

DR. GEORGE KOENIG: I think that patients who have had legitimate claims are still finding their way to court, and they're still getting a presumably responsible settlement, so I don't think anyone has really been injured by MICRA at all.

MR. LAZARO: Two years ago, Maine took a different approach to malpractice reform called practice guidelines or parameters. It is essentially a system of checklists that guides doctors like Pamela Bensen in their approach to about two dozen clinical situations.

DR. PAMELA BENSEN, Emergency Doctor: One of our guidelines is an actual checklist. It is very similar to the kind of checklist a pilot would use before taking off from an airport.

MR. LAZARO: In theory, doctors who adhere to the guidelines are protected from malpractice lawsuits if the patient suffers a bad outcome.

DOCTOR: [examining patient] Any numbness or tingling in your fingers?

MR. LAZARO: One of the guidelines that often comes into play is when emergency rooms deal with car accident victims with possible neck injuries.

DR. PHELPS CARTER, Emergency Doctor: [examining patient] I'm going to take this off. I want you to stay nice and still. Do you have a headache?

PATIENT: No.

DR. PHELPS CARTER: All right. Does your neck hurt at all?

PATIENT: Yeah.

DR. PHELPS CARTER: It does hurt. Right in there? Okay. I'm going to get you over for some x-rays.

MR. LAZARO: On this night in Portland's main medical center, Dr. Phelps Carter's decision to order a neck x-ray was driven by both clinical judgment and, he says, the checklist of guidelines.

DR. PHELPS CARTER: This patient had an altered state of consciousness. He was a little confused after the accident. He did have some numbness. He did have some tingling. It was very important to immobilize his cervical spine and get appropriate x- rays, so he did fill the guideline criteria. Maine's guidelines on neck injuries are actually meant to help doctors avoid x-rays whenever possible. If a patient is lucid and does not complain of neck pain, according to the guidelines, an x-ray need not be ordered. That's in sharp contrast to past practice where they were done routinely, sometimes even before the doctor met the patient.

DR. PAMELA BENSEN: They took the x-ray while I was busy with someone else. The x-ray was there. I'd look at the x-ray. Then I would go and start examining the patient. There was an attitude that if we don't get that x-ray and something goes wrong, something that's unexpected, that we would be sued for it. Now we know that if we've done everything we're supposed to do, we've documented it on the chart, that we have that additional layer of insulation.

MR. LAZARO: Trial lawyers are especially irked that in court adherence to the guidelines is a near fool proof defense for doctors. If doctors do not follow the checklist, however, that evidence cannot be used by plaintiffs as a grounds for malpractice. Clarence Garmey is a trial lawyer in Portland.

TERRENCE GARMEY, Trial Lawyer: Let's call these standards what they are. They're not designed to improve patient care. They're designed to be minimum standards which, if met, serve as defenses but if violated don't exist.

MR. LAZARO: The case of David Gunn, himself an emergency nurse, appears to illustrate the trial lawyer's point. Gunn was rear-ended in a car accident in 1990, and even though the guidelines were not in effect at that time, he was treated just as they now suggest, i.e., his neck was not x-rayed.

DAVID GUNN: At that time I had had no neck pain, no neurological deficits, or anything like this at all. In January of this year, I began to develop spasms in my right shoulder and a day later lost use of my right arm.

MR. LAZARO: As trial lawyers see it, doctors would have been vulnerable to a lawsuit for failing to x-ray Gunn's neck right after he was injured, but had his accident occurred under Maine's current law, the doctors would be immune, since the guidelines do not call for x-rays. Although doctors say they are ordering fewer defensive procedures, there hasn't been any solid data so far on just how Maine's guidelines are working chiefly because they've only been in effect for about a year. There hasn't been a legal test to see how well they'll hold up in court, so malpractice premiums for doctors haven't yet come down. Analysts say absent those tangible results, any national malpractice reform will have to be a combination of different approaches. Besides practice guidelines and damage award caps, a third option being discussed by the Clinton administration is what's called "enterprise liability." Here, doctors would be freed of direct malpractice liability. Patients, instead, would sue the HMOs or managed care organizations that are expected to predominate under the likely managed competition health care system. Enterprise liability is the approach at the large California HMO, Kaiser. Proponents argue it frees doctors of lawsuit worries while spreading the cost of malpractice insurance across the entire health plan. Critics, however, fear the health plan could micro manage medical care and possibly fire doctors who are sued, even good doctors hit with frivolous suits. The Kaiser model offers yet another reform option. It requires patients to settle disputes through arbitration instead of the far more expensive court cases as a condition of health coverage. In the end, in choosing among the California, Maine, or Kaiser models, President Clinton could also decide on none of the above and toss malpractice reform to state legislatures.

