updated 1/4/2005 1:48:01 PM ET 2005-01-04T18:48:01

Guest: Thomas Mahnken, Raghida Dergham, Terri Sloyer, Todd Smith, Kevin

Kearney, Dylan Malone

DAN ABRAMS, HOST:  Coming up, the U.S. sends hundreds of millions in aid and mass of military resources to areas devastated by the tsunami, but will that help our image in the country with the largest Muslim population in the world? 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  That country, Indonesia, hardest hit by the tsunami.  It‘s also a key focus on the war on terror.  And why aren‘t certain Arab nations where we often hear talk about Muslim solidarity doing more to aid their brothers and sisters? 

Plus, from closed hospital wards to doctors who are shutting their doors to patients, medical malpractice lawsuits are threatening health care in America.  Our weeklong series on the way lawsuits are changing the nation begins today. 

And she was the most anticipated witness in the Scott Peterson trial -the other woman.  Amber Frey speaks out for the first time in an exclusive interview. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket:  It just keeps getting worse, the toll of death and destruction from the tsunamis, the devastated coastal areas in parts of South Asia and East Africa.  The latest, a total of more than 139,000 dead with most of the casualties clustered in four countries. 

Indonesia, the hardest hit, with more than 94,000 dead; Sri Lanka, more than 30,000, 5,000 still missing; India, nearly 10,000 dead, 4,000 missing; Thailand, over 5,000 deaths.  At the White House today, President Bush was joined by former Presidents Clinton and George H.W. Bush.  The ex-presidents will lead a private fundraising campaign to raise millions more. 

Before we talk about how all of this might affect the war on terror and why many Arab nations have been seemingly stingy in their aid, we head to the Indonesian province of Aceh where the tsunami was at its most devastating.  Aid only now reaching some of the people who need it the most. 

ITV‘s Dan Rivers has the story. 

(BEGIN VIDEOTAPE)

(SOUNDS)

DAN RIVERS, ITN REPORTER (voice-over):  They‘ve waited a week for this and now their patience is exhausted. 

(SOUNDS)

RIVERS:  Hunger and desperation turning this rice distribution point into an ugly scrum.  The aid is now arriving, but more is needed as Banda Aceh City starts to turn from the horror of the dead to the plight of the living.  But there is still chaos here—just look at this extraordinary scene.  Looters that tried to steal gas from this troller, a subsequent fire finished off what remained of the mosque.  The airport is now the nexus of the multinational aid operation, food and medicine arriving from all over the world. 

ADMIRAL DOUG CROWDER, U.S. NAVY:  We‘re going fly wherever we‘re

needed to get supplies to people back and forth to the people most affected

by this. 

    

RIVERS:  But in rural Aceh, it‘s a difference story.  Chanfo (ph) was a town of just 20,000, but now it has 6,000 refugees living in its midst.  Villages have donated clothes for the survivors of the tsunami.  This poor inland community happy to help their devastated coastal neighbors.  Hamid Ali (ph) spent four days walking here after losing his wife and children.  He‘s staying here with his brother who‘s opened the doors to his tiny house. 

(on camera):  Like many homes in this village, this house has just two rooms that‘s home to 20 refugees relying on the charity of distant relatives. 

(SINGING)

RIVERS (voice-over):  Mothers sing their babies to sleep, but this nightmare will not be ended by simple lullaby.

Dan Rivers, ITV News, Aceh. 

(END VIDEOTAPE)

ABRAMS:  Our question:  Will this incredible show of support, much of

it to the world‘s largest Muslim country, Indonesia, help change the minds

of millions in the Arab Muslim world who say the U.S. is an enemy of Islam

·         some who do?  And some who may even help the U.S.—will it help the U.S. in the war on terror? 

“My Take”—I‘m certain the enemies of the U.S. will figure out ways to twist the U.S. efforts and in the end, the U.S. will receive little to modest appreciation in the broader Muslim world, I mean as a whole.  This even though some wealthy Arab Muslim nations have offered really only a little bit of aid. 

Thomas Mahnken is a visiting fellow at the Merrill Center for Strategic Studies at the Johns Hopkins University School of International Studies and Raghida Dergham is a senior diplomatic correspondent with the Pan Arab newspaper Al-Hayat and an MSNBC analyst.  Good to see you both. 

All right, Mr. Mahnken, bottom line, do you think that is this going to make a difference in the long run in terms of evaluating the war on terror in the broader Muslim world? 

THOMAS MAHNKEN, JOHNS HOPKINS UNIVERSITY:  Well, I think the honest answer is it‘s hard to tell.  I think as you correctly said, the hard-core Muslim extremists will, you know, will spin this.  They, you know, they don‘t give us credit for helping starving Somalis in the ‘90‘s.  They don‘t give us credit for siding with Albanian Muslims against the Serbs in the Balkans.  I think the more important thing is what the perception is of sort of the average Indonesian, the people who are sort of sitting on the fence trying to make their way. 

ABRAMS:  And what do you think that—the result of that will be?

MAHNKEN:  Well, the bottom line is we should be doing this because it‘s the right thing to do. 

ABRAMS:  That‘s right.  That‘s right. 

MAHNKEN:  And it can only help.  I don‘t see how our relief efforts can hurt us in the long run.  At the very worst, it will be neutral. 

ABRAMS:  Raghida, what about—you know let‘s separate it out.  We‘re talking about Muslims as a whole.  But we‘re talking about Muslims in two very different parts of the world.  We‘re talking about Southeast Asia.  We‘re also talking about the Arab world. 

Let me talk to you about the Arab world for a moment.  Is the U.S., do you think, going to get any kudos, any credit for not just the amount of money that has been—we talk about the numbers—and I‘ll go through those in a minute, but also the military aid that has been sent there as well? 

RAGHIDA DERGHAM, AL-HAYAT DIPLOMATIC CORRESPONDENT:  I think so.  I think when it comes to a tragedy of this magnitude, everyone who contributes and puts themselves out to really help out, I think that credit will go to them and the United States now is doing as much as possible and I believe that the fact that al Qaeda and its types of Islamist and extremists, they are bankrupt and this sort of tragedy shows the extent of their bankruptcy because they are not able to offer aid to this tragedy.  So therefore, I think they will be weakened.  But it doesn‘t mean automatically that it will be forgiven as far as what the United States does simply because the argument has always been with policies, not only with what Americans are all about—because actually not at all what Americans are all about. 

ABRAMS:  Right.  But that sounds to me like you‘re saying sure, everybody is going to get credit but the U.S. is still going to be...

DERGHAM:  Will get bigger—will get bigger credit because it‘s giving 350 million now whereas as you mentioned the Arab countries I think several Arab countries are offering tens of millions and that is not enough.  That does not compare to what the United States is doing. 

ABRAMS:  Here‘s what former President Bush had to say on this issue. 

(BEGIN VIDEO CLIP)

GEORGE H.W. BUSH, FORMER PRESIDENT:  In some areas in the Muslim world, we‘re not fondly looked upon today, but I think that for the most part this will elevate the standing of the United States, but that‘s not why we‘re doing it.

(END VIDEO CLIP)

ABRAMS:  Mr. Mahnken, how do you translate that, though, to the people who are there on the ground?  I mean does it spread by word of mouth?  Is it by media?  I mean how is it that people are going to assess here‘s who was helping and here‘s how much each one was helping when I‘m talking about people in Indonesia. 

MAHNKEN:  Yes, well look, I think it‘s trite but true that action speak louder than words.  I think what people will see is food, water, stamps—you know, donated by the people of the United States.  What they‘re already seeing are helicopters off the Abraham Lincoln battle group, soon marines coming to their rescue to help out a lot of people. 

(CROSSTALK)

ABRAMS:  Let me just read you...

(CROSSTALK)

ABRAMS:  ... there was a point you made earlier that I want to follow up on and that is the amount of money that‘s come from Arab nations.  Algeria, $2 million; Bahrain, two million; Kuwait, 10 million; Libya, two million; Qatar, 25 million.  Actually, that was a significant amount comparatively in terms of GDP.  Saudi Arabia, 10 million; United Arab Emirates, two million.  I mean a country like Saudi Arabia only giving $10 million. 

DERGHAM:  Yes, that is not enough.  That is clearly not enough...

ABRAMS:  And no one will hold it against them, though, right?

DERGHAM:  I think, look, we don‘t know if there is some coming out later on simply because this disaster needs billions of dollars to come.  It is not enough what has been collected.  And I want to also give credit to those other countries who have come along with the United States are giving in large amounts such as Japan.  India is being quite helpful.  And the United Nations is coordinating this in a very impressive way. 

So I think people will look at the totality.  They‘re not going to look at this as only anti-American or pro-American.  I think it‘s—they are in too much pain to summarize this as anti-American or pro-American...

ABRAMS:  But again—right.  I‘m asking you specifically about the Arab world.  I mean...

DERGHAM:  And I said this is not good enough.  Their contribution in my view is really pitiful.  It should be much more...

ABRAMS:  Why is that?  I mean why isn‘t there a sense there—these are our Muslim brothers and sisters.  We hear about that again and again and again—our Muslim brothers and sisters.  And yet now, the largest Muslim population in the world has been hit with this disaster and they‘re not really ponying up. 

DERGHAM:  There may be—and this is only a may be—by lack of aid going.  I know that normally Muslims—I have received several e-mails from organizations trying to solicit raising money...

ABRAMS:  Right.

DERGHAM:  ... on individual levels, on...

ABRAMS:  Private is different.  Right.

DERGHAM:  ... so I‘m pretty sure a lot of that will be coming through.  And I am pretty certain even the Saudis and other will come up with more money.  I think they should act immediately also is to help Somalia—this is one of the...

ABRAMS:  Yes.

DERGHAM:  ... people who are really working for the United Nations disaster relief right now.  Let them help their own blood—Arab brothers. 

ABRAMS:  Yes.

DERGHAM:  And I think really it‘s—it is shameful if the aid stops at this level. 

ABRAMS:  All right.  We shall see.  Thomas Mahnken and Raghida Dergham, thanks very much.  Appreciate it. 

MAHNKEN:  Thank you. 

ABRAMS:  If you‘re looking out—if you‘re looking for ways to find how you can help in the relief effort, log on to our Web site, abramsreport.msnbc.com.  Click on ways to help disaster victims. 

Coming up, a judge in Washington refuses to grant a domestic violence victim a divorce from her husband.  He says because the woman is pregnant he‘s required to protect the rights of her unborn child. 

Plus, many doctors are now refusing to work with high-risk patients or even giving up practicing medicine all together because of lawsuits.  We‘re going talk to a doctor who‘s been sued nine times.  He‘s now taking on the trial attorneys. 

And when Amber Frey took the stand in Scott Peterson‘s case, everyone wanted to hear what she had to say.  Now she‘s talking for the first time about her ordeal.  We‘ve got the exclusive.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, a pregnant woman who was the victim of domestic violence at the hands of her husband wants to divorce him.  He didn‘t challenge it.  A judge says, no, not until after she gives birth.  Talk to her attorney up next. 

(COMMERCIAL BREAK)

ABRAMS:  It was one Spokane, Washington woman‘s Christmas wish, to be divorced and for about four days around Halloween it was granted until a judge found out that she was pregnant, decided to rescind the divorce he had ordered just before.  Family law Judge Paul Bastine was quoted in “The Seattle Times” saying that the law says the child must not be illegitimatized and that a child‘s paternity must be determined before a divorce can be granted. 

Complicating the matter, the pregnant woman—there she is - Shawnna Hughes, says the father of her unborn baby is not her husband.  Her husband‘s in jail finishing out a one-year sentence for domestic abuse.  He abused her physically and emotionally.  In a complaint for order of protection she said in one case he yanked the rear-view mirror from my car and when I became upset by that, he began choking me while I was driving.  I was approximately four months pregnant at the time.  Again when I was six months pregnant, he threw me into a wall and began choking me. 

“My Take”—Washington divorce law is pretty clear.  If there is no objection to the divorce, as was the case here, the court shall grant the divorce.  Now the judge seems to rely on a different provision of Washington law that says if you were the husband and a child is born within 300 days of the end of the marriage, you‘re legally the dad—unless that‘s challenged. 

So what?  How would the divorce change who‘s the father?  The only issue they can really argue is a technicality that at the time the divorce petition was filed, the mother didn‘t know she was pregnant and so neither did dad.  But since that time jailbird dad has not suddenly expressed a desire to prevent this divorce.  I say let the mother have her divorce now. 

Joining me now, Terri Sloyer, the lawyer who‘s representing Shawnna Hughes, who is the pregnant woman in this case.  Ms. Sloyer, thanks very much for coming on the program.  As you can see, I‘m on your side on this one but let me ask you this.  Your client is expecting apparently in March or April, so what is the big deal about waiting another couple of months for the divorce to be finalized? 

TERRI SLOYER, ATTORNEY FOR PREGNANT WOMAN:  Well I think from my client‘s perspective, the real issue is to be psychologically bound to a man that has abused her repeatedly.  She has been separated from him for almost two years now and she wanted even prior to becoming pregnant with this child had already started the divorce action and wanted to be legally free from him.  And as the commissioner who originally signed the decree of disillusion and was aware that she was pregnant, we filed a affidavit informing the court that her position had changed, that she was pregnant since the filing of the petition.  That commissioner did in fact grant the decree of dissolution.  It was only a day or so later that the order was vacated. 

ABRAMS:  So let‘s be clear.  It was the commissioner who initially dissolved the marriage and then a judge stepped in? 

SLOYER:  That is correct. 

ABRAMS:  OK.  It‘s important to clarify what I said earlier.  You know, one of the things I think that the judge and the state would say is, look, when the—when you ask for the divorce, she didn‘t know she was pregnant and therefore dad didn‘t know she was pregnant and, you know, so dad doesn‘t come up and object to it.  But dad might object to it if he knows mom is pregnant.  Does that matter? 

SLOYER:  Well, it doesn‘t matter because under Washington law, he will be considered the child‘s presumed father until there‘s a formal judicial proceeding changing that.  So whether or not they are married, he will remain the presumed father.  That was a reform in Washington law in the early ‘70‘s so that we could stop stigmatizing children as illegitimate. 

There is currently under Washington law no such thing as an illegitimate child.  All children who are born have a father and a mother.  It may be a presumed father or an alleged father but the status of the child is not dependent upon the marital status of the parents. 

ABRAMS:  I mean look, you know, I‘m going to ask you one more technical question.  You know, but for me sort of the broader picture is what you were pointing out before, which is the woman has been abused who wants to get a divorce from her husband and it seems to me that the state and certainly the judge in this case is putting the interest of the unborn child ahead of the mother.  I mean you want to say there‘s an interest of the unborn child, you can argue about that.  But the bottom line is it seems to me that the judge is putting the interest of that unborn child‘s ahead of the mother‘s, right? 

SLOYER:  Well, actually I think that the result is actually opposite of that when you really consider what we‘re saying to an abuser who has a victim, if you can get your victim pregnant, you can keep her legally bound to her. 

ABRAMS:  Wait a second...

(CROSSTALK)

ABRAMS:  ... but he could stay married to her if he want—if he objected, she wouldn‘t automatically be able to get a divorce.  I mean the divorce wouldn‘t be so easy if he objected to it, so you can‘t just say it‘s to bind him.  It he wants to bind it, he could. 

SLOYER:  Well, two things—first of all, legally, after 90 days of marriage if he denied that the marriage was irretrievably broken, that 90 days would only be extended for a period of time to allow them to go to counseling if the court so ordered.  But under a no-fault divorce, as we have here in Washington, once a party has filed and alleged that the marriage is irretrievably broken and the other party doesn‘t deny it or if you do deny it...

ABRAMS:  Right.

SLOYER:  ... there may be a delay, then the court is mandated to enter a decree of dissolution. 

ABRAMS:  Right.

SLOYER:  The concern in this case has to do with the possible physical violence that may be perpetrated upon...

ABRAMS:  He‘s in jail...

SLOYER:  ... now not only the woman...

ABRAMS:  He‘s in jail, though. 

SLOYER:  Well he is in this case, but there are other women that similarly find themselves situated that their abuser is not in jail and so now we‘ve not only...

ABRAMS:  I don‘t understand...

SLOYER:  ... put the wife or the mother at risk...

ABRAMS:  ... but I don‘t understand your position.  The bottom line is you‘re saying that if the other party doesn‘t object to it, meaning if the dad is the abuser, doesn‘t object to it, then they should be able to dissolve the marriage.  But the dad who‘s the abuser could object to it and that wouldn‘t solve your problem. 

SLOYER:  The dad could—in this case, I want it to be clear—the father has never—or the husband, Mr. Hughes, has never appeared...

ABRAMS:  Right.  No, I know...

SLOYER:  He had 20 days to file an answer and he‘s not done that. 

ABRAMS:  Right...

SLOYER:  So in this case, she was entitled to technically a dissolution by default. 

ABRAMS:  Right.  No, look, I agree with you in this particular case.  I just think that the broader issues you‘re talking about I think you‘ve got to be careful mixing apples and oranges, but I‘m on your side on this one.  Terri Sloyer thanks a lot for coming on the program.  Appreciate it.

SLOYER:  Right—well I—thank you. 

ABRAMS:  Across the country, doctors treating high-risk patients are getting out of the game saying the high cost of malpractice insurance and the threat of lawsuits are pushing them into early retirement.  One Maryland obstetrician sued nine times is now leading an effort to cap malpractice awards.  We‘re going to have a big, big debate on this issue. 

And we remember—how can you forget her—I don‘t even need to tell you who she is, do I?  Oh, Amber.  She‘s speaking out.  She‘s written a book.  We‘ve got the exclusive interview coming up. 

(COMMERCIAL BREAK)

ABRAMS:  We‘re back.  Lawyers v. America.  Tonight we begin a weeklong look at the way lawsuits are changing the nation, often for the worst.  Starting with malpractice, malpractice lawsuits, the threat of lawsuits skyrocketing insurance rates forcing many doctors to relocate or give up their high-risk specialties altogether, making it harder for Americans to find necessary medical care.  The American Medical Association says 20 states are facing this crisis with another 24 headed in that direction. 

In Florida, at least 11 hospitals have been forced to close their obstetrics units or reduce obstetric services and 10 have eliminated or reduced neurological services.  In three years, Kentucky lost 36 percent of its practicing neurosurgeons, 29 percent of its general surgeons, 25 percent of its obstetricians.  Between 1997 and 2002, Pennsylvania lost approximately 600 general surgeons, 145 orthopedic surgeons, 35 neurosurgeons.  Philadelphia alone lost approximately 450 doctors.  Those are just some examples. 

The question, of course, is who to blame.  The doctors blame the lawyers for bringing so many lawsuits.  Lawyers blame insurance companies for trying to make a profit.  And insurance companies blame the doctors and the lawyers.  “My Take”—no question some people deserve to collect from negligent doctors, but the system in place now is too much like a lottery.  There has got to be a better way to punish the bad doctors and protect the good while maintaining the quality of care Americans have come to rely on. 

I say there should be no cap on actual economic damages.  Patients who are treated in a negligent manner must be able to recoup their cost.  Pain and suffering, though, should be limited and punitive damages, damages designed to punish should go to the state rather than individuals.  That would teach the doctors a lesson without allowing the lawyers to win jackpot verdicts. 

Joining me now is medical malpractice attorney Todd Smith, who‘s also the president of the Association of Trial Lawyers of America.  He says insurance companies are to blame for the problems, not the trial lawyers.  Dr. Kevin Kearney who specialized in high-risk obstetrics for more than 25 years until he says nine lawsuits and high insurance rates forced him to close the doors. 

Gentlemen thanks very much for coming on the program.  Appreciate it. 

All right, Mr. Smith, what do you think I‘m getting wrong here? 

TODD SMITH, MEDICAL MALPRACTICE ATTORNEY:  Well, Dan, I think you begin with the wrong concept when you talk about a lottery.  I don‘t think anybody who has been seriously injured and is simply seeking compensation and obtains compensation for disability for a lifetime, pain and suffering for a lifetime, has won a lottery in some respect.  So the idea that we use these kinds of words with that I think is clearly wrong.  And the idea that we would in some way say that a permanent injury—let‘s say for a child who suffered a paralysis at birth due to a negligent delivery at the time of the delivery for 75, 80 years of life, there should be a cap on that disability for the rest of his or her life?  I think...

ABRAMS:  But here‘s the problem...

SMITH:  ... that‘s clearly wrong and then—and we should let a jury decide it as we have for 200 years.

ABRAMS:  Here‘s why I call it a jackpot. 

SMITH:  Sure.

ABRAMS:  Because there‘s no rhyme or reason behind the numbers and that‘s what I think is a big problem here, is there‘s no way to truly assess these numbers and in some cases you get these astronomical numbers.  Do you disagree with me about punitive damages as well?  That the punitive damages should go to the state—damages designed to punish should go to the state instead of to the individuals? 

SMITH:  Yes, it‘s a completely separate issue. 

