Political Intelligence

Cruel to Be Kind

Heather Burcham’s aggressive cancer developed from the HPV virus at least four years ago. Had Burcham been correctly diagnosed when she first suggested to her doctors that her condition could be cancer, she believes there’s a good chance she’d be healthy today. Instead, four different doctors misdiagnosed her over a period of four years while her cancer spread. When it was properly diagnosed in April 2006, she was told she had six months to live.

Burcham told her story to reporters at the invitation of Gov. Rick Perry on February 19. The governor hoped “her predicament,” as Perry put it, would help sway legislators to support his plan for mandatory HPV inoculations. The Austin American-Statesman featured a photo of Perry, his hand on 31-year-old Burcham’s shoulder as she spoke. Perry made it clear that it was because he cared about women like her that he wanted to require the vaccine. If she had received the vaccine as a girl, Burcham likely would not have cancer today.

Perry’s compassion when it comes to prevention, however, is notably different than his concern for the legal rights of Texans like Burcham, whose doctors bungle their medical care. Burcham told reporters she decided not to spend her last six months dealing with a lawsuit, but in a case like hers, the law makes it all but impossible to recover much from negligent doctors. Despite losing her apartment and her job as a teacher, and dealing with the cost of chemotherapy and hospice care, Burcham and other Texans in similar “predicaments” for all practical purposes can’t sue doctors for mishandling their cases.

While the vaccine mandate seems to be terminal at the Lege, Perry was more successful in 2003 in pushing a health-care initiative of a different sort, limiting the rights of patients to sue over negligent medical care. Around the time Burcham first complained to her doctors and asked them if she might have cancer, Perry was leading the charge to limit those doctors’ liability for botching her diagnosis.

After the tort reform blitz of the 78th Legislature, the non-economic damages a malpractice victim could receive in court were capped at $250,000, and considering the high cost of a trial, it’s an amount low enough to scare about any lawyer away.

According to Alice London, a lawyer with the Austin firm Bishop London Brophy & Dodds, to try a doctor for negligence, she could count on the case to cost between $150,000 and $200,000. “It means that by the time you hire experts and litigate the case, you end up with next to nothing,” she says. “It’s morally impossible for me to take a case where I know my client will end up with nothing.”

Miami Vice

Three former executives of a Florida engineering firm already rocked by accusations of embezzlement and inflated billings have been indicted for allegedly breaking federal campaign finance laws while funneling money to political candidates. The company, PBS&J Corp., has received about $162 million in highway contracts from the Texas Department of Transportation in the past five years, and continues to manage two multimillion-dollar toll road projects for the state.

On March 8, Richard A. Wickett and H. Michael Dye, both former chairs of PBS&J, were charged in federal District Court in Miami with illegally funneling corporate campaign contributions to political candidates in Florida and elsewhere. According to an investigation by the FBI and the U.S. Attorney’s Office for the Southern District of Florida, the two tried to circumvent campaign laws and increase the “likelihood of procuring government contracts for PBS&J.” W. Scott DeLoach, a former chief financial officer, was indicted during an earlier phase of the investigation.

PBS&J has created political action committees in numerous states, including Texas. Since 2000, the Texas PAC has given contributions to scores of local and state candidates, including Gov. Rick Perry and Lt. Gov. David Dewhurst. Most of the contributions have been spent on local races for offices such as mayor, county commissioner, and city council, according to records on file at the Texas Ethics Commission.

Karen Rochlin, an assistant U.S. attorney in Miami, said she couldn’t comment on the case. She declined to say whether the investigation is ongoing or closed. A company spokesman, Jorge Martinez, said the firm halted disbursements from the Texas PAC early last summer while the federal probe was under way.

While trying to unravel the embezzlement scheme, PBS&J’s own financial experts discovered that the firm inadvertently had been overcharging some government clients for overhead costs. Since then, the company has been sending refunds. In Texas, clients getting money back include TXDOT, Hays County, the city of Austin, and the Austin-San Antonio Intermunicipal Commuter Rail District, said Keith Jackson, the firm’s state director in Texas. “We are refunding every entity that’s owed money. But every entity we have worked for is not owed money,” Jackson said.

Hays County received a $32,000 settlement last fall. Austin recently recouped $62,000, said city chief financial officer John Stephens. The rail district received almost $26,000, said Alison Schulze, district administrator and planner. TXDOT received $5.4 million, according to PBS&J documents, or about 3 percent of the roughly $162 million that TXDOT shelled out to PBS&J from 2002 through March of this year, according to documents obtained under the open-records law from the state Comptroller’s Office.

Amadeo Saenz, assistant executive director at TXDOT, said in a recent interview that the firm was blacklisted for a month or so last spring while TXDOT and PBS&J tried to work out a settlement on the overcharges. “We never had any problem with the quality of work that PBS&J was doing,” Saenz said. “But we needed to settle the issue.”

Despite PBS&J’s myriad financial and legal woes, the North Texas Tollway Authority and TXDOT have renewed its construction management contract to oversee numerous toll road projects planned for the Dallas-Fort Worth area. PBS&J is also the construction manager for portions of the Central Texas Turnpike Project, a $2.5 billion network of toll roads in north Austin.

Information Overload

Full-frontal assaults on abortion rights get the media attention, but pro-life activists have been most successful in the slow but steady erosion of reproductive freedom. Two bills this legislative session-House Bill 1750 by Victoria Republican Rep. Geanie Morrison and Senate Bill 785 by Plano Republican Sen. Florence Shapiro-are symptomatic of what pro-choice supporters warn is a disturbing trend.

Under the guise of gathering more information from abortion providers, the bills bury clinics under punitive regulations, expose judges and doctors to attacks, and further stigmatize the procedure for women. Providers already report each abortion, including the date and type of procedure, and the patient’s age, race, marital status, and county. The bills would add physician name, father’s age, how payment was provided, complications in the procedure, the referral source for the abortion, and if the patient is a minor, how she obtained consent, among other information. Patients can choose whether to report why they decided to have abortions.

“No other type of medical treatment or procedure requires this level of reporting to the state,” says Bethany Herrera, who oversees regulatory compliance at the Routh Street Women’s Clinic in Dallas.

Herrera says her clinic already keeps a medical complication log that the state inspects. The bills will make it more difficult for women to get follow-up care, Herrera says, because it requires in-depth reporting from physicians who see women with complications, even if the physicians didn’t perform the abortions. “No doctor is going to get involved in that,” Herrera says. “If you don’t [report correctly], if you don’t do it on time, you’re subject to fines and penalties.”

Because 93 percent of the state’s counties don’t have an abortion provider, many women travel to find one, yet seek follow-up care with hometown physicians, she says.

Shapiro insists more reporting will allow a “better-informed dialogue” on the issue. “It has nothing to do with individuals,” she says. “It has everything to do with data.” Morrison says having more information about why women get abortions could lead to outreach programs for low-income women, for example. The data also can identify whether one or two counties stand out from others, she says.

Opponents fear the information could be used to identify and target physicians and even patients, especially in smaller counties. Then there are the judges. In Texas, minors without a qualified parent can ask a judge for a “judicial bypass” that allows an abortion to proceed. “You get small enough counties, and you can figure out who it is,” says Susan Hays, an attorney who handles bypass cases. Another section of the bills would require counties to report rulings on bypass cases. Reporting by county could reveal which judges approve the procedure, particularly in smaller counties. Under these bills, some judges might just automatically rule against young women to avoid scrutiny.

Former Texas Supreme Court Justice Craig Enoch testified last session against a similar bill. “The issue of identifying the judge and tying the judge to the particular outcome I thought posed a significant safety issue without meeting a corresponding, overriding public need,” Enoch says. “Family law cases in general tend to be very dangerous cases for judges.” He notes that family law cases have led to courthouse shootings in both Dallas and Fort Worth.

Shapiro says she doesn’t think judges will be targeted. “It’s just information,” she says.

Breath Deep, Dennis

You’ve heard of ozone, mercury, and lead-nasty pollutants the government closely regulates. But what about 1,3-butadiene, 1,2-dichloroethane, and benzene? These bad boys are members of a class of toxic chemicals that industry is allowed to emit in massive quantities. Now a growing body of research documents just how widespread-and potentially dangerous-these chemicals are.

A new study by the Washington-based U.S. Public Interest Research Group finds-surprise!-that Texas once again tops the toxic heap nationwide. The report, “Toxic Pollution and Health: An Analysis of Toxic Chemicals Released in Communities Across the United States,” analyzes EPA emissions data for chemicals known to cause or suspected of causing cancer, birth defects, and reproductive problems, as well neurological and respiratory damage. The Lone Star State bested all lesser states in the release of recognized carcinogens, with about 10.4 million pounds in 2004-more than double second-place South Carolina. Texas was second only to Tennessee in air and water emissions of recognized developmental toxicants, and second in reproductive toxicants.

The report quantifies the concentration of toxic chemicals in “hot spots.” Four Texas counties-Harris, Galveston, Brazoria, and Jefferson-made the top-five list of counties nationwide with the most carcinogenic emissions to air and water. Six other Texas counties were in the top 100. By zip code, Texas City’s 77590 tops the list. Not coincidentally, petroleum giant BP PLC’s Texas City refinery, where 15 people died in a 2005 explosion, was the No. 1 one emitter of recognized carcinogens to the air and water, including more than 1.9 million pounds of formaldehyde.

The PIRG report follows on the heels of two recent high-profile studies focusing on Houston’s toxic air. One, an epidemiological study of communities near the Houston Ship Channel, links high rates of childhood leukemia to elevated levels of butadiene. A massive report released in September by the Houston Endowment and Rice University found that “the population of Southeast Texas is exposed to disproportionate levels of toxic air pollutants considered to be a health risk.” The authors identified benzene, 1,3 butadiene, formaldehyde, and diesel particulates as “particularly pernicious pollutants requiring priority regulation.” Houston Mayor Bill White has called on key polluters to voluntarily cut toxic emissions or face lawsuits.

“[Toxic air pollution] is a major problem,” says Meg Healey, research director for the Galveston-Houston Association for Smog Prevention. “It rivals ozone and particulates.”

Democratic legislators, led by Houston-area members, have responded this session with a slew of toxic-related bills, which by and large focus on the reduction of toxic air pollution in hot spots. But apparently the legislation is toxic to state Rep. Dennis Bonnen, the Angleton Republican who chairs the misnamed House Committee on Environmental Regulation. At press time, Bonnen had not assigned any of the bills a hearing date.