MR. LEHRER: Now to our discussion. Roxanne Conlin is the president of the Association of Trial Lawyers of America. Ms. Conlin is a Des Moines, Iowa, lawyer. She joins us tonight from Ames, Iowa. Dr. Richard Corlin is a practicing physician in Santa Monica, California. He's an officer of the American Medical Association, former president of the California Medical Association. He joins us from Los Angeles. Kenneth Abraham is a professor of law at the University of Virginia at Charlottesville, the author of three books on insurance. Charles Inlander is president of the People's Medical Society, a national consumers organization with 85,000 members. He's the author of several books on consumers and medicine, including Your Medical Rights and Medicine on Trial. First an overview. Dr. Corlin, define the malpractice problem from your perspective.

DR. CORLIN: I think there are several things that are associated with the malpractice problem. One of them is the confusion between bad results or maloccurrence and substandard care, and that cuts both ways. There are patients who are the victim of substandard care who never at times file suits or get awards, and similarly, there are large numbers of cases where a bad result of good care results in a malpractice case. We know that a significant majority of the cases filed in some of the studies, as much as 85 percent, were the bad results of non-negligent care. That's one of the areas. Another very significant problem is the amount of defensive medicine practiced which is simply money which is wasted on unnecessary tests and x-rays, and finally is the fact that there are no real standards against which awards for pain and suffering are given. If you take a look at the awards for pain and suffering in similar injuries in malpractice cases versus another type of injury resulting in the same result, the awards are substantially higher in malpractice cases than if you fall off a ladder and get the same result. There's no justification for that, and because of that in California, we've put in place some caps to try to control the system which have worked very, very well.

MR. LEHRER: All right. Ms. Conlin, from the trial lawyer's point of view, define the problem.

MS. CONLIN: From the trial lawyer's point of view, which we perceive to be the point of view of the victim of medical negligence, there simply isn't any problem. We have been the victims of scapegoating, and our clients have been the victims of a massive campaign of propaganda that has apparently convinced a lot of people that, that people suing doctors is driving health care costs. In fact, if we gave doctors everything they want, which is apparently immunity for their wrongdoing, we would affect less than .6 percent of the cost of health care in this country to give up the constitutional right to jury trial, for .6 percent seems a very, very high price to pay. We're also concerned, frankly, that if we are not permitted on behalf of our clients to seek full compensation without a cap on damages, then we will end up with a higher cost of health care, because obviously tort lawsuits do have a deterrent effect. In terms of defensive medicine, the studies that have been done by doctors show that again that is not a problem with respect to liability. It's a problem because doctors now own the facilities that do tests, that do x-rays, that do laboratory studies of various kinds, and there is a very close connection that has been identified between whether the doctor has an economic self-interest in doing the test and whether or not the test is done.

MR. LEHRER: So --

MS. CONLIN: Let's look at the real problem.

MR. LEHRER: From your perspective then, the, those on the Clinton health reform task force, if they look at medical malpractice, it is not a problem that needs to be reformed. It shouldn't even be on the table, is that what you're suggesting?

MS. CONLIN: Yes. I am, I am saying that.

MR. LEHRER: Okay. Well, then like it or not, as you know, it is on the table.

MS. CONLIN: It's on the table.

MR. LEHRER: Right. And, Mr. Abraham, one of the things that Fred De Sam Lazaro, one of the proposals that is designed to fix the problem that Ms. Conlin says doesn't exist, nevertheless, is on the table, and it is called enterprise liability. And you are considered the father of that. Explain that.

MR. ABRAHAM: Well, I'm not sure I'm the father of it. Along with Paul Wyler of Harvard I've been developing the idea which originated in the '70s. It's an idea which is designed to align the law of governing liability with the way in which health care increasingly is delivered in this country. Health care is delivered by enterprises, by organizations, by institutions.

MR. LEHRER: Rather than by individuals.

MR. ABRAHAM: Well, individuals play a part in it, of course, but it's increasingly the organizations that make decisions about how care is delivered and care is delivered in an entire health care environment. The idea behind enterprise liability is to put responsibility for any injuries that result from treatment on the enterprise that's in the best position to manage the risk of injury from treatment, and that, we think, the hospital or in certain cases HMO's or other health care delivery organizations that are increasingly the focus of delivery.

MR. LEHRER: And the point of that is what? Is it to reduce costs? Is it to handle problems of the doctors? Who, who would be the beneficiaries of this new system?

MR. ABRAHAM: Well, we think the patients would be the beneficiaries. It ought to improve health care, because it would give the institution that's in a position to manage the various inputs into care an incentive to take the steps that are necessary to reduce treatment-related injuries. It ought to also reduce costs, because you'd have one defendant and, therefore, one attorney in any malpractice suit that didn't result in the costs of a legal defense or a high portion of the total cost of malpractice.

MR. LEHRER: Mr. Inlander, what do you think of that idea?

MR. INLANDER: Well, I don't like it at all, because I think it takes away the liability of the doctor. The doctor is the person who in what we're talking about does the damage. Now the doctor shouldn't be hidden from the patient. The enterprise, whatever it may be, protecting the doctor doesn't really protect the consumer in this. In fact, hospitals now in a sense run an enterprise type of liability for their staff. They don't fire bad doctors. They fire low volume doctors. They fire doctors who don't do the economic right thing, not necessarily the medical wrong thing, to help the patient. They don't take that, that stand. Furthermore, and I think this is very important for people to understand, is that there is no government agency that protects the consumer from bad medicine. The state medical licensing boards are essentially the foxes guarding the chicken coop. There's no federal agency that protects patients from doctors, and the court is essentially our only line in the sand. If it's a fear factor, if it's an intimidation factor, even if it's an economic factor, it's the only thing we have that keeps medicine in a sense behind a certain point of incompetence.

MR. LEHRER: And you also believe then it should stay exactly the same way it is?

MR. INLANDER: I think the tort system should stay the same. I'm willing to look at, at low dollar figure type of claims, like $150,000 type claims, because it's very hard to find a malpractice attorney to take those cases. I'm willing to look at some arbitration type of situation for that, however, arbitration has not been successful for the consumer so far in the places it's been tried, because the doctor comes walking in with his malpractice company's lawyers, his malpractice company paying for experts, and the consumer in arbitration has to pay everything out of pocket.

MR. LEHRER: Is that -- do you agree with his assessment there as to what the end has been thus far?

MR. ABRAHAM: No, the assessment is wrong. There is no reason to think that the threat of malpractice liability has a general effect on the behavior of individual doctors in terms of the quality of care. We spent in 1960 sixty million dollars on malpractice insurance. In 1992, we spent about $7 billion. That's an increase of 12,000 percent in 33 years. Inflation hasn't increased 12,000 percent. The quality of health care has improved, rather than declined. The threat of malpractice liability on individuals simply doesn't have the behavioral effects that Mr. Inlander thinks it does.

MR. LEHRER: Dr. Corlin, what do you think of enterprise liability?

DR. CORLIN: Well, in one of Mr. Abraham and Wyler's papers, they suggest that what they want is a pilot study in two hospitals to see if it works, and I think that's a good idea. It is an untried concept as far as medical malpractice is concerned, and one of the things we've learned is that there's a law of unintended consequences. We don't know if it's going to work, but it clearly is an untried concept, whereas, the California changes are a proven concept that works, reduces the costs of medical care, and is one of the -- medical malpractice insurance -- and is one of the reasons why the rate of increase of malpractice -- of medical costs -- excuse me, the rate of increase of medical costs in California has been below the national average for the past 25 years.

MR. LEHRER: So when you --

DR. CORLIN: I think what we need to say in response to the trial lawyer's comment is if we compare medicine in the United States, Canada, and England, we pay for it differently, but the quality of medicine practiced, the standards for the delivery of care are roughly comparable in all three countries. And if we are to assume that the tort system is operating well, then we have to take a look at the fact the malpractice premiums in the United States are eight times as high as they are in Canada and twenty-five times as high as they are in England, and we have to assume that the doctors in the United States are twenty-five times worse than they are in England.

MR. LEHRER: All right.

DR. CORLIN: The only alternative is that the tort system is fundamentally different and doesn't work well here, and I don't think anybody in their right mind is suggesting that the quality of doctors in this country is twenty-five times as bad as they are in England.

MR. LEHRER: Ms. Conlin, are you, are you and your fellow and sister trial lawyers suggesting such a thing?

MS. CONLIN: No. What we are suggesting, and what I must underline is, the good doctor had to correct himself when he started to tell your audience that the cost of medical care has been affected by MICRA, because, in fact, it has not been affected by MICRA. California, with MICRA in place for 18 years, has the second highest per capita medical cost in this country. Indeed --

DR. CORLIN: I think we need to correct something there. If you take a look during those 18 years at the rate of increase in health care costs in California, they are 2 percent per year below the rate of increase in medical care costs throughout the rest of the country.

