Horizon, Host: Ted Simons

January 12, 2006


Host: Michael Grant

Arizona’s hospital emergency room service


Guests:
  • Paul Bender - Arizona State University law professor
  • Todd Taylor - M.D., vice-president for public affairs, Arizona College of Emergency Physicians


View Transcript
Michael Grant:
Tonight on Horizon, the confirmation hearings for Supreme Court nominee Samuel Alito get emotional. We'll get a non-emotional analysis on the hearings from ASU Law professor Paul Bender. And Arizona's hospital emergency room services get a low grade from a National Physicians Group. We'll get into those details. That's next on Horizon.

Announcer:
Horizon is made possible by the friends of channel 8, members who provide financial support to this Arizona PBS station. Thank you.

Michael Grant:
Good evening and welcome to Horizon. I'm Michael Grant. Yesterday's confirmation hearing for Supreme Court nominee Samuel Alito upset his wife to the point of coming to tears. Otherwise, the hearing has been fairly predictable. Here to give his expert analysis of the hearing to this point is Arizona state university law professor Paul Bender.

Michael Grant:
A famous New York Times headline said, enough about you, judge. Now let's talk about me?

Paul Bender: Senators are impossible about that. It's really interesting. It does give some education to the public about constitutional law. About a half the time the senators are wrong about what they say. But it generates some interest in it. But they really learn almost nothing from the nominee, because they just go on and on and on and on and give him a short time to respond. And he's been responding in very noncommittal ways. He's obviously studied very carefully how not to say anything while seeming to say something. He's been responding in very noncommittal ways. He's obviously studied very carefully how not to say anything while seeming to say something. And so the hearings have not to me been as interesting as say the Roberts hearings were.

Michael Grant:
You know the speech phenomena has been growing over the past 20, 30-years. I think part of it is that the United States senators don't get enough face time with the American public in that kind of context. But you were say that you had reviewed some article that actually analyzed how much time Alito talked and how much time the senators talked.

Paul Bender:
I think in the "New York times" this morning they had a chart showing how much time each of the senators talked during his 20 minutes or 30-minutes and how much time Alito talked. In only one case did Alito say more than the senators. In other the other cases the senators spoke for a longer period of time. I'm so surprised about one thing, the republicans seem to be trying as hard as possible to get him to indicate that he would overrule Roe v. Wade by saying, you can overrule cases, can't you? Lots of cases have been overruled. I'm wondering, why are they doing that? The more that it seems that he would vote to overrule Roe v. Wade, the more votes he's going to lose. I'm not sure what those speeches are for. They don't even seem to be, in some cases, design today get the results you want to get. They seem more posturing for your constituents back home.

Michael Grant:
Well, the only speculation I would offer, Paul, you're the analyst, is that -- and I wondered to a certain extent about the same thing -- but of course with Harriett Miers and some of the other thrashing around that surrounded this particular nomination, there was some concern that the conservative base of the republican party had not been well sated by the nomination and perhaps they're just sending smoke signals.

Paul Bender:
They didn't like the Miers nomination. But they were very happy with the Alito nomination. So you would think that they therefore think there is a very good chance he would vote to overrule Roe v. Wade. I'm not sure they should rub everybody's faces in that. It seems to me fairly clear he's going to be confirmed. I wouldn't be surprised if there were 40 or more democratic votes against him. I don't think they'll filibuster. One is Roe v. Wade that there's a good chance they think he'll vote to overrule it. Also, he does not radiate the kind of deep feeling about fundamental values that a lot of people want to see in a Supreme Court justice. I mean, he's so technical. He's so bloodless. He's so analytical. Everything is kind of a mechanical puzzle to work out.

Michael Grant:
Well, John Roberts came across, I think in his process, as much more human. You might agree or disagree at any point with what he was saying. But he certainly seemed a much more engaging personality.

Paul Bender:
He's much more charming but see he also made it more interesting. One of the things that struck me about this is how boring constitutional law is when Sam Alito talks about it. It bothers me for more substantive reasons. When I look at Alito, this is somewhat true of Roberts as well, I say to myself, does this guy have the imagination, the decree creativity to make sure that rights are meaning full as distinguished from the analytical ability to sort of put things in different boxes and show how they relate to each other. Ask yourself, for example, would he have voted for the substantive reapportionment so the big cities have the power. The answer is clearly, no, he would not do that. I'm not even sure he would have voted for Brown v. Board of education. Because that's a big jump. We got to make this right meaningful. He didn't think that way.

Michael Grant:
Of to a certain extent I think counter point to that is what you view and want in a justice. Of course, for those who view constitutional interpretation as putting things in as you put it the right boxes, then you're not necessarily driving for the most creative thinker.

Paul Bender:
Oh, no, that's right. But I think if you think about what the Supreme Court has contributed to American life, it is when they have not just put things in boxes but decided to make things meaningful. Miranda, for example. Someone like Alito would never have voted for Miranda because that goes above and beyond the constitution. The map rules, exclusionary rules is what I don't see him doing. To him it seems the biggest, most important constitutional value is judicial self-restraint. He has almost a fetish about judicial self-restraint. I don't think the country needs a court whose primary value is judicial self-restraint. The court is there for a purpose, in this case to make the constitution meaningful. That doesn't say what you say the constitution means. But if the constitution means that you should be safe from unreasonable searches and seizures you got to look for some way to make sure that right is protected. And I don't think that somebody like Alito thinks that way.

Michael Grant:
Interestingly enough, getting back to just the process point itself, here is a man that served on the third circuit court of appeals for 15 years, I think has written about 400 opinions, voted on I heard a number in excess of 1500. You would think that if you're going to ask questions of anybody with that sort of a body of work that you could spend an awful lot of time asking an awful lot of questions as opposed to making speeches.

Paul Bender:
Right. And I'm not even sure you need to ask questions. Because if you've got all those opinions -- and those opinions cover an enormous range of subjects -- you have a very good idea what this guy's views are. And if you asked him at a hearing like this you're not going to get any more information. The one question I think might be very useful and yet he refuses to answer, is how do you agree with a past decision? Did you agree with the reapportionment cases? Do you agree with Roe v. Wade when it was decided? Did you agree with the eminent domain case. I'm not sure why a nominee can't answer that. Because everybody on the court who voted in k earnings lo we know what they think about it. They're going to be on the court during the time the next case comes up. So why can't a nominee at least discuss what he thinks about past decisions?

Michael Grant:
Doesn't that partly, though, turn, Paul, on to how broadly you want to interpret the judicial cannon which -- it's my paraphrase of it but it basically says you're not supposed to signal how you would vote on a future case if you think giving your opinion on a past case somehow signals how you're going to vote on a future case--

Paul Bender:
It might be a problem. Except everybody on the court who's staying on the court has already done that. So if it's not -- I mean, the people who voted in the Kelo case we know what they thought about that. So they're going to be there when the next imminent domain case comes up. Nobody's troubled about their ethics in participating in that.

Michael Grant:
But they're not part of a confirmation process.

Paul Bender:
But why can't he talk about what he thinks about the decision? If he agrees with that or disagrees with that you get some sense of how he thought about things. It wouldn't in any way prejudice him. He'll say, hey, I got to follow it even if I disagree with it. But he can talk about why he agrees or disagrees with it.

Michael Grant:
This is a two or three act drama that is supposed to play out for the balance of the month. I think the smart money is on confirmation of Judge Alito. In the meantime, of course, the court has continued to run kind of at full strength. Sandra O'Connor is still sitting there. Have you noticed any change in -- for example, have they been backing off a little bit on oral arguments or not waiting for a permanent member of the court to show up?

Paul Bender
: I have not noticed that. I'm not sure it hasn't happened but I don't think it's happened. I think they've just gone along with the regular schedule. If he is confirmed he will join the court in two weeks or whatever. She will then leave the court. He will get to participate in the last three months or the court sits for two weeks a month for 7 months of the year and they end in April. There'll be February, March and April. They'll get to participate in all that. He won't get to participate in the cases that were argued before he took his seat. Justice O'Connor can only participate in the cases that have been decided before she leaves.

Michael Grant:
Is there a possibility you might see a flurry of opinions before the end of this month?

Paul Bender:
I think there's a good chance you might. It's a really interesting question for the people on the Court. Suppose there's a case that's 5-4 on the court and she's now in the 5? What do you do? Do you try to rush it out in order to get did out? Or do you say, well, she's leaving the court. Without her is 4-4. Best thing is to have it reargued with somebody on the court permanently. That's an issue for the court right now. Also she's not quite sure how long it's going to take. Is there going to be a filibuster? For example. This could drag on. I don't think it will. So you're ending up with Justice O'Connor participating in about 10\% of the court's cases, Alito about 40\% of the court's cases and the others will be a court of 8 people. You may get some 4-4 ties in. Those cases it would have to be reargued.

Michael Grant:
Okay. Paul Bender, thank you very much for joining us and sharing your insights on it. We'll undoubtedly get back for --

Paul Bender:
Maybe we can talk about what the court's going to do with its new membership.

Michael Grant:
Emergency medical care in Arizona isn't faring well. In a state-by-state analysis of emergency healthcare systems by the American college of the emergency physicians we're ranked low nationally. The group which includes several Arizona healthcare related associations. The conclusion that Arizona's population growth is outpacing the ability of medical providers to efficiently serve healthcare consumers. More on that report in just a moment. First Merry Lucero looks at house hospitals around the valley are trying to keep up with the demand.

Merry Lucero:
Saint Joseph's hospital and medical center in Phoenix is one of many hospitals across the state racing to keep pace with Arizona's expanding population. Saint joe's is building its new tower.

Leigh Naig:
Saint Joseph's has undertaken a huge building project. We are building a new tower. And associated with that tower which will give us 140 more beds at this facility to accept patients, we are also building a new emergency department which will increase our capacity about two to three times what we currently have. As well as our trauma unit and I.C.U. capability.