ABRAMS:  It is.

SMITH:  Punitive damages have nothing to do with the medical malpractice issues that we‘ve been talking about.  So, you know, punitive damages are not the subject in this particular...

ABRAMS:  Well they can be...

SMITH:  No, not really.  No one is out to punish doctors.  What we‘re seeking is compensation for those who have been seriously injured because of negligence by either a physician, a hospital, an HMO...

(CROSSTALK)

SMITH:  ... that‘s what we‘re after, compensation...

ABRAMS:  Mr. Kearney, I can tell you as a matter of fact that I know that I‘ve seen cases when they‘ve asked for punitive damages in the context of medical malpractice case.  I‘m not going say that it‘s the most prominent issue in this debate, but it‘s not irrelevant.  Mr. Kearney? 

KEVIN KEARNEY, M.D., COULD NOT AFFORD LIABILITY INSURANCE:  Sorry, I think first of all (UNINTELLIGIBLE) you‘re looking at these birth injury cases, it is very easy to look at the outcome and make a decision that everything should be judged on that basis alone.  And there is very much a situation here of Monday morning quarterbacking. 

ABRAMS:  But see that‘s a different—he‘s—let me take a break here...

(CROSSTALK)

ABRAMS:  ... when I come back, what I want to do is I want to come back to you on this because I think what Mr. Smith is saying is something very different.  He‘s saying when there‘s an agreement by a jury that there was negligence, what do you do?  But we‘ll talk about that in a minute. 

Coming up, we‘ll bring in a father who‘s trying to sue the doctor he says made a mistake that ended up killing his 4-year-old son. 

And for over two years, I‘ve been waiting to hear from her.  Now Amber Frey has finally broken her silence in an exclusive interview.  She talks about her relationship with Scott Peterson, even talks about their first date. 

(BEGIN VIDEO CLIP)

AMBER FREY, SCOTT PETERSON‘S FORMER GIRLFRIEND:  ... it is strange.  I had some—I had butterflies before I came here.  He almost seemed a little more nervous than I did.

(END VIDEO CLIP)

ABRAMS:  More from Amber Frey coming up.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, from closed hospital wards to doctors who say they‘re turning away patients because of the high cost of malpractice insurance—lawsuits threatening health care in America.  But is it really the lawyers who are to blame?  First, the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

SEN. JOHN EDWARDS (D), FORMER VICE PRESIDENTIAL CANDIDATE AND TRIAL

ATTORNEY:  Let‘s keep cases out of the system that don‘t belong in the system that are driving up the costs. 

(END VIDEO CLIP)

ABRAMS:  Senator John Edwards not really seeming to take a position one-way or the other in the particular sound bite on the issue that we‘re talking about.  A weeklong series, Lawyers v. America.  Today we‘re focusing on medical malpractice.  Are lawsuits with huge payouts often to the lawyers, the only answer.  There‘s got to be another way to weed out the bad, protect the good. 

Back with us, malpractice attorney Todd Smith, Dr. Kevin Kearney who says he lost obstetrics practice because of high insurance rates and joining us, a father who lost his 4-year-old son from alleged malpractice during birth, Dylan Malone.

All right, thanks to all of you for coming—all right, Dr. Kearney, let me just come back to what we were talking about...

KEARNEY:  Sure.

ABRAMS:  ... before the break.  And that is what Mr. Smith is saying is—you‘re saying, well, it‘s a lot of Monday morning quarterbacking.  That‘s what lawsuits are all the time.  I mean lawsuits are Monday morning quarterbacking.  You‘re going back and you‘re looking at what happened and why it happened.  If there is negligence, what Mr. Smith is saying is, well, if the doctors did something wrong, there are people out there who are going to have lifelong disabilities and as a result someone other than them should be have to pay for it.

KEARNEY:  Well I question whether an actual, in fact, the jury system allows a fair trial because it is very difficult for a jury not to be prejudiced by a neurological injury in a baby or a child who walks into the courtroom with a wounded wing, so to speak.  And that you can actually get a trial—or get a verdict against the doctor. 

ABRAMS:  But you know what the response is going be to that, right?  I mean...

KEARNEY:  Sure.

ABRAMS:  ... it‘s going to be that‘s a very condescending, materialistic way to view our legal system. 

KEARNEY:  But when you—but at the same time, one of the ways I have been reviewed by many times by my peers, and I‘ve always been told that I do practice good medicine.  I don‘t think I would standing here before you or sitting here before you tonight if I felt in any way that I was a bad doctor.  If I was, it would be an awful lot easier in ways.  I‘d pack my bags and go home.  And—but I really do believe that the system has not worked.  And for many, many reasons the system is broken... 

ABRAMS:  Yes.

KEARNEY:  ... throughout the health care system.

ABRAMS:  And isn‘t that—I‘m going to come to Mr. Malone in a minute.  But Mr. Smith, isn‘t that the problem?  I mean you can talk about individual cases and you‘ll be able to make a very strong argument.  But when you look at it on a systemic level, we‘ve got a big problem with the legal system and these malpractice cases. 

SMITH:  Well I think you‘re wrong, Dan, and I think Dr. Kearney is wrong.  Let me just give you an example.  The president of the United States is going down to Madison County, Illinois Wednesday of this week and apparently he‘s going to be talking about medical malpractice and the kind of problems that exists down there.  The most recent data out of Madison County, Illinois is that in the eight years from 1996 to 2003, there were only four, only four plaintiff‘s verdicts, verdicts for the plaintiff.  In other words...