MR. LEHRER: Doctor --

DR. CORLIN: That is a very substantial difference.

MR. LEHRER: Doctor, let her finish her point. Go ahead. Go ahead, Ms. Conlin.

MS. CONLIN: Thank you very much. You're just plain wrong, Doctor. And the fact is that only Massachusetts has higher medical costs than California, and in fact, while medical insurance premiums have increased at a lesser rate, the cost, that's not passed on to the consumer, and in fact, when you compare Canada and England to the United States, it's a false comparison. We do have a system of justice different than the system in those other countries.

MR. LEHRER: Let me ask you --

MS. CONLIN: And, in fact, we --

MR. LEHRER: Yeah, go ahead.

MS. CONLIN: -- we think that -- we think that that helps, not hinders. It helps good doctors, and it helps consumers.

MR. LEHRER: All right. The word though is that the Clinton plan is going to include enterprise liability, so Ms. Conlin ask, what do you think about that as, as a proposal?

MS. CONLIN: Well, I think it's an interesting concept, frankly. I think it is, however, a concept, and I think that Prof. Abraham has said so. I mean, I think that it is probably not the kind of thing that one should jump into without some information about how, in fact, it might work. I can see both sides. I can see Mr. Inlander's point that one of the purposes of the tort system is to hold the people who do wrong liable, but I can also see how enterprise liability might place the responsibility on a higher level and under the plan, that might be necessary. I fear any kind of forced contractual liability as a part of enterprise liability, however, and that needs to be carefully examined.

MR. LEHRER: Mr. Abraham, what is the evidence about this, about your propo -- I mean, what, what is on, what can anybody look at to see if it works, or do you agree that there's nothing to look at?

MR. ABRAHAM: No, there are analogies. The University of California hospital system has a liability regime that works similarly to the one that we proposed. Several other hospital systems have it. HMO's, which employ their own physicians, in effect, immunize their physicians from liability and pay their malpractice premiums, and those, those systems seem to work pretty well.

MR. LEHRER: But what about Mr. Inlander's point that the people who are responsible for making the mistakes should be liable?

MR. ABRAHAM: Well, the people who are responsible for making the mistake should be responsible. It doesn't mean that they have to be responsible monetarily to a particular patient. When, when an airplane crashes, we don't look to see whether the mechanic made a mistake. We impose liability on the airline. When a drug malfunctions, we don't try to find which research scientist made the mistake that failed to discover a side effect that injured a patient. We impose liability on the enterprise and give the enterprise an incentive to monitor the quality of the behavior of the people that it works with.

MR. LEHRER: What's wrong with that, Mr. Inlander?

MR. INLANDER: The problem is that the issue is malpractice, not malpractice insurance. Eighty thousand people a year are killed from negligent hospital care, each year killed. Three hundred thousand --

MR. LEHRER: Where does that figure come from?

MR. INLANDER: From the New York Harvard study of New York, of looking at New York's negligence rate, 1 percent. Now all it was was 1 percent, small number it sounds like, but when you extrapolate that, there's no reason why it would not be different, we're talking about 80,000 people. We're talking about 4 percent of the people they found were, actually had an adverse event in the hospital, and that would be --

MR. LEHRER: Wait a minute. 4 percent of the 1 percent?

MR. INLANDER: No. 4 percent of 100 percent.

MR. LEHRER: Oh, 4 percent of 100 percent.

MR. INLANDER: Had an adverse event, 1 percent from negligence, clearly negligence.

MR. LEHRER: All right.

MR. INLANDER: So we're talking big numbers here of people being injured or harmed. Ten thousand people a year are dying from anesthesia-related mishaps. That's from, from the medical literature. We have seen in the last ten years the number of hospital-related infections double, double from 5 percent to 10 percent in the last ten years. And half of those are from the result of negligence of them, not following proper procedure. Now, it seems to me that, that we have held hospitals and others liable for a long, long time, and they still don't take the proper actions. It just seems more important to me that those who do the bad things to people -- when I go to the doctor and there's over a billion medical encounters a year, patient to doctor, it's the doctor who's treating me, not the HMO, not the hospital, not some insurance company. It's the doctor who treats me. And when the doctor does wrong, the doctor should be held responsible for their action.

MR. LEHRER: Dr. Corlin, do you agree with that, that you as a physician and all other physicians should be held responsible, or are you saying no?