Producer:
The tower, due to open in the spring, will have state-of-the-art features.

Leigh Naig:
We're undergoing and we're anticipating moving into those areas probably in June. It will be a staggered approach and starting in April start moving some patients into that building. The emergency department is not anticipated to open until June. So we're still working on those processes. We can do internally, given the space limitations that we have in the current emergency department, to be able to move patients through quickly and make sure that everyone receives safe treatment.

Producer:
Other valley medical facilities under construction due to open in 2006, Arrowhead Hospital in Glendale, adding 140,000 square feet, raising the bed count by 145 at a cost of $55 million. In Good Year, West Valley Hospital's $30 million, 30,000 square foot expansion includes 64 medical-surgical beds. Mercy Gilbert Medical Center's $152 million, 300,000 square foot facility will have 88 acute care beds and a 32 bed E.R. Ben Banner Bay Wood in Mesa is building 123 new beds. The Mayo Clinic's new Phoenix campus, outpatient clinic will increase its capacity by 65 patients a day.

Michael Grant:
Hospitals across the state from Tucson to Yuma to Yavapai County are also expanding. Joining me now to talk more about the emergency care report is Todd Taylor, vice-president for public affairs of the Arizona College of Emergency Physicians. He's also an emergency room physician. Also here is John Rivers, president and CEO of the Arizona Hospital and Healthcare Association. Gentlemen, good to see both of you.

Dr. Todd Taylor:
Good to be here.

Michael Grant:
Todd, you're spending way too much time on this program.

Dr. Todd Taylor:
it's a repeat performance.

Michael Grant:
Interestingly enough we had covered the subject generally of strains on emergency facilities just last week on the program. We were aware, I think, that this report was coming out and had some indication of what the results were going to be? Is my memory accurate?

Dr. Todd Taylor:
We knew the report was going to be at least on this Tuesday but we didn't know what our grades were going to be. I think the healthcare community in Arizona and across the nation has known that the Mercy Care System has been under stress for a considerable period of time. For the first time we now have an objective measure of how stressed we have been. I think it's important for people to understand that this report is not about individual hospitals, physicians, nurses, it is about the system and the support and the resources that the system has to support emergency care.

Michael Grant:
John, I think it is important, though, to put the report in some context. As I understand it, the entire country averaged a C Minus.

John Rivers:
Right.

Michael Grant:
We were at a D Plus. That's not good. But still, that does -- it seems to indicate that emergency facilities nationwide are under considerable strain. Including certainly Arizona.

John Rivers:
Yes. Yes. I'm sure that Dr. Taylor would agree with that as well. The American College of Physicians report does indicate that emergency health services around the entire country are under stress. We have a unique circumstance here in Arizona in that we have one of the most rapidly growing populations in the United States which you mentioned at the very outset. And that is true and that is one of the things making it very difficult for our healthcare system to keep pace with that population growth. So we've got some stresses here that are very unique to our state and that are creating some tough problems for us.

Michael Grant:
What factors played into this grade?

Dr. Todd Taylor:
Each state was graded on four items. One was access to emergency care, which included things like how many hospital bed per population, how many physicians per population, those types of statistics. The second is quality and patient safety, which again did not look at providers or individual facilities but looked at the type of information that is collected and reported to the state to try to help manage these types of situations. The third item is public health and injury prevention, looking at things like seat belt usage, where there were laws that require seat belts, helmets. That type of thing. Then the final one which we got our lowest score on is medical liability environment. In Arizona we have a very difficult business situation for physicians and hospitals to do business because of the liability situation.

Michael Grant:
So really, Todd, what was going on here was an assessment of the atmosphere, the environment in which emergency departments, emergency rooms are operating on a variety of different criteria as you just outlined.

Dr. Todd Taylor:
That's exactly correct. What we do know for a fact is that we have excellent hospital emergency departments. We have excellent emergency physicians and nurses. And when people get to the emergency department, we try to sort people as quickly as we can. We take care of the most serious people first and they get excellent care. The problem is we don't have enough of any of those things. We don't have enough emergency departments. We don't have enough physicians and nurses. And when the flu hits or when something happens, then we get very stressed and we have to start sorting pretty quickly.

Michael Grant:
John, as you know this state used to go through a -- I'm searching for the term. I want to say certificate of need.

Dr. Todd Taylor:
That's the term looking for.

Michael Grant:
Process. That was a long time ago in a gallon axe far, far away. The feel was that the state wasn't doing a particularly good job in analyzing and those kinds of things. Is this report saying anything to us in terms of whether or not that system was better than we thought, worth than we thought?

John Rivers:
I don't think so. The reason is, if you go back to certificate of need which expired in Arizona in march of 1985, C.O.N. as we call it was a system established by the federal government in partnership with states that was designed to constrain hospital expansion, not encourage hospital expansion.

Michael Grant:
Right. You could only have this piece of gear at these three locations.

