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MALPRACTICE REFORM: A new alternative
FRf M THE
SENATE
By Sen.RobD'Leary
Massachusettsisfailingwhenit comestomedical
malpractice liability,according to areport recently
cited by the Boston Herald. Although the report,
issued by the AmericanCollege of Emergency Phy-
sicians, places Massachusetts among the nation's
leaders in terms of public health and access to
emergency care,we earned afailing grade of D- for
our medical liability environment.
Doctors can no longer afford the skyrocketing
premiums for malpractice insurance and many
are refusing to practice certain specialties, such
as obstetrics, or are leaving the state altogether.
The practice of defensive medicine, in which doc-
tors order unnecessarytests to protect themselves
from malpractice claims,
is further inflating health
care costs. Moreover, our
costly court system fails
the patients. Studies sug-
gest that fewer than 5
percent of injured pa-
tients ever seek claims.
Cases are kept quiet, so
doctors never learn from
mistakes.
Caps on damages or other avenues oftort reform
have often been suggested as means of address-
ing the liability crisis. Caps may slow the growth
of insurance rates, but they do not address the
underlying problems with our adversarial tort
system and do nothing to improve patient safety.
We must find a better option for reform.
That is why we are advocating the creation of a
health court system that would benefit patients
and doctors alike. Under this non-adversarial sys-
tem, decisions would be made by neutral medical
experts and injured patients would not be pitted
against their health care providers. Doctors would
be required to immediately admit and apologize
when an avoidable mistakehas occurred and would
offer the injured patient early compensation. If the
patient feels the offer is unfair,he would be eligible
for an arbitrated appeal. More patients would be
compensated and payouts would be predictable
and consistent with the injury. A lower threshold
of avoidability, rather than the current negligent
standard,would encourage doctors to report errors
and near misses. Information regarding injuries
would be collected in a database for all doctors
to learn from, increasing patient safety.
A health court system would also address the
extreme inefficiencies of the tort system. Some
estimate that up to half of all malpractice costs go
to attorney fees and other administrative costs. By
eliminatingthe lengthylegal process,health courts
would drasticallycut administrative waste.Money
would instead be directed to the victims - the in-
jured patients - in a more timely framework .
Across the country, doc-
tors, patients, and legisla-
tors are looking to health
courts as apromising alter-
native to the tort system.
Thispast summer,senators
Michael Enzi of Wyoming
and Max Baucus of Mon-
tana introduced national
legislation to encourage
further investigation into health courts. Massa-
chusetts has the opportunity to lead the nation by
implementing a pilot program to test the health
court system. Researchers at the Harvard School
of Public Health,inconjunction with the non-profit
Common Good, have developed a blueprint for the
creation of a health court system.
In the last session, the Legislature authorized a
study ofthe idea of healthcourts,however,the com-
missionappointments weren't finalized until after
the study deadline had passed. Although efforts
are under way to resurrect this study, we believe
that it's actually time for a specific plan to be con-
sidered on Beacon Hill. In the coming months, we
willbe submitting legislation to implement a pilot
project at some area hospitals to help determine
the feasibility of a health court. With our medical
malpractice environment near crisis,we must look
beyond incremental reform to the current system
to a more promising alternative.
LETTERS
Waysto water are
being lost
The BarnstableAssociationfor
Recreational Shellfishing isvery
familiar withthe issuesdiscussed
in Paul Gauvin's "Cotuit Ease-
ment" article published in your
Feb. 24 edition. BARS cannot
understand why it is taking so
long for the Town of Barnstable
to recognize and appropriately
designatethis area asatownway
to the water.
BARS has the following state-
ment as part of its mission state-
ment: To pursue civic activities
- i.e., encouraging the town to
maintain and increase local
"ways to water."
Consistent with this objective,
last fall one of our members
approached the town shellfish
committee. He reported the
results of his deed and title re-
searchefforts withrespect to two
Cotuit locations, one of which is
discussed in the Gauvin article.
His conclusions were that each
of the areas were legitimate lo-
cal "ways to water" that were
no longer being maintained. In
the memory of many residents
each area had a history of being
used for access to the shoreline,
which is supported by the deed
and title research results.
Through the efforts of the
shellfish committee, an on-site
walk-through was held in early
January.Participatingwere rep-
resentatives of the shellfish
committee and the town's legal
department aswell asthe BARS
and Three Bays organizations.
No conclusions were reached.
The need for more research was
expressed by the legal depar-
ment without any expression of
time frame withinwhich it would
be accomplished. Two months
after the walk-through and no
response asyet! It would appear
that the hope is that somehow
the expressed concerns willjust
fade away.
The Town of Barnstable con-
tinuesto neglect its responsibili-
tiesinthe areaofmaintainingand
increasing local"ways to water."
Access routes to shellfishing ar-
eas once availableare now over-
grown by vegetation, blocked by
new property owner fences and
boulders, town ways to water
signs removed, etc. BARS feels
that the time has come for the
Town to designate responsible
decision-making leadership to
this long-neglected area.
BARS is a source of volunteer
labor to research deeds, to clear
brush,to paint and erect signs or
whateverisneeded. Overthepast
several years, BARS has made
and continues to make asignfici-
ant contribution to Barnstable
shellfish propagation efforts but
only by working under the direc-
tion and leadership provided
by the Department of Natural
Resources. The same positive
results can happen in the "ways
to water" areas, but only if the
town takes the lead.
Stanley R Negus
President
BARS
Trolley rings her bell
Thankyou for your story about
the Olde Cape Cod Trolley,
which we hope to see operating
in Hyannis soon. The trolley will
focus on historical and cultural
sites around Hyannis and parts
of Centerville. Stops along Main
Street,atthe JFKMuseum,Cape
Cod MaritimeMuseum and Toad
Hall at Simmons Homestead as
well as the Harbor and beaches
will be accompanied by a nar-
rated tour.
This is a wonderful opportu-
nity to bring visitors to Hyannis
and expose them to the variety
of cultural activities, galleries,
restaurants and shopsinHyannis
without creating more traffic.
Cynthia Cole
Barnstable
On a sour note
For the past six years, I loved
goingtothe concertsattheMash-
pee Commons every Wednesday
night and Friday night, but un-
fortunately those daysof summer
fun are gone forever. Unless, of
course, all of the Mashpee Com-
mons merchants decide to all
pitch in and paywhatever it costs
to build abeautiful bandstand on
the piece of land that is across
the street from the Mashpee
Public Library.
I looked forward to every
Wednesday night and to every
CONTINUED ON PAGE A:12
By Paul Gauvin
Zoning scofflaws beware !
The town is lawyerin' up
F
irst,the town administration moved
former assistant town attorney Ruth
Weil to head up the Growth Man-
agement Division, and hired Patty Daley,
another lawyer formerly staff counsel for (
the loved-hated Cape Cod Commission,as
director of the new comprehensive plan-
ning.Then the town plucked Atty. Charles
McLaughlin from outside private practice
to serve assecond banana to town attorney
Bob Smith, replacing Weil.
The administration also filled a new
position with another lawyer, Christine
M. Palkoski, who has already achieved the
distinction of becoming the town's first
"regulatory coordinator." What's that?
The town council created the position
to beef up enforcement of its land use
ordinances such as zoning, but to many
laymen who are still trying to figure out
how the growth management division fits
in the scheme of things,tackingon a "first"
enforcer surfaces as another blur in the
municipal maze of hot-to-trot growth- and
control-minded governance.
The word "coordinator " conjures up
memories of TVs Fred Sanford boastfully
"coordinating" his junkyard empire, so it
was with curiosity that Weil was asked to
elucidate on the job description.
Before proceeding with her reply, it is
beneficial to know by way of backgro und
that Ms. Palkoski is a former assistant
district attorney in the C&I DA's office ,
and, as quoted in the Barnstable Bulletin, a
town-published monthly, "brings extensive
trial experience and in-depth knowledge
of the district court system."
This sounds serious and it may be wise
for people who have been getting awaywith
all sorts of zoninginfractions to straighten
up and fly right or purchase a watchdog
lest they be caught red-handed and hauled
into court .
What kind ofinfractions? Some,the town
has learned , that are most difficult to re-
solve -such as the quality of life issues that
so aggravate victimsof overcrowded , noisy
houses next door, too many cars parked
helter skelter on lawns, opportunists tak-
ing advantage of otherwise beneficent
programs ashousing amnesty or insensitive
and nasty neighbors violating any number
of zoning rules.
"Essentially, the regulatory coordinator
is a response to some concerns, to quality
of life issues, neighborhood issues and how
they affect day to day living," Weil said.
"Because of budget cuts we previously had
lost several enforcement personnel."
Without enforcers , town councilors were
at the receiving end of complaints from
citizens concerning disruptive neighbor-
hood issues and in "What to do?" fashion
decided it was time to lower the boom.
Voila, Palkoski and regulatory coordina-
tion. Will it work?
Now, Palkoski will coordinate the efforts
of enforcer units such as health and build-
ing departments to assure enforcement
-and prosecution when called for -of law-
breakers who heretofore were poo-poohed
by the legal system as trivial pursuits.