DR. CORLIN: I agree with the last statement. Yes. I think it serves a good purpose to be able to identify a physician when a physician does something wrong, but Mr. Inlander has misquoted something out of the Harvard study, and I think we ought to correct the record right now. Indeed, there was a 1 percent incidence of malpractice cases filed, approximately 300 cases out of 31,000 charts. But when they independently reviewed all those 300 cases, they found that in only 49 of the 300 was there any evidence of substandard care, and 251 of them, or five out of six, was simply a bad result of care that was not negligent. And that's a big part of the problem that we're facing right now.

MR. LEHRER: You mean bad -- you mean somebody made a bad judgment, not through negligence, you mean?

DR. CORLIN: Not necessarily even a bad judgment. It may be, for instance, a complication due to an adverse reaction to an antibiotic that the patient had never had before, so had no way of knowing that they were allergic to it. This clearly is a bad result, but it's not substandard care.

MR. LEHRER: Ms. Conlin, let me ask Ms. Conlin just finally here, do you agree with Mr. Inlander the problem is not a malpractice insurance problem, the problem is a malpractice problem, that's the one that must be dealt with?

MS. CONLIN: The cause of medical negligence lawsuits is medical negligence. There just isn't any question about that. And I think that what we need to address ourselves to is how we solve that problem of medical negligence. Frankly, tort lawsuits are helpful in that regard, not harmful in that regard.

MR. LEHRER: Let me ask Mr. Abraham about that. I mean, forget malpractice insurance, forget costs and all of that. Would your plan reduce malpractice?

MR. ABRAHAM: I believe it would. I believe it would reduce malpractice by, by putting liability on the enterprise that can adjust these various aspects of care.

MR. LEHRER: They would -- in other words, they would be the enforcer, the HMO, the hospital would enforce --

MR. ABRAHAM: In any given treatment situation, you've got a surgeon, you've got a, perhaps a resident. You've got some nurses. You've got orderlies. You've got equipment that's been ordered. You've got decisions made about how to bring all those people together and what to do with a patient before surgery, what to do after. It's got to be an organization that makes those decisions, decides how to adjust to all those factors so that you can reduce injuries. You can't do it by threatening individuals.

MR. LEHRER: All right. We have to leave it there. Ms. Conlin, gentlemen, thank you, all four, very much.

MS. HUNTER-GAULT: Still ahead, alcoholism and the elderly and a commencement conversation. FOCUS - HIDDEN PROBLEM

MS. HUNTER-GAULT: Next tonight, a hidden problem among the elderly, alcoholism. It often goes undiagnosed, and specialized treatment isn't covered by Medicare. It's estimated that alcohol- related hospitalizations of the elderly add billions of dollars a year to the health care bill. Rick Rockwell of public station WEDU in Tampa, Florida, has our report.

MR. ROCKWELL: Sixty-eight year old Mickey serves her neighbors every day at this center for senior citizens in St. Petersburg.

MICKEY: Good morning. Coffee ready.

MR. ROCKWELL: This retired nurse has been honored by Florida's governor for her community service. Her life seems like a model for others to follow, but she says her recent past has been troubled. After retirement, Mickey's husband died. Her depression over that loss grew into something more.

MICKEY: I became an alcoholic. Yeah, an alcoholic, you could say that. That's what they got on my record. Yeah. I became, because I used to drink every day, trying to forget about him, and it was worse.

MR. ROCKWELL: Dr. Joan Barice sees many cases like Mickey's. She's an internist who specializes in treating people with addictions. She practices in Palm Beach County, Florida, the county with the oldest population in the nation.

DR. JOAN BARICE, Internist: Losing a spouse, living alone can lead to depression, despair, and consoling oneself with alcohol, and can easily cause a problem, because while a person could drink one or two drinks a day when they were younger, if they drink one or two drinks a day now when their body is more sensitive to alcohol and their blood level of alcohol is higher, and they're taking prescription drugs, they can become an alcoholic very easily.

MR. ROCKWELL: Social events of seniors, like this Big Band dance in St. Petersburg, provide recreation that involves drinking. Cocktail hours and so-called "happy hours" often become a routine part of retirement living. The growing number of elderly alcoholics sparked a congressional study last year. The study estimates 2.5 million older Americans have problems with alcohol or drugs. The same report estimates that one in every five elderly persons who is hospitalized is an alcoholic, but their addiction often goes untreated.

CAROL COLLERAN, Hanley-Hazelden Center: They're the most difficult age group to get into treatment.

MR. ROCKWELL: Carol Colleran is the program director at the Hanley-Hazelden Center in West Palm Beach, one of the few substance abuse treatment centers in the country with a special track for older adults. She's also a recovering alcoholic.