John Rivers:
Yes. Or if you got assert of approval from the local planning agency. And frankly when I moved to Arizona 20 years ago, in 1986, we had to believe it or not more capacity than I think we really needed at the time. Today, however, we have exactly the opposite problem. We are racing to put enough capacity on line to take care of our communities and our patients in a manner in which we should be taking care of them. So the certificate of need is actually the opposite of what fits in today's environment where we can't expand fast enough. You have to remember that C.O.N. is a constraint on expansion. It's not a stimulus for expansion. So it would be the worst possible anecdote for what we have taking place today.

Michael Grant:
I agree with you that it acted as a constraint. I think in at least theory or concept, though, it was supposed to more qualitatively allocate facilities where you didn't need these three kinds of centers located within ten miles, we ought to space them better. I'm not suggesting to you that's the way the system worked, but I think at least in part that might have been the concept.

John Rivers:
Right. There was a gap there between theory and reality. The theory was exactly what you stated, that it was designed to promote a more rational distribution of healthcare resources within communities for example within Maricopa County and the state of Arizona. The reality, however, was very different. It didn't promote a rational allocation at all. It politicized a process that before then was based on economics, not politics. It was just an abject failure. The big constraint we face together are not regulatory constraints but financial constraints, capital constraints. It takes a long time to build a hospital. It takes a long time to expand a nursing program and it takes a long time to build a medical school and start producing more physicians.

Michael Grant:
Todd, how current was the data used in this report? Sometimes you get these reports and you find out later that, well, it was based on the year 2000 or 1999. What date are we dealing with here?

Dr. Todd Taylor:
There's been some discussion about that. What this report did was utilize the most current data, which they had on all 50 states. The reason to do that was so we had an accurate assessment of all 50 states. Most of the data is from 2003, 2004. Some of the population data came from the 2000 census. But here's the point. If you redid that today, would Arizona do better? I think absolutely we would get a better grade. However, because it was graded on a curve and other states improved, too, we may not necessarily improve our overall grade.

Michael Grant:
So we might see us move to a C. But the rest of the country move to a C Plus.

Dr. Todd Taylor:
Something like that. Or even on medical liability because there have been so many other states recently that improved that, we got a D Minus, we might get a F on medical liability because everybody as outpaced us on that.

Michael Grant:
For example, access to emergency care was a D Plus. What does that mean in this context?

Dr. Todd Taylor:
What a D Plus in access means is that basically what we have all been feeling for a long time, and that is that we don't have enough hospitals per population, not enough hospital beds, not enough nurses or doctors.

Michael Grant:
So that's really going to bricks and mortar and personnel and available on-call physicians, emergency room doctors and those kinds of things.

Dr. Todd Taylor:
That's exactly correct. And I think even to some extent we're not utilizing efficiently the resources that we do have. So we do know that we have almost a 30\% shortage as compares to the national average of physicians in general. But in some specialties such as Gastroenterology we may have a 50\% shortage in this state. We need to reallocate, organize that better so that we can know where these specialists are when needed and get people there efficiently until we can ultimately -- I've said this many times. We can build a hospital two to three years. We could train a pretty good nurse in about 3 to 5 years. It takes 18 years to grow a neurosurgeon. And that's one of the shortages that we have. We're going to have to get them from someplace else or very aggressively utilize what we have available.

Michael Grant:
We saw, John, some of the expansion projects that were gone on around the valley. What is it from an overall view on capacity, new capacity anticipated, where are we there?

John Rivers:
Well, I would say the overall view would be this: here in Maricopa County alone there is about $1.5 billion worth of construction projects that are underway to expand or add existing what we call in-patient or out-patient capacity including E.D. capacity. Since the time the A-CEP report, since the time the data was gathered for this report we've undertaken significant initiatives in Arizona to expand our nursing capacity and our community colleges and universities, significant effort underway to expand our production of doctors. As Dr. Taylor said, though, it takes as long time to produce a physician. But we've got a new medical campus going in downtown. Governor Napolitano just announced she wants to expand funding for graduate -- that's the whole system that Dr. Taylor was referring to of how to train people in specialties. It's expensive and time consuming but here in Arizona everyone has stepped up to the plate and tried to make a difference in those areas.

Michael Grant:
John Rivers, thank you very much for joining us. Dr. Taylor, good to see you again.
You can get transcripts, information about upcoming shows from the website. Find it at www.azpbs.org. Once you get there, scroll down, click on the word Horizon ."

Announcer:
Governor Napolitano gives her fourth state-of-the-state address calling for tighter border security, targeted tax cuts and pay increases for teachers, and at the same time thousands of people rally for immigrant rights, and Senator Democrat leader Harry Reid pays a visit to Phoenix. The Journalist's Roundtable on Horizon.