(CROSSTALK)

SMITH:  ... one every other year...

ABRAMS:  Why does that tell us anything about what‘s going on in the country? 

SMITH:  Well, according to those that are promoting this legislation, Madison County is one of our big problems in this country. 

ABRAMS:  Yes, well...

SMITH:  The judicial hellhole they call it, Dan.  So there‘s your judicial hellhole.  Four cases, two of which were under $100,000...

ABRAMS:  Look, I think to deny that there‘s a big problem out here I think is just disingenuous...

SMITH:  Then you‘re not asking the right questions, Dan.  Listen, Dan...

ABRAMS:  The right question is, is there a big problem...

SMITH:  The data, Dan...

ABRAMS:  Yes.

SMITH:  ... is what I just gave you. 

ABRAMS:  No, the data you gave me is from Madison, Illinois...

SMITH:  Four cases...

ABRAMS:  That‘s the data you just gave me.  That‘s not relevant to the country...

SMITH:  ... in eight years really.

ABRAMS:  OK, so that‘s—so the answer is—Madison, Illinois is the answer.  OK, fine...

(CROSSTALK)

SMITH:  That‘s where the president is going to talk about his case. 

ABRAMS:  But that‘s not what I‘m talking about.  But let me let Mr.  Malone in here.  I‘m sure he‘ll support your point, Mr. Smith.  Mr. Malone, tell me about what happened in your case. 

DYLAN MALONE, SON DIED FROM ALLEGED MALPRACTICE:  First, I know Mr.  Smith already called you on it, but I can‘t let you get away with that line about the lottery winner mentality.  I mean Dan, if you think that Ian won a lottery, that‘s an incredibly insensitive thing to say.  You know, he had dozens of seizures a day.  He had to have four surgeries a year to keep a tube in place in his intestines so that he could eat.  And I would gladly trade all the money that will ever possibly change hands over that suit 100 times over, plus give up everything else that I owe...

ABRAMS:  I know you...

MALONE:  ... in order to have a healthy child.  So, you framed the context unfairly by using that term...

ABRAMS:  No, but Mr. Malone, and this is why I invited you on the program because I wanted to make sure we had a human element to this story to be fair in putting this story into context.  But the bottom line is that I think that you can pull out isolated cases like yours, which are absolutely heartbreaking and say, well this is therefore how we have to run the system as a whole.  And maybe we can look at it and say, boy this is one of those examples where we have to make sure that there‘s a system in place where Mr. Malone can be compensated and, yet, protect doctors like Dr. Kearney from being repeatedly sued. 

MALONE:  Well, I don‘t know anything about Dr. Kearney‘s history.  Nine suits, he said, is a lot.  That‘s several times what‘s normal for an obstetrician over the course of a career.  So—but I will say this.  I think you‘re looking at some of the wrong aspects of the problem...

ABRAMS:  To be fair to Dr. Kearney, five of the lawsuits were dropped or dismissed.  Two settled.  Two went to court.  So...

MALONE:  That‘s still...

ABRAMS:  OK...

MALONE:  ... extraordinary.  But—he may be an excellent physician, I don‘t know.  Most physicians are excellent.  It‘s just a tiny fraction of the physicians who are responsible for the lion‘s share of the injuries, which really gets to the core of my argument, which is that you‘re looking at it the wrong way.  Everything that‘s been discussed so far on the show is about where to put the burden after an error has occurred.  Who should pay?  And I think that the best way to lower the cost of medical malpractice insurance is to lower the incident of malpractice in the first place. 

ABRAMS:  Yes and I think that‘s a fair point.  And the question, of course, is how do we do that.  I‘ve got to let Mr. Kearney respond.  Very quickly, Dr. Kearney...

UNIDENTIFIED MALE:  Sure.

KEARNEY:  Well certainly.  I mean 57 percent of the malpractice premium dollars go to the legal profession.  That‘s a huge waste of health care dollars if you ask me.  Secondly, I think that when we look at these terrible injuries, they don‘t—they will occur.  Cerebral palsy, for example, which is advertised all over our television sets has been something for which you should call a lawyer for.  Over 95 percent of it has nothing to do with the obstetrical business. 

ABRAMS:  Let me just—I‘m out of time Dr...

KEARNEY:  Sure.

ABRAMS:  ... sorry, Mr. Smith, final word on this.  What about the legal fees?  I mean shouldn‘t they...

SMITH:  Well no, that statistic is terribly misleading...

ABRAMS:  But just in general...

(CROSSTALK)

ABRAMS:  ... don‘t refer to his statistic.  Very quickly, legal fees...

SMITH:  ... let me give you an example.  In Illinois...

ABRAMS:  You keep giving me examples.  Respond to the system as a whole... 

SMITH:  What can I tell you other than examples that—examples in Illinois, a major state in this country, a 20 percent fee is by statute, is what it is...

ABRAMS:  But wait a sec...

SMITH:  ... so to suggest 57 percent...

ABRAMS:  ... you know as well as I do...

SMITH:  ... is the common fee...

ABRAMS:  ... that the average case gets about 33 percent...

SMITH:  No, it does not Dan...

ABRAMS:  What does the...

(CROSSTALK)

ABRAMS:  What does the average case get Mr. Smith...