CAROL COLLERAN: It's the older adult who's excessively napping, falling asleep in front of the TV in the early afternoon, shaky hands. Now, you're going to tell me those are perfectly normal signs of aging, and they are, but they can sometimes be a symptom of alcohol or medication problem.

MR. ROCKWELL: Colleran is one of many treatment experts who estimate 15 percent of adults over age 50 have alcohol problems, and a study released by the House Committee on Aging raises concern about the enormous cost those numbers pose. The study says 70 percent of all hospital admissions for the elderly are alcohol-related, and that adds up to $60 billion in health care costs each year.

DR. JOAN BARICE: It usually manifests itself as medical problems that are diagnosed, misdiagnosed as say Alzheimer's, because of the memory problem, or Parkinism because of the withdrawal shakes, or strokes, because of falling down drunk, or any number of other health problems.

MR. ROCKWELL: At the Florida Mental Health Institute on the campus of the University of South Florida in Tampa, Dr. Kathie Bates sees many of the same problems.

DR. KATHIE BATES, Florida Mental Health Institute: It's under- diagnosed by physicians perhaps or other people who are working with the client, and then oftentimes family members also kind of collude in that and are, well, you know, Aunt Jane should be able to have her hot toddy.

DR. JOAN BARICE: The family doesn't tell me, because they think, well, you know, granny can't change, too old to change, don't, don't bother them, leave them be so they can enjoy what time they have left. Well, there's no pleasure in living in an alcoholic fog or being in a hospital with a broken bone and being in alcohol withdrawal and so on. The quality of life is definitely not good.

SPOKESPERSON: Hi, everybody. Good to see you.

MR. ROCKWELL: Support group sessions often revolve around the dangers of excessive drinking, like this session for older alcoholics at Hanley-Hazelden.

MAN: When I was first diagnosed, I had acute alcoholic pancreatitis.

WOMAN: And that's deadly.

MAN: That is dangerous. That is very, very dangerous.

OTHER MAN IN GROUP: I almost killed myself I drank so much. I mean, it was just around the clock. Wake up out of a sound sleep, go have a couple of drinks. It was just scary.

MR. ROCKWELL: To treat older alcoholics, family members need to recognize the problem, says Jim Plant, the executive director of the Hanley-Hazelden Center.

TIM PLANT, Hanley-Hazelden Center: They're not in the work force anymore. They're not going to be identified through an employee assistance program. They're not as likely to be driving out on the streets and picked up for driving under the influence. So it's, very few people get to treatment totally on their own. The influence of family and friends and physicians is really of great importance in encouraging the older adult to get help.

DOROTHY: It was very destructive to drink. I was depressed. But I still did it anyway.

MR. ROCKWELL: Sixty-three year old Dorothy went for treatment at this center in West Palm Beach. Therapy here is tailored to older adults. Treatment at Hanley-Hazelden includes many scheduled rest periods, low impact exercise like strolling, and a longer detoxification, along with special group therapy.

CAROL COLLERAN, Hanley-Hazelden Center: We have a group that is age appropriate for them in group therapy. We find that they have difficulty relating to a 22 year old drug addict.

MR. ROCKWELL: This residential program uses the philosophy of Alcoholics Anonymous to guide its therapy. That philosophy urges patients to admit they have a problem and approach therapy one day at a time, among other prescribed steps. Even the parking lot has reminders of the 12 step process. Cost for one month here, about $11,000, but the program isn't covered by Medicare. Patients here pay their own way or get grants, loans, or health insurance that cover the cost. Although Dorothy goes to support sessions for her age group at Hanley-Hazelden, she found a more modest program at Gratitude House. But here, she's the only resident over 50. Costs range from eight hundred to eighteen hundred dollars per month. Again, Medicare won't pay the bill, because only hospitals and nursing homes are eligible for those funds. But few homes and hospitals have programs for older alcoholics.

TOM: Well, you know, you don't like to say you're any weaker than anyone else, that you can't handle liquor.

MR. ROCKWELL: At the Florida Mental Health Institute in Tampa, Tom begins his daily outpatient session with proof he's sober, a breathalyzer test.

SPOKESPERSON: [talking to Tom] That's good.

MR. ROCKWELL: Sixty-two year old Tom recently saw the benefits of sobriety. He works at home as an economic analyst, but in recent years, alcohol became his refuge from doubt.

TOM: As you're getting older, you come into a series of problems that you don't expect. One, for instance, as you're getting older, getting closer to retirement, this is an uncertainty you don't know how to handle.