Michael Grant:
Those subjects next tomorrow, Friday, the Journalists' Roundtable. Thank you very much for joining us this Thursday evening on horizon. I hope you have a great one. I'm Michael Grant. Good night.

samuel Alito


  • Confirmation hearings for Supreme Court nominee Samuel Alito
Guests:
  • Paul Bender - Arizona State University law professor
  • Todd Taylor - M.D., vice-president for public affairs, Arizona College of Emergency Physicians


View Transcript
Michael Grant:
Tonight on Horizon, the confirmation hearings for Supreme Court nominee Samuel Alito get emotional. We'll get a non-emotional analysis on the hearings from ASU Law professor Paul Bender. And Arizona's hospital emergency room services get a low grade from a National Physicians Group. We'll get into those details. That's next on Horizon.

Announcer:
Horizon is made possible by the friends of channel 8, members who provide financial support to this Arizona PBS station. Thank you.

Michael Grant:
Good evening and welcome to Horizon. I'm Michael Grant. Yesterday's confirmation hearing for Supreme Court nominee Samuel Alito upset his wife to the point of coming to tears. Otherwise, the hearing has been fairly predictable. Here to give his expert analysis of the hearing to this point is Arizona state university law professor Paul Bender.

Michael Grant:
A famous New York Times headline said, enough about you, judge. Now let's talk about me?

Paul Bender: Senators are impossible about that. It's really interesting. It does give some education to the public about constitutional law. About a half the time the senators are wrong about what they say. But it generates some interest in it. But they really learn almost nothing from the nominee, because they just go on and on and on and on and give him a short time to respond. And he's been responding in very noncommittal ways. He's obviously studied very carefully how not to say anything while seeming to say something. He's been responding in very noncommittal ways. He's obviously studied very carefully how not to say anything while seeming to say something. And so the hearings have not to me been as interesting as say the Roberts hearings were.

Michael Grant:
You know the speech phenomena has been growing over the past 20, 30-years. I think part of it is that the United States senators don't get enough face time with the American public in that kind of context. But you were say that you had reviewed some article that actually analyzed how much time Alito talked and how much time the senators talked.

Paul Bender:
I think in the "New York times" this morning they had a chart showing how much time each of the senators talked during his 20 minutes or 30-minutes and how much time Alito talked. In only one case did Alito say more than the senators. In other the other cases the senators spoke for a longer period of time. I'm so surprised about one thing, the republicans seem to be trying as hard as possible to get him to indicate that he would overrule Roe v. Wade by saying, you can overrule cases, can't you? Lots of cases have been overruled. I'm wondering, why are they doing that? The more that it seems that he would vote to overrule Roe v. Wade, the more votes he's going to lose. I'm not sure what those speeches are for. They don't even seem to be, in some cases, design today get the results you want to get. They seem more posturing for your constituents back home.

Michael Grant:
Well, the only speculation I would offer, Paul, you're the analyst, is that -- and I wondered to a certain extent about the same thing -- but of course with Harriett Miers and some of the other thrashing around that surrounded this particular nomination, there was some concern that the conservative base of the republican party had not been well sated by the nomination and perhaps they're just sending smoke signals.

Paul Bender:
They didn't like the Miers nomination. But they were very happy with the Alito nomination. So you would think that they therefore think there is a very good chance he would vote to overrule Roe v. Wade. I'm not sure they should rub everybody's faces in that. It seems to me fairly clear he's going to be confirmed. I wouldn't be surprised if there were 40 or more democratic votes against him. I don't think they'll filibuster. One is Roe v. Wade that there's a good chance they think he'll vote to overrule it. Also, he does not radiate the kind of deep feeling about fundamental values that a lot of people want to see in a Supreme Court justice. I mean, he's so technical. He's so bloodless. He's so analytical. Everything is kind of a mechanical puzzle to work out.

Michael Grant:
Well, John Roberts came across, I think in his process, as much more human. You might agree or disagree at any point with what he was saying. But he certainly seemed a much more engaging personality.

Paul Bender:
He's much more charming but see he also made it more interesting. One of the things that struck me about this is how boring constitutional law is when Sam Alito talks about it. It bothers me for more substantive reasons. When I look at Alito, this is somewhat true of Roberts as well, I say to myself, does this guy have the imagination, the decree creativity to make sure that rights are meaning full as distinguished from the analytical ability to sort of put things in different boxes and show how they relate to each other. Ask yourself, for example, would he have voted for the substantive reapportionment so the big cities have the power. The answer is clearly, no, he would not do that. I'm not even sure he would have voted for Brown v. Board of education. Because that's a big jump. We got to make this right meaningful. He didn't think that way.

Michael Grant:
Of to a certain extent I think counter point to that is what you view and want in a justice. Of course, for those who view constitutional interpretation as putting things in as you put it the right boxes, then you're not necessarily driving for the most creative thinker.

