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President Bush is making Pennsylvania trial lawyers one of the focalpoints of his campaign in this state, one of the nation’s most hotlycontested electoral battlegrounds. As Sen. John Kerry, D-Mass., appears to have opened up a lead over Bushin several recent polls of Pennsylvania likely voters, the president hasaimed his advertising howitzer at the state’s contingent of triallawyers in a series of television and radio spots that began airingheavily in the Philadelphia media market this past weekend. Several prominent trial lawyers fired back Monday, claiming Bush isusing them as a scapegoat even as he protects his corporate campaigncontributors in the insurance, pharmaceutical and health careindustries. On the stump last week in Wilkes-Barre, Bush contrasted his record onthe med mal insurance crisis with Kerry. Bush stressed his support forcapping non-economic damages at $250,000 and enacting other measures toeliminate frivolous lawsuits. Meanwhile, he criticized Kerry foropposing such measures. He said the Democratic nominee also showed hisclose alliance with trial lawyers by picking one — Sen. John Edwards,D-N.C. — as his running mate. Plaintiffs lawyers have consistently rejected the argument that excessverdicts have contributed to rising medical malpractice insurance rates,citing data that contests arguments made by tort reform advocates.One Bush-Cheney television advertisement running in Pennsylvania saysKerry’s support of trial lawyers is responsible for contributing to awomen’s health emergency that has reduced access to care. The text of the commercial, which includes ominous background music andvisuals, reads as follows: “For Pennsylvania women, it’s now anemergency. Our hospitals … closing maternity wards. OB/GYNs forcedout. Three-month waits for mammograms. … The reason: frivolouslawsuits from out-of-control personal injury trial lawyers. And JohnKerry and the liberals in Congress stand with those trial lawyers.They’ve voted to block medical lawsuit reform 10 times. And that’s whyour good doctors are leaving.” According to a press release posted on the Bush-Cheney campaign Website, Pennsylvania is the only state to see a localized version of thead. A generic version of the ad is running on national cable televisionand “select local markets,” the campaign said. The Bush-Cheney campaign also provided the media with information tosupport the claims made in the ad. Much of the documentation came fromPolitically Active Physicians Association (PAPA), a group that supportslimiting medical malpractice lawsuits. It cited the 2002 closing of thematernity ward at Delaware County’s Mercy Community Hospital,Philadelphia’s Methodist Hospital closing its labor and deliverydepartment in 2002, Delaware County’s Mercy Fitzgerald Hospital closingits obstetrics unit in 2003 and Philadelphia’s Chestnut Hill Hospitallosing eight of its 14 OB/GYNs in recent years while still delivering1,100 babies each year. TARGETED MESSAGE G. Terry Madonna, chairman of the center for public affairs and politicsat Franklin & Marshall College, said the GOP’s rhetoric might play wellin target areas such as the Philadelphia suburbs and the Lehigh Valley,and comes as the latest Keystone Poll shows Kerry leading Bush inPennsylvania by a 6-percent margin among likely voters. “I’ve done surveys on this issue, and depending on the way it’s phrasedor explained, Pennsylvanians support caps and med mal reform,” Madonnasaid. “And [insurance premium] rates are especially high in thePhiladelphia suburbs, where Kerry now leads by 7 percent. “The president is attempting to use med mal as a wedge issue with asubsection of voters, and it will work in some instances,” Madonna said.”But I think the more important argument than trial lawyers to voters isthat health care costs are going up. In and of itself, beating up ontrial lawyers is not a real reason to vote a certain way. Trial lawyersare just the vehicle to get to health care costs.” Obermayer Rebmann Maxwell & Hippel partner Thomas Leonard, a politicallyactive Democrat, said he believes that the president is implementing astrategy geared toward siphoning undecided voters away from Kerry in thePhiladelphia suburbs and Lehigh Valley. “This is not an issue that they wanted to lead with or else they wouldhave hit the air with it much earlier than they have,” Leonard said theof the Bush-Cheney campaign. “It’s a slash-and-burn strategy that can work if you are a challenger,but it’s a suspect strategy if you are an incumbent. The voters want toknow what you’ve done for them in four years as president and how you’llsupport them. People won’t be supporting a presidential candidatebecause their running mate is a trial lawyer or the CEO of Halliburton.The key issues they care about are Iraq, the war on terror, jobs, crimeand health care. And when you have to move outside of those issues tomake your point, it shows some weakness.” Kevin Madden, the regional spokesperson for the Bush-Cheney campaign,said that the president is stating that he believes the high costs anddecline in quality of health care can be directly attributed tofrivolous lawsuits filed by the state’s trial lawyers. “There are a number of studies, including one from the GeneralAccounting Office, that shows trauma centers in Pennsylvania are closingand access to health care in rural areas has declined,” Madden said.”And if John Kerry