Tuesday, December 1, 2009
Drug companies have been sued for gambling losses. They may increase the risk among several factors. Plus, in torts, there has to be an injury. The companies were forced to pay for the fun these folks had. They already had a familial tendency, and ready availability of the vice. It is unclear to me whether the medication merely made them more active and likely to do what they had always wanted to do, anyway.
"The self-administered Questionnaire for Impulsive-Compulsive Disorders in Parkinson's Disease (QUIP) takes but several minutes for patients to complete. QUIP is the product of a collaboration between many of the leading investigators in the field of impulse-control disorders (ICDs) in Parkinson's disease, who recognized that it's impractical for busy office-based practitioners to find time to conduct lengthy diagnostic interviews with all of their patients who have Parkinson's, Dr. Daniel Weintraub explained at the annual congress of the European College of Neuropsychopharmacology.
The need for a brief screening instrument was highlighted in a landmark cross-sectional study led by Dr. Weintraub, which demonstrated that ICDs are relatively common in the setting of Parkinson's disease, being present in one in six patients.
Fourteen percent of the 3,090 Parkinson's disease patients under age 75 surveyed at 46 U.S. and Canadian movement disorder centers had at least one of the four major ICDs, involving pathological gambling, compulsive buying, binge-eating behaviors, and compulsive sexual behavior. Comorbidity was common: Among patients with an ICD, 36% had more than one, added Dr. Weintraub, a psychiatrist at the University of Pennsylvania, Philadelphia.
Although ICD is the generally accepted term for these behaviors, they have also been referred to as appetitive behaviors or behavioral addictions. These are not life-long behaviors in affected individuals; rather, they are changes that emerge during the course of Parkinson's disease and cause significant and often enduring distress or impairment.
“These ICDs are not pleasurable activities anymore, but something they feel they need to do,” Dr. Weintraub explained.
Pathological gambling was the first ICD to be described in patients with Parkinson's disease when the association was initially recognized half a dozen years ago, but in fact all four ICDs were roughly equally prevalent in the North American survey.
In a multivariate analysis, by far the strongest correlate or risk factor for ICDs was being on dopamine-agonist therapy, which carried a 2.7-fold increased risk. Indeed, the population-attributable risk of dopamine-agonist treatment was 49%, meaning nearly half of all ICDs could be attributed to the drug therapy.
The ICD risk was not affected by the specific agent prescribed, nor was it dose dependent.
Other independent correlates with ICDs included current smoking, age 65 or younger, levodopa therapy, being unmarