Page 3


d’s 1999 11, Enter a new Observer subscription or renew your old one before July 4, 1999, and you’ll be eligible to win round-trip airfare to Austin and a celebratory lunch with the one and only Molly at Threadgill’s World Headquarters compliments of The Texas Observer. Molly promises to be witty, charming, and completely Y2K-compliant. This is your last chance before the new millennium to lunch with Molly Ivins! Don’t miss it! Subscription orders must be received and paid in full by July 4, 1999. The Observerwill provide a round-trip ticket for one from any airport served by Southwest Airlines; arrival and departure will be for the same day. \(Austin residents will receive subscriptions of one or more years. One entry per one-year subscription; two per two-year; three per three-year. Recipients of gift subscriptions will be entered in the drawing unless otherwise specified. DIALOGUE NO DEFENSE I recently read your article about Senator Harris \(“Senator Harris for the Defense,” by Nate Pack, mentioned in your article. My two sisters and I have been involved in this suit against Watson Memorial Nursing home since early 1996. We feel that because of the influence that Senator Harris has on the judges, this case has dragged on for way too long, because of the pbstponements, and the denied motions when motions of the same subject matter and type have been granted when Senator Harris has not been involved. the Watson Memorial Nursing home for only five weeks, but when admitted to the Harris Methodist Hospital, he was so badly dehydrated, malnourished, and had pressures sores so bad that gangrene and infection consumed his entire body. No human being should have to endure that kind of death. As in your article confirms, Ms. Friend has, moved to squash the D.H.S. records and the photos they took. I am a very angry person at this time about these nursing home matters. Thank you so much for your article. Ann Bowling Via internet READING THE BILL The Observer quotes Elliott Naishtat as saying, “In S.B. 190, we did a 180-degree turn, and made it clear that survey reports, written findings, and investigations of complaints are admissible….” That’s not what the bill says. On page 68 of S.B. 190: “apply in an enforcement action or related proceeding in which the state or an agency or political subdivision of the state is a party.” Line 5, page 68, says, “documents that an institution has violated a standard for participation in the state Medicaid program or the assessment of a monetary penalty by the department or the payment of a monetary penalty by the institution is not admissible as evidence in a civil action.” Nothing is admissible in a civil action. I was the only guy in Texas who said S.B. 190 was giving away the store to the nursing home industry. See if you can get A.A.R.P. or Naishtat to comment on this. Sam Perlin, Chair Texans for the Improvement of Long Term Care, Inc., Houston WITNESS FOR THE DEFENSE Is it really proof of wrongdoing when a nursing home inspector or other law enforcement person puts an allegation in a report? You print a government report in which an unnamed government official says somebody else said he saw something bad happen in a nursing home. You argue that the report should be admitted in court to prove the nursing home did something wrong. Why shouldn’t the witness just come to court and testify about what he saw? Everyone has the right to confront and cross-examine witnesses, even accused criminals, even accused nursing homes. Phyllis Schunck Austin Nate Blakeslee responds: As far as it goes, Sam Perlin’s quote from page 68 of S.B. 190 is accurate, but he leaves out the key passages. The subsection he quotes from begins [emphasis added], “Except as provided by a department survey … is not admissible as evidence in a civil acproceeding in which the state or an agency or limit the testimony of a department surveyor or bar the admission into evidence in a civil action of a written finding, survey report, complaint investigation, incident investigation, or inspection report of the department….” Gayle Friend’s legal obfuscations notwithstanding, the intent of the language is quite clear, which is why the nursing home industry wants it changed. Phyllis Schunck seems to confuse evidence with proof. Whether a given piece of evidence such as a survey report proves wrongdoing is up to the judge or jury to decide. Survey reports provide eyewitness accounts of conditions inside nursing homes, from state employees who are trained to identify violations of regulations designed to protect patient health and safety. Nursing homes have the opportunity to rebut the reports, both at the time they are written, and in court. Schunck’s suggestion that D.H.S. employees be required to appear to defend their reports is an argument commonly employed by the industry to help stifle effective litigation. \(In fact, legislation passed in 1995 required such appearances, effectively reinclude the industry’s argument that a loophole in state law precludes the attorney general’s office from representing the state in civil and criminal cases against nursing homes. Elliott Naishtat has filed a bill to seal that loophole, as HEADWATERS HISTORY Alexander Cockburn has never shied away from bending the facts to make a point. However, in “Who Killed David Chain?” \(February have bent the truth to the breaking point. In his most offensive prevarication, Cockburn claims that the Sierra Club retreated in the face of Charles Hurwitz’ threatened takings lawsuit. Anyone who has been paying attention to the Headwaters campaign, which apparently doesn’t include Cockburn, knows that we never considered the takings lawsuit a real threat. had ever dared dream,” we have always been, and still are, very critical of the huge sums that Hurwitz has extorted from taxpayers in exchange See “Dialogue,” page 31 2 THE TEXAS OBSERVER MAY 14, 1999