SMITH:  No, it does not.  My experience is the 20 percent in Illinois, frankly.  That‘s what it is...

ABRAMS:  In Illinois, again, I‘m trying to broaden it out...

SMITH:  A major state...

ABRAMS:  OK, it is a major state. 

SMITH:  Yes.

ABRAMS:  It is not the country. 

SMITH:  Well I understand that. 

ABRAMS:  All right.  Todd smith, thank you so much for coming on the program. 

(CROSSTALK)

ABRAMS:  Dr. Kearney and Dylan Malone, Dylan, good luck to you...

MALONE:  Thank you.

ABRAMS:  ... and thank you very much for taking the time.  I really appreciate it. 

MALONE:  Thank you. 

KEARNEY:  Thank you.

ABRAMS:  Coming up, Amber Frey, Scott Peterson‘s girlfriend, one of the most important witnesses at the trial.  She‘s speaking out...

(COMMERCIAL BREAK)

ABRAMS:  You saw it right there.  Amber Frey is speaking out.  NBC‘s “Today” show‘s Matt Lauer got the exclusive. 

(BEGIN VIDEOTAPE)

MATT LAUER, CO-ANCHOR, “TODAY”:  Have you had to hold a lot inside over these last two years? 

FREY:  To some degree, yes. 

LAUER (voice-over):  For two years, she‘s been silent.  Amber Frey, the other woman in the Scott Peterson case.  The star witness at the Peterson murder trial.  Starting today she‘s telling her story in her first ever TV interview, the truth about her relationship with Scott Peterson.  At times, she says, she was terrified. 

FREY:  I think I lost a moment of my life because—all I remember is shaking.  I was shaking and I couldn‘t speak. 

LAUER:  At other times, she was angry. 

FREY:  Scott Peterson was a pathological liar to me.  Nothing he said was the truth. 

LAUER:  But when she first met him, she was charmed.  It was a blind date on November 20, 2002. 

FREY:  He opened the door.  I thought he was handsome.  He had a nice smile.  I stood up.  He kind of gave me a little peck on the cheek. 

LAUER:  Amber‘s best friend had set them up when Scott was passing through Fresno on business. 

FREY:  He said, you know, he goes it was strange—I kind of—I had some—I had butterflies before I came here.  He almost seemed a little more nervous than I did. 

LAUER (on camera):  You know, sometimes when someone says something like that, it can seem a little bit like a line. 

FREY:  No, it seemed—it came across very genuine. 

LAUER:  It didn‘t sound like he was some kind of a smooth operator-type guy? 

FREY:  No, I didn‘t sense that from him at all.  No. 

LAUER (voice-over):  They went to dinner at a Japanese restaurant.  Scott arranged for a private room, just the two of them.  The conversation and the wine flowed freely. 

(on camera):  Did he talk to you about his relationships that he had had? 

FREY:  You know we really didn‘t talk a whole lot about relationships. 

I believe I asked if he‘d ever been married and he said no. 

LAUER (voice-over):  Scott told her he traveled for business all over the world.  So much so that he never settled down, no wife, no girlfriend, not even a dog. 

FREY:  He said he lived in Sacramento.  That he also had a condo in San Diego.  And he had found a couple that wanted to purchase the condo furnished and with a Land Rover.  So I thought wow, that‘s a pretty good deal. 

LAUER:  Amber had no way to know it, but almost none of that was true.  Scott Peterson wasn‘t single.  He didn‘t live in Sacramento.  He didn‘t own a condo in San Diego.  Only one detail was factual and it would later seem chilling.  The Land Rover he said he wanted to sell did exist—it belonged to his wife, Laci. 

LAUER (on camera):  So at this point in the date, scale of one to 10, how was it going?

FREY:  I felt like it was going really well, so if I had to, you know, put a number on it, I mean it was maybe a 10.  I, you know...

LAUER:  You were having a good time. 

FREY:  I was having a good time.  Conversation was good.  He was very, you know, very much a gentleman. 

LAUER (voice-over):  When the restaurant closed, they went to a bar.  They slow danced until closing time.  Then they drove back to Scott‘s hotel. 

(on camera):  It‘s been well reported that you spent the night. 

FREY:  Yes. 

LAUER:  You didn‘t think maybe I‘ll never hear from him again? 

FREY:  I had a good feeling and sensed that I would hear from him again.  That it wasn‘t just going to be a one-night stand. 

LAUER (voice-over):  Amber did see Scott again several times over the next three weeks.  He was funny, gracious.  He all but swept her off her feet.  She started to wonder if she‘d found the perfect guy until Scott came to her on December 9 and revealed that he‘d been married. 

(on camera):  He basically said at that time in that conversation, you know, I haven‘t been completely honest with you.  I lost my wife.  Did you ask him how he lost his wife? 

FREY:  I didn‘t feel it was appropriate to pry on how JUST because he

was so emotional.  It‘s almost like putting salt on a wound.  You know,

he‘s sitting, you know, right in front of me here and we‘re holding hands

and he‘s like, you‘re not angry?  And I said no, how could I be angry?  I -

·         you know, I can understand. 

LAUER (voice-over):  But Amber had suspicions too, which only mounted when Scott told her he was leaving on a long trip.  His stories of where he was going and when didn‘t seem to add up. 

(on camera):  You thought this guy might be lying to you again?  That something wasn‘t as it seemed. 