Paul Bender:
Oh, no, that's right. But I think if you think about what the Supreme Court has contributed to American life, it is when they have not just put things in boxes but decided to make things meaningful. Miranda, for example. Someone like Alito would never have voted for Miranda because that goes above and beyond the constitution. The map rules, exclusionary rules is what I don't see him doing. To him it seems the biggest, most important constitutional value is judicial self-restraint. He has almost a fetish about judicial self-restraint. I don't think the country needs a court whose primary value is judicial self-restraint. The court is there for a purpose, in this case to make the constitution meaningful. That doesn't say what you say the constitution means. But if the constitution means that you should be safe from unreasonable searches and seizures you got to look for some way to make sure that right is protected. And I don't think that somebody like Alito thinks that way.

Michael Grant:
Interestingly enough, getting back to just the process point itself, here is a man that served on the third circuit court of appeals for 15 years, I think has written about 400 opinions, voted on I heard a number in excess of 1500. You would think that if you're going to ask questions of anybody with that sort of a body of work that you could spend an awful lot of time asking an awful lot of questions as opposed to making speeches.

Paul Bender:
Right. And I'm not even sure you need to ask questions. Because if you've got all those opinions -- and those opinions cover an enormous range of subjects -- you have a very good idea what this guy's views are. And if you asked him at a hearing like this you're not going to get any more information. The one question I think might be very useful and yet he refuses to answer, is how do you agree with a past decision? Did you agree with the reapportionment cases? Do you agree with Roe v. Wade when it was decided? Did you agree with the eminent domain case. I'm not sure why a nominee can't answer that. Because everybody on the court who voted in k earnings lo we know what they think about it. They're going to be on the court during the time the next case comes up. So why can't a nominee at least discuss what he thinks about past decisions?

Michael Grant:
Doesn't that partly, though, turn, Paul, on to how broadly you want to interpret the judicial cannon which -- it's my paraphrase of it but it basically says you're not supposed to signal how you would vote on a future case if you think giving your opinion on a past case somehow signals how you're going to vote on a future case--

Paul Bender:
It might be a problem. Except everybody on the court who's staying on the court has already done that. So if it's not -- I mean, the people who voted in the Kelo case we know what they thought about that. So they're going to be there when the next imminent domain case comes up. Nobody's troubled about their ethics in participating in that.

Michael Grant:
But they're not part of a confirmation process.

Paul Bender:
But why can't he talk about what he thinks about the decision? If he agrees with that or disagrees with that you get some sense of how he thought about things. It wouldn't in any way prejudice him. He'll say, hey, I got to follow it even if I disagree with it. But he can talk about why he agrees or disagrees with it.

Michael Grant:
This is a two or three act drama that is supposed to play out for the balance of the month. I think the smart money is on confirmation of Judge Alito. In the meantime, of course, the court has continued to run kind of at full strength. Sandra O'Connor is still sitting there. Have you noticed any change in -- for example, have they been backing off a little bit on oral arguments or not waiting for a permanent member of the court to show up?

Paul Bender
: I have not noticed that. I'm not sure it hasn't happened but I don't think it's happened. I think they've just gone along with the regular schedule. If he is confirmed he will join the court in two weeks or whatever. She will then leave the court. He will get to participate in the last three months or the court sits for two weeks a month for 7 months of the year and they end in April. There'll be February, March and April. They'll get to participate in all that. He won't get to participate in the cases that were argued before he took his seat. Justice O'Connor can only participate in the cases that have been decided before she leaves.

Michael Grant:
Is there a possibility you might see a flurry of opinions before the end of this month?

Paul Bender:
I think there's a good chance you might. It's a really interesting question for the people on the Court. Suppose there's a case that's 5-4 on the court and she's now in the 5? What do you do? Do you try to rush it out in order to get did out? Or do you say, well, she's leaving the court. Without her is 4-4. Best thing is to have it reargued with somebody on the court permanently. That's an issue for the court right now. Also she's not quite sure how long it's going to take. Is there going to be a filibuster? For example. This could drag on. I don't think it will. So you're ending up with Justice O'Connor participating in about 10\% of the court's cases, Alito about 40\% of the court's cases and the others will be a court of 8 people. You may get some 4-4 ties in. Those cases it would have to be reargued.

Michael Grant:
Okay. Paul Bender, thank you very much for joining us and sharing your insights on it. We'll undoubtedly get back for --

Paul Bender:
Maybe we can talk about what the court's going to do with its new membership.

Michael Grant:
Emergency medical care in Arizona isn't faring well. In a state-by-state analysis of emergency healthcare systems by the American college of the emergency physicians we're ranked low nationally. The group which includes several Arizona healthcare related associations. The conclusion that Arizona's population growth is outpacing the ability of medical providers to efficiently serve healthcare consumers. More on that report in just a moment. First Merry Lucero looks at house hospitals around the valley are trying to keep up with the demand.

Merry Lucero:
Saint Joseph's hospital and medical center in Phoenix is one of many hospitals across the state racing to keep pace with Arizona's expanding population. Saint joe's is building its new tower.

Leigh Naig:
Saint Joseph's has undertaken a huge building project. We are building a new tower. And associated with that tower which will give us 140 more beds at this facility to accept patients, we are also building a new emergency department which will increase our capacity about two to three times what we currently have. As well as our trauma unit and I.C.U. capability.