and John Edwards are elected, there will be two typesof hospitals: those that are sued and those that will be sued. Both haveposed an obstacle to medical malpractice reform in Pennsylvania, and thepresident wanted to make sure voters understand that.” DOCTORS NOT LEAVING Feldman Shepherd Wohlgelernter & Tanner partner Carol Nelson Shepherd, apast president of both the Pennsylvania and Philadelphia Trial LawyerAssociation who regularly handles obstetric/childbirth injury cases,said such talk flies in the face of the truth. She said the fact thatdoctors are applying for abatement of MCARE surcharges shows that theyare not leaving the state and that there has not been a decline inlicensed physicians. “The public is being mislead by a PR campaign conducted by doctors,particularly in Pennsylvania,” Shepherd said. “In reality, 1 percent ofthe entire cost of health care comes from litigation, compared to therising cost of pharmaceuticals and other elements like the rising numberof senior citizens in Pennsylvania. It’s only a small part of a large,complex issue.” Shepherd said that the compromise legislation passed two years ago bythe state legislature that brought with it the certificate of meritrequirement and restrictive venue change rules has helped to curbmedical malpractice filings in Philadelphia by 50 percent and inPennsylvania by 30 percent in 2003. Longtime PaTLA lobbyist Mark Phenicie said that anti-trial lawyerefforts in state capitals and Washington, D.C., have been backed largelyby the insurance industry as well as by the pharmaceutical industry andhealth care providers. “This is not an issue that really moves voters, even in the Philadelphiasuburbs,” Phenicie said. “[Former Pennsylvania Attorney General D.Michael] Fisher tried to use it against [Gov. Edward G.] Rendell and itdidn’t work. And Bush tried it here against [former Vice President Al]Gore four years ago and it didn’t work then, either.” Anapol Schwartz Weiss Cohan Feldman & Smalley partner Larry Cohan wasone of the few local trial lawyers to support Kerry over eventualrunning mate Edwards in the Democratic primary earlier this year. “This whole thing is really a smoke screen because filings are downdramatically,” Cohan said. “What this is really about is that insurancecompanies need to keep their profits up during a bad economy. Doctorsare mistaken if they think they will be helped by the re-election ofPresident Bush. Kerry will help them get better payments from the HMOsand with Medicare and Medicaid. “Putting a cap on damages really won’t affect their bottom line. We needsomeone who will hold the HMOs accountable. Unfortunately, George W.Bush doesn’t show a lot of recognition for the rights of ordinarypeople. But if there were no trial lawyers, asbestos would still besold, bad drugs would still be killing people, unsafe products wouldstill be on the market and catastrophically injured people would have nolegal recourse. Caps only help the insurance companies.” Pennsylvania Trial Lawyers Association president Jack Gallagher, whopractices in Media, admits that the negative image of trial lawyerscombined with the massive PR campaign mounted by corporate Americaagainst them has made it difficult to make them look like anything elsebut the villains of the medical malpractice story. “Lawyers are an easy target,” Gallagher said. “Everyone hates lawyersexcept for their own and that’s why President Bush might get sometraction from this. I have some clients that are loyal Republicans andthey eat that stuff up. They just have a blind spot for lawyers, eventhough they heavily rely on their own lawyer.” Unlike Leonard, who thinks the Bush strategy is meant to draw in swingvoters, Philadelphia Bar Association chancellor Gabriel L.I. Bevilacquasaid he believes the president is using the issue of med mal reform toenergize his base. “It’s a wedge issue like gay marriage,” Bevilacqua said. “The issue isso broad that to lay it all at the foot of trial lawyers is reallydishonest. The doctors that are leaving are doing so due toreimbursement issues and that falls squarely on the HMOs.” Robert Surrick, an attorney who just joined PAPA as its chiefspokesperson, supported the president’s arguments. “I think the president is dead on,” Surrick said. “This crisis wascaused by trial lawyers and it’s leaving doctors looking to move out ofthe state and women at risk, particularly poor women.” He said in southeastern Pennsylvania alone, 10 law firms accounted for$160 million in recoveries from local doctors and hospitals between 2001and 2003. “That means they are sucking hundreds of millions of dollars out of thehealthcare system,” he said. Surrick added that Senate Bill 9, whichstalled this past summer as state legislators concentrated on slotmachines, could have brought more meaningful change, but trial lawyersfought its implementation. In his debate last week with Vice President Dick Cheney, Edwards saidthat in order to prevent frivolous lawsuits, he and Kerry favor the useof independent experts to certify the validity of any case before acomplaint is filed, and also favor stiff penalties on lawyers who fileddodgy cases. On his campaign Web site, Kerry wrote that he “strongly opposes cappingdamages in medical malpractice lawsuits,” saying such a move onlyaffects the “least meritless cases and denies justice to those whosuffer life shattering injuries.”

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