WOMAN: My whole life, we always talked that my dad would have a drink every night or a couple of drinks every night of rum and coke is what he always had. And he started off, I remember, we'd always joke that he'd have two fingers' worth of rum in his drink, and they'd be horizontal, and as years went on, his two fingers became vertical.

MR. ROCKWELL: Tom went into therapy only after an emotional appeal from his family. Pushing the older alcoholic into treatment is sometimes impossible, but experts do have suggestions on how to approach this emotional moment.

TIM PLANT: Not to moralize, not to use labels like alcoholic, that scares people off in a hurry; not to approach them when they're drinking or high, that's a bad time; and some simple kinds of words to use to let the person know I care. That's why I want to talk about this, and to then make a concrete suggestion about how we could go about getting help. Let's make an appointment to go see the doctor.

MR. ROCKWELL: The members of this group, all alcoholics, would agree that when confronted by family friends, they denied they had a problem. They resented the confrontation. But today, after weeks of intense treatment, they're prepared to face life's problems by staying sober. CONVERSATION

MS. HUNTER-GAULT: Finally tonight, we celebrate this season of commencement with a commencement conversation. It's with Rutgers political scientist Benjamin Barber, who believes that education in America can provide an aristocracy of everyone.

MS. HUNTER-GAULT: Dr. Barber, you've described America as being a gigantic turning point, as being in the middle of a historic transition. What did you mean by that?

BENJAMIN BARBER, Political Scientist, Rutgers University: Well, we're a nation that's 200 years old, and I think we really face a crossroads in the American future, because we face a time when we have to decide whether we want to have a future and what kind of a future it's going to be, whether it's going to be democratic, whether our children are going to play a role in that future, or whether we're going to be satisfied with the first two hundred years and more or less let things come to a half.

MS. HUNTER-GAULT: Just what is at stake?

DR. BARBER: Most profoundly I think our liberties are at stake, American democracy, American liberties. Those have been tied up with the American dream, and the American dream is not just about making money, making a place in the sun for you or your children. I've noticed in the last years again, perhaps even since the war, but particularly in the last ten or fifteen years, there's a great and profound emphasis in America on rights. Everybody knows about their rights as against everybody else, against the government, against other people. Almost nobody has been talking until just recently about responsibilities, about obligations. And the Bill of Rights, the American Bill of Rights, is a piece of paper. James Madison called it paper parchments of no real use at all to secure liberty, unless it's backed up by the substance of citizenship, of citizens taking responsibility for themselves, not blaming others, being involved in the decisions that affect their lives, and that's the sense I think in which the balance between rights and responsibilities has been lost and the sense that we are citizens who are ourselves responsible for the future of America. That's been lost too. We wait around for new leaders. Now I think we're waiting for President Clinton to solve our problems. We have a new leader. We sit back. We watch, without remembering that without the rest of America, for all the best of intentions, President Clinton's administration can do nothing. But the danger is Americans get involved during elections and then go back to their private lives, wait for four years, and then, if they want, throw the rascals out and start over again, but it's continuing involvement that I'm looking for.

MS. HUNTER-GAULT: Where do you see this abdication of responsibility? And give me some concrete examples.

DR. BARBER: The most graphic thing I think I notice is the unwillingness of people around the country to pay the taxes to support their local schools. Many people say I'm not a parent, or I'm not a parent anymore, my children have left school, that's not my responsibility, as if a pay or play, pay as you go is the basis for the education of young Americans. We can't educate America selectively. We can't permit those with advantages and with resources to be educated and to let the rest of American go down the drain. We rise or fall as a single national community, and it's that, that we don't seem to understand, and it's that, that our rights, which are kind of knives that, that cut us off from our identity and membership in the American nation, it's, that's the problem I think with rights.

MS. HUNTER-GAULT: What is the basic premise of your book, An Aristocracy of Everyone?

DR. BARBER: The premise is that in a democracy which offers adequate resources to its schools there need not be a tension and incapability between excellence and egalitarianism, that it's possible to offer everybody access to the community of excellence through schooling that democracy promises. It's only in societies that refuse to allocate equitably their resources that excellence is the privilege of the few and mediocrity the lot of the many. There are two ways of thinking about egalitarianism in a democracy. One is that it means leveling, finding a lowest common denominator, dumbing down students, slowing down students, making everybody walk at the pace of the slowest. But the ideal democracy is one in which we elevate. We don't dumb down. We help everybody reach the same high level. That's why I like to about an aristocracy, excellence, but an aristocracy of everyone, an aristocracy which --

MS. HUNTER-GAULT: But isn't that an oxymoron?

DR. BARBER: It is exactly an oxymoron. If we think that only a few are capable of excellence and if we think our society can only afford to help a few who are already well off or who are already privileged by reason of birth or class or wealth, or the family they come from. The American challenge is to make the opportunity for excellence available to everyone. There's no reason why if you believe in the first premise of democracy, which is that every human being is capable of self government, capable of reasoning, capable of governing your own lives, making important decisions, there's no reason why we can't make that opportunity available to everybody. But that requires a national will, a political will, a commitment to education.

MS. HUNTER-GAULT: What kind of resources are you talking about, and where would you target them?

DR. BARBER: First of all, and most importantly, resources for teachers, salaries that will make teaching one of the highest status and most desirable professions in America. Right now, young people simply don't -- the best and brightest young people, they go for MBA's, they go to become lawyers, investment bankers, doctors. They don't go into teaching, not because they wouldn't love the idea of teaching, but because it simply doesn't begin to pay competitive salaries. You pay kindergarten teachers $75,000 a year for the first year, which is what corporate lawyers get in their first year, I guarantee you you'll have some of the best young Americans in kindergarten, working hard, and you'll be educating, you'll be starting young people out on a road to education that's important. You'll also be sending a message to the kids in those schools that their teachers are among the highest status Americans. And then maybe they'll listen to what they're being taught. Right now, they're taught by what the society tells them not to listen to their teachers, because the society says these teachers aren't worth much, we're not going to pay them much, we're not going to treat them very well, so the kids hear that lesson and say, why should we listen to what they're saying, the society doesn't really believe in it.

MS. HUNTER-GAULT: What about the idea advanced that part of the reason why our colleges are now emphasizing vocational education is that so many of our young people arrive at college now, many of them not really able to speak English, in part because that's not their first language, in part because some of them haven't been well educated, even English speakers, and that argument goes that that's why colleges have been turned into remedial institutions. What's your sense of that?

DR. BARBER: There's some truth in that, but there's also a lot of exaggeration. One of the things that bothers me is that the debates about the canon, about multiculturalism, about English as a first language, proceed as if there's a single course, a single year, a single set of education decisions, and those make the whole life of the student. An education lasts fifteen, eighteen years, if people go through college. We have time. Education is a developmental strategy. There's no reason why we can't start with children coming in from Korea or from Latin America with two languages in a classroom and work towards English as a primary language. There's no reason why we can't honor difference at one stage in the education of young people and in another stage talk about what it is that holds us together, the constitutional fabric, and the political institution. We don't have to do it all at once. It's not a or b, on or off, yes or no. There's room in an education that has the resources it needs to do it for a developmental evolutionary strategy that I think can permit young immigrant children from Asia and from Latin America and from Mexico to find their way gradually into an American system. They don't have to be there when they're eight or when they're twelve. We want them there when they're 18 and voting. That gives us about fourteen, fifteen years to do it.

MS. HUNTER-GAULT: You know, Theodore White has written about America being held together by ideas and that those ideas produce a culture of hope, and yet, there seems to be so much if not despair, anxiety about the future.

DR. BARBER: But some of it, again, is that loss of faith. Our original national motto is "E pluribus unum," From difference unity, the civil religion that Theodore White and that Arthur Schlesinger want to talk about. It's a very powerful thing. We do have a religion of civic ideas, constitutional faith that holds us together, but it's a constitutional faith, it's a civil religion of difference. Difference plays a central role. The belief is that every single person, no matter where they come from, what their religion, what their gender, has a right to be an American, to participate in that American dream. That's what the civil religion is about, and nowadays, people like Arthur Schlesinger and others seem to think that civil religion has to be a religion of unity, a faith in which we deny or at least try to suppress our differences, and it seems to me we've always been strengthened by those differences when we acknowledge them, when we recognize them, when we let them be part of our school curricula, and is it just because now African-American differences and Latino differences are being added into Italian and Polish, and German and Anglo, and Irish differences that suddenly we're nervous about our differences? That's a question America has to ask itself. RECAP

MR. LEHRER: Again, the major stories of this Tuesday, President Clinton campaigned for his economic plan among congressional Democrats. Several Congressmen said they were optimistic about a compromise between liberal and conservative Democrats before they vote Thursday. And Mr. Clinton denied any prior knowledge about the firing of the White House travel staff. He said all he knew was that it was an attempt to save money. Senate Minority Leader Dole said the matter warranted a Senate investigation. Good night, Charlayne.

MS. HUNTER-GAULT: Good night, Jim. That's our NewsHour for tonight. We'll be back tomorrow night. I'm Charlayne Hunter-Gault. Good night.