On its face, this is good news for law-
abiding citizens attempting to protect
the integrity of dwindling single-family
neighborhoods from fraudulent abuse of
the amnesty law or other infringements
of zoning regulations.
An interesting note: When alocal couple
last year fraudulently tried to abuse the
amnesty program and were caught red-
handed byneighbors, TownManager John
Klimm referred the matter to the district
attorney'soffice and essentially got the cold
shoulder. There was no prosecution. Now
with Palkoski's experience as an assistant
DA, it is hoped zoning scofflaws will get
their day in court.
Weil said Palkoski will "help current
enforcement staff better understand the
enforcement role in the context of typi-
cal criminal investigation with ... better
report writing that will help prosecutors
figure out if there is a basis to proceed. "
The new officer will also prosecute cases
in conjunction with the DA's office.
She will also serve as a hearings officer
under a new law reacting to The Station
nightclub fire inRhode Island asit pertains
to building and fire codes. She said town
attorney Bob Smith would like to move
toward prosecuting fire and building code
cases in town, albeit the power to do so
would require special legislation.
"It's not going to be perfect ," Weil proj-
ects,"but wewilltryto deal more effectively
with zoning enforcement pertaining to
quality of life issues. We will also look for
better ways ... maybe legislatively. Maybe
we need more (legal ) tools."
Citizens look forward to growth manage-
ment'sstatistical performance in the next
annual town report.
1C0RNER
L-i— ¦ um By Paul Gauvin
Hot air blows
in from Alaska
By Michael Daley
columnist@barnstablepatnot.com
If
you are the only congressman
for allAlaska,how do you find the
time to get involved in a regional
Massachusetts matter?
The 2000 census lists the popu-
lation of Alaska at about 627,000
people. At 656,425 square miles,
the state has a population density
of about 1.1 individuals per square
mile.It'san election year and that's
a long walk from handshake to
handshake.
As a point of reference Alaska
is almost 11,000 times larger than
Barnstable.
Our popula-
tion density
isjust about
800 indi-
viduals per
square mile.
That makes
us about 800
times more
densely populated than Alaska.
Other than being in the same coun-
try and bordering an ocean, there
isn't much commonality between
Cape Cod and Alaska.Yet,in recent
days, Alaska'sonly congressman is
rather aggressively representing
our community.
During the past thirty years I've
been on Nantucket sound in every-
thing from an eight-foot inflatable
to the mighty ferries. I've fished
professionally with rods and reels,
hand lines, pots and scallop drags.
I've pulled gill nets in a December
nor'easter and picked fish for hours
on the rocking decks of both stern
and pair trawlers. I have been out
there inweather that wassweet and
weather that was very harsh. I've
fished for tuna offshore in whale
pods that surrealistically span the
360-degree horizon. The best I get
these days is a weekly ride to and
from Nantucket aboard the Grey
Lady.
As winter travel to Nantucket
goes, this year has been a piece of
cake. I haven't had to use a plane
to get to Nantucket all season.
That's not the norm. On one trip
home about a week or two ago it
was particularly rough.We were on
a boat that was a bit smaller than
the usual one and as we made our
way to Hyannis it was very, very
windy. Suddenly the bow went
directly into two really good-sized
waves. It was a real quick series of
waves over the windshield. These
were the kind of waves where the
glass seems like you will never see
out of it again.
The glass hatch leading out to
the bow was leaking. It added a
special charm to the situation on
board. While this trip was not truly
atraditional Nantucket sleigh ride,
it seemed to qualify as one for the
two young lads sitting with their
father just across from me. The
boys were clearly frightened. The
dad seemed abit under the weather
himself. It was a touching moment
for all of them. In fact I observed
the trip was abnormally quiet and
many on the trip that evening were
not having much fun.
As I looked around at the many
insecure passengers traveling with
me, I found it interesting that on
that very day I had learned that
the congressman for allAlaska was
looking out for my shipmates and
me. Through his efforts I knew that
our route would forever be clear
of all wind towers for a distance
of at least one and one half miles.
That's when I began thinking
should something happen in these
stiff March winds, a snorter swim
to a friendly wind tower might not
be such a bad idea. I immediately
got no comfort from the Alaskan's
efforts to protect me from wind
towers in the sound.
Perhaps the congressman for
all Alaska should not worry about
seasoned old salts like my old
friend in the pilothouse. Perhaps
the congressman for all Alaska
along with the federal representa-
tives that we elect should at least
consider allowing a shorter swim
to safety for those like the young
lads and their dad. I suspect that
if future weary travelers see wind
towers just a short distance away,
they might enjoy that next windy
trip just a little bit more. I know
that I will.
I Come home to
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