FREY:  Right. 

LAUER (voice-over):  A friend of hers on the Fresno police force offered to check Scott out.  He called back at 1:40 in the morning on December 29 and told her that he believed her boyfriend, Scott Peterson, was the same Scott Peterson who had been in the news the last few days, a man who was still married, a man whose wife was pregnant and went missing on Christmas Eve.  Amber called the Modesto police. 

FREY:  I felt like I was going 100 miles per hour just talking to this woman.  She was taking my statement down. 

LAUER:  Amber Frey was about to find herself in the middle of the biggest murder case in the country. 

(END VIDEOTAPE)

ABRAMS:  You can catch the rest of Matt‘s exclusive with Amber Frey tomorrow night on a special edition of “Dateline” at 10:00 Eastern, 9:00 Central.  And you won‘t want to miss my interview with Amber Frey for the full hour next Monday—a week from tonight.  We‘ll also ask her your questions.  E-mail them to us at abramsreport.msnbc.com. 

Coming up, you‘d think that the L.A. City Council wouldn‘t have to be forced to listen to a group of people from a local strip club. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, why Chief Justice William Rehnquist‘s year-end report about the role of the courts is worth a read for everyone.  I‘ll tell you why.  It‘s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—why Supreme Court Chief Justice William Rehnquist‘s 2004 year-end report is worth reading and repeating when it comes to the role of the courts.  With judges coming under attack from both the right and the left, Rehnquist, in what could be his last year-end report reminds us that the courts were not designed to rubberstamp congressional action.  This in the wake of dangerous efforts by Congress to restrict courts‘ abilities to hear certain cases and even congressional critiques of the reasoning courts have used. 

Rehnquist said—quote—“Criticism of judges and judicial decisions is as old as our republic, an outgrowth to some extent to the tensions built into our three branch system of government.  By guaranteeing judges life tenure doing good behavior, the Constitution tries to insulate judges from the public pressures that may affect elected officials.  The Constitution protects judicial independence not to benefit judges, but to promote the rule of law.  Judges are expected to administer the law fairly without regard to public reaction.  Congress‘ authority to impeach and remove judges should not extend to decisions from the bench.  No doubt the federal judiciary, he wrote, including the Supreme Court will continue to encounter challenges to its independence and authority because of dissatisfaction with particular decisions or the general directions of its jurisprudence.  Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world.”

Amen Justice Rehnquist.  Everyone at this program is wishing you a speedy recovery. 

I‘ve had my say, now it‘s time for “Your Rebuttal”.  On our New Years Eve show, we looked ahead at the big legal stories of 2005.  Top of the list, Michael Jackson.  The prosecutors there hope to introduce information about past allegations of sexual abuse to show a pattern of behavior.  Jackson‘s attorney said the money paid in two other cases was because of pressure from Jackson‘s record company. 

I said I don‘t buy the excuse that Jackson would settle for $20 plus million because the record company told him to do it.  I also said I expect Kobe Bryant to settle out of court. 

Caitlin Besler (ph) in Mountain View, California thinks that makes me a hypocrite.  “If I understood your comments correctly, you would advise Kobe Bryant to settle his civil case for over $7 million even though you believe he would have been acquitted?  But you seem to find it implausible that Michael Jackson would have settled out of court to avoid airing even nastier allegations unless he were actually guilty?” 

Not quite Caitlin (ph).  I said I expect Kobe Bryant to settle even though, yes, I think he would have been acquitted.  Bryant has even apologized for his behavior.  He clearly seems to think he did something wrong, even if it wouldn‘t have been considered criminal by the justice system. 

Jackson settled for 20 million plus and about two million in two cases.  It doesn‘t mean he would have been or should have been convicted in each case, but it sure says to me he did something wrong.  You can‘t settle for that kind of money and expect that people will accept that you just did absolutely nothing wrong. 

Sue Sierra, “You said there‘s no excuse for Michael Jackson to have settled, but what‘s the excuse for this family?  If your child was molested, what would you have done?  Settled?”

From Grand Blanc, Michigan, Olivia Jackson.  “What parents would accept payments for negligence if their child was actually molested?”

I think most parents would choose to spare their child from having to testify in a criminal case.  In fact, looking at it purely from the best interests of the child, settling would provide more for the child than forcing the case—criminal case to trial.  Again, that says nothing about Jackson‘s guilt or innocence in this case, but I certainly don‘t blame the parents for helping keep their kids off the witness stand. 

Now to our “OH PLEAs!”.  This one comes from Los Angeles where a state appeals court has just slapped the City Council for not paying attention when a strip club came asking to have its hours extended.  Maybe it is because it happened on the council‘s “Hawaiian Shirt Day”.  Those wacky councilmen when the Blue Zebra‘s Club lawyer asked for the right to allow stripping past 2:00 a.m., the council wasn‘t listening closely. 

As you can see in this video, the club‘s lawyer shot himself.  When all the smoozing was over, the council voted unanimously against letting the club stay open.  So the Blue Zebra sued, saying the council had a legal duty to pay attention to what they‘re being told.  The court of appeals agreed, saying the Blue Zebra‘s lawyer deserved to be heard.

That does it.  I had a funny line in there.  We‘re out of time, though, so we had to cut it out. 

That does it for us tonight.  Coming up next, “HARDBALL” with Chris Matthews.  I‘ve got to drink some tea.  See you later. 

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

END   

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