Producer:
The tower, due to open in the spring, will have state-of-the-art features.

Leigh Naig:
We're undergoing and we're anticipating moving into those areas probably in June. It will be a staggered approach and starting in April start moving some patients into that building. The emergency department is not anticipated to open until June. So we're still working on those processes. We can do internally, given the space limitations that we have in the current emergency department, to be able to move patients through quickly and make sure that everyone receives safe treatment.

Producer:
Other valley medical facilities under construction due to open in 2006, Arrowhead Hospital in Glendale, adding 140,000 square feet, raising the bed count by 145 at a cost of $55 million. In Good Year, West Valley Hospital's $30 million, 30,000 square foot expansion includes 64 medical-surgical beds. Mercy Gilbert Medical Center's $152 million, 300,000 square foot facility will have 88 acute care beds and a 32 bed E.R. Ben Banner Bay Wood in Mesa is building 123 new beds. The Mayo Clinic's new Phoenix campus, outpatient clinic will increase its capacity by 65 patients a day.

Michael Grant:
Hospitals across the state from Tucson to Yuma to Yavapai County are also expanding. Joining me now to talk more about the emergency care report is Todd Taylor, vice-president for public affairs of the Arizona College of Emergency Physicians. He's also an emergency room physician. Also here is John Rivers, president and CEO of the Arizona Hospital and Healthcare Association. Gentlemen, good to see both of you.

Dr. Todd Taylor:
Good to be here.

Michael Grant:
Todd, you're spending way too much time on this program.

Dr. Todd Taylor:
it's a repeat performance.

Michael Grant:
Interestingly enough we had covered the subject generally of strains on emergency facilities just last week on the program. We were aware, I think, that this report was coming out and had some indication of what the results were going to be? Is my memory accurate?

Dr. Todd Taylor:
We knew the report was going to be at least on this Tuesday but we didn't know what our grades were going to be. I think the healthcare community in Arizona and across the nation has known that the Mercy Care System has been under stress for a considerable period of time. For the first time we now have an objective measure of how stressed we have been. I think it's important for people to understand that this report is not about individual hospitals, physicians, nurses, it is about the system and the support and the resources that the system has to support emergency care.

Michael Grant:
John, I think it is important, though, to put the report in some context. As I understand it, the entire country averaged a C Minus.

John Rivers:
Right.

Michael Grant:
We were at a D Plus. That's not good. But still, that does -- it seems to indicate that emergency facilities nationwide are under considerable strain. Including certainly Arizona.

John Rivers:
Yes. Yes. I'm sure that Dr. Taylor would agree with that as well. The American College of Physicians report does indicate that emergency health services around the entire country are under stress. We have a unique circumstance here in Arizona in that we have one of the most rapidly growing populations in the United States which you mentioned at the very outset. And that is true and that is one of the things making it very difficult for our healthcare system to keep pace with that population growth. So we've got some stresses here that are very unique to our state and that are creating some tough problems for us.

Michael Grant:
What factors played into this grade?

Dr. Todd Taylor:
Each state was graded on four items. One was access to emergency care, which included things like how many hospital bed per population, how many physicians per population, those types of statistics. The second is quality and patient safety, which again did not look at providers or individual facilities but looked at the type of information that is collected and reported to the state to try to help manage these types of situations. The third item is public health and injury prevention, looking at things like seat belt usage, where there were laws that require seat belts, helmets. That type of thing. Then the final one which we got our lowest score on is medical liability environment. In Arizona we have a very difficult business situation for physicians and hospitals to do business because of the liability situation.

Michael Grant:
So really, Todd, what was going on here was an assessment of the atmosphere, the environment in which emergency departments, emergency rooms are operating on a variety of different criteria as you just outlined.

Dr. Todd Taylor:
That's exactly correct. What we do know for a fact is that we have excellent hospital emergency departments. We have excellent emergency physicians and nurses. And when people get to the emergency department, we try to sort people as quickly as we can. We take care of the most serious people first and they get excellent care. The problem is we don't have enough of any of those things. We don't have enough emergency departments. We don't have enough physicians and nurses. And when the flu hits or when something happens, then we get very stressed and we have to start sorting pretty quickly.

Michael Grant:
John, as you know this state used to go through a -- I'm searching for the term. I want to say certificate of need.

Dr. Todd Taylor:
That's the term looking for.

Michael Grant:
Process. That was a long time ago in a gallon axe far, far away. The feel was that the state wasn't doing a particularly good job in analyzing and those kinds of things. Is this report saying anything to us in terms of whether or not that system was better than we thought, worth than we thought?

John Rivers:
I don't think so. The reason is, if you go back to certificate of need which expired in Arizona in march of 1985, C.O.N. as we call it was a system established by the federal government in partnership with states that was designed to constrain hospital expansion, not encourage hospital expansion.

Michael Grant:
Right. You could only have this piece of gear at these three locations.

