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A heartless distinction

It's not every day that a judge has to pass a death sentence on someone who hasn't even been charged with a crime, but that is what U.S. District Judge Harvey Schlesinger had to do at Jacksonville last week.

The condemned man is James Alderman, a Panama City shipfitter who hasn't been able to work since he slipped in a puddle of oil and tore ligaments in his leg two years ago.

Alderman's bum leg is now the least of his problems. An infection two months ago left him with a failing heart. His doctor says he'll die without a transplant, but the hospitals that could do it want at least $100,000, including $80,000 up front. Unemployed, uninsured shipfitters don't have that kind of money.

Alderman qualifies for Medicaid because he's disabled, but Florida pays for heart transplants for Medicaid recipients only if they're under 21. Federal law requires that. Alderman is 40.

Lawyers from the Children's Transplant Association took Alderman's case to Schlesinger, whose first impulse was to call the age restriction arbitrary. But the more he heard about it, the more he knew he had to rule the other way.

"The court doubts there is a person in the country who would not want the state to fund a heart transplant for the plaintiff," he said. "It is fundamental, though, that the Constitution does not empower a federal court to second-guess state officials charged with the difficult task of allocating limited public welfare funds."

He was probably right as a matter of law. Someone once defined law as the bastard offspring of justice.

Here's the worst of it: If Alderman needed a kidney or bone marrow transplant, which costs less, or even a liver transplant, which costs a lot more, Medicaid would pay.

I talked to Gary Clarke, who runs Florida's Medicaid program, to find out who makes such bizarre distinctions. Who else but the Legislature? Clarke said he could be prosecuted for approving operations the Legislature has not authorized, and despite repeated requests the Legislature keeps saying no to adult heart transplants. It would cost maybe $2-million a year, he said. The last request didn't even come to a vote. Clarke said he doubted that any appropriations committee member would even remember it.

What if the dying patient were a 22-year-old mother of two infants instead of a 40-year old pipe fitter whose kids are 11 and 17? His answer, Clarke said, would have to be the same.

But how can he pay for a $150,000 liver when he can't pay $100,000 for a new heart?

Wonder of wonders, a different federal judge ruled six years ago that the state had to pay for adult liver transplants, and so the Legislature began budgeting the money. You'd think they would have sprung for hearts too, but that might have forced them to repeal Alamo Rent-a-Car's corporate tax exemption.

"Every case is different and frankly in 1986 I'm not sure the legal defense was done appropriately," said Clarke, who thinks the state played its weakest card in arguing that liver transplants were experimental when it was no longer true.

Does he wish Schlesinger had ruled for Alderman?

He paused. He sighed. "It would have been the better public policy position," he said. "It is better for us as a nation for the public to pay for this. Heart transplants generally work. They are a good and acceptable medical procedure. The numbers improve all the time."

Clarke was wrong on one point. Sen. Helen Davis, D-Tampa, who chairs the appropriations subcommittee that deals with Medicaid, does remember his last request. It came during the worst budget crisis in memory. "With dollars so scarce, we had to decide where the money and the outcome would do the most good for the most people," she said.

She'd like to give Clarke's agency the discretion to decide who gets operations and who doesn't. But that would take more money too and she's defending her seat against a no-new-tax Republican who seems to have it in his head that Florida doesn't need any more. He ought to talk to James Alderman. So should George Bush and Dan Quayle.

Alderman spends most days in a Panama City hospital, hoping for a reprieve. His sister, who is a nurse, is trying to get him qualified for Medicare, which would pay for a transplant, but that can't kick in until he has received Social Security disability payments for two years. He had not applied for them because he was receiving worker's compensation for the leg injury.

"Our hopes are not pinned on that," she said Wednesday. "We're really trying to have a massive fund-raiser." Doctors don't think her brother can live two more years without a transplant.

Every American worker is only a slip, a fall or a heartbeat away from being in a similar predicament. Think about that on Nov. 3 and vote as if your life depended on it. It just may.

Martin Dyckman is associate editor of the Times.