John Rivers:
Yes. Or if you got assert of approval from the local planning agency. And frankly when I moved to Arizona 20 years ago, in 1986, we had to believe it or not more capacity than I think we really needed at the time. Today, however, we have exactly the opposite problem. We are racing to put enough capacity on line to take care of our communities and our patients in a manner in which we should be taking care of them. So the certificate of need is actually the opposite of what fits in today's environment where we can't expand fast enough. You have to remember that C.O.N. is a constraint on expansion. It's not a stimulus for expansion. So it would be the worst possible anecdote for what we have taking place today.

Michael Grant:
I agree with you that it acted as a constraint. I think in at least theory or concept, though, it was supposed to more qualitatively allocate facilities where you didn't need these three kinds of centers located within ten miles, we ought to space them better. I'm not suggesting to you that's the way the system worked, but I think at least in part that might have been the concept.

John Rivers:
Right. There was a gap there between theory and reality. The theory was exactly what you stated, that it was designed to promote a more rational distribution of healthcare resources within communities for example within Maricopa County and the state of Arizona. The reality, however, was very different. It didn't promote a rational allocation at all. It politicized a process that before then was based on economics, not politics. It was just an abject failure. The big constraint we face together are not regulatory constraints but financial constraints, capital constraints. It takes a long time to build a hospital. It takes a long time to expand a nursing program and it takes a long time to build a medical school and start producing more physicians.

Michael Grant:
Todd, how current was the data used in this report? Sometimes you get these reports and you find out later that, well, it was based on the year 2000 or 1999. What date are we dealing with here?

Dr. Todd Taylor:
There's been some discussion about that. What this report did was utilize the most current data, which they had on all 50 states. The reason to do that was so we had an accurate assessment of all 50 states. Most of the data is from 2003, 2004. Some of the population data came from the 2000 census. But here's the point. If you redid that today, would Arizona do better? I think absolutely we would get a better grade. However, because it was graded on a curve and other states improved, too, we may not necessarily improve our overall grade.

Michael Grant:
So we might see us move to a C. But the rest of the country move to a C Plus.

Dr. Todd Taylor:
Something like that. Or even on medical liability because there have been so many other states recently that improved that, we got a D Minus, we might get a F on medical liability because everybody as outpaced us on that.

Michael Grant:
For example, access to emergency care was a D Plus. What does that mean in this context?

Dr. Todd Taylor:
What a D Plus in access means is that basically what we have all been feeling for a long time, and that is that we don't have enough hospitals per population, not enough hospital beds, not enough nurses or doctors.

Michael Grant:
So that's really going to bricks and mortar and personnel and available on-call physicians, emergency room doctors and those kinds of things.

Dr. Todd Taylor:
That's exactly correct. And I think even to some extent we're not utilizing efficiently the resources that we do have. So we do know that we have almost a 30\% shortage as compares to the national average of physicians in general. But in some specialties such as Gastroenterology we may have a 50\% shortage in this state. We need to reallocate, organize that better so that we can know where these specialists are when needed and get people there efficiently until we can ultimately -- I've said this many times. We can build a hospital two to three years. We could train a pretty good nurse in about 3 to 5 years. It takes 18 years to grow a neurosurgeon. And that's one of the shortages that we have. We're going to have to get them from someplace else or very aggressively utilize what we have available.

Michael Grant:
We saw, John, some of the expansion projects that were gone on around the valley. What is it from an overall view on capacity, new capacity anticipated, where are we there?

John Rivers:
Well, I would say the overall view would be this: here in Maricopa County alone there is about $1.5 billion worth of construction projects that are underway to expand or add existing what we call in-patient or out-patient capacity including E.D. capacity. Since the time the A-CEP report, since the time the data was gathered for this report we've undertaken significant initiatives in Arizona to expand our nursing capacity and our community colleges and universities, significant effort underway to expand our production of doctors. As Dr. Taylor said, though, it takes as long time to produce a physician. But we've got a new medical campus going in downtown. Governor Napolitano just announced she wants to expand funding for graduate -- that's the whole system that Dr. Taylor was referring to of how to train people in specialties. It's expensive and time consuming but here in Arizona everyone has stepped up to the plate and tried to make a difference in those areas.

Michael Grant:
John Rivers, thank you very much for joining us. Dr. Taylor, good to see you again.
You can get transcripts, information about upcoming shows from the website. Find it at www.azpbs.org. Once you get there, scroll down, click on the word Horizon ."

Announcer:
Governor Napolitano gives her fourth state-of-the-state address calling for tighter border security, targeted tax cuts and pay increases for teachers, and at the same time thousands of people rally for immigrant rights, and Senator Democrat leader Harry Reid pays a visit to Phoenix. The Journalist's Roundtable on Horizon.

Michael Grant:
Those subjects next tomorrow, Friday, the Journalists' Roundtable. Thank you very much for joining us this Thursday evening on horizon. I hope you have a great one. I'm Michael Grant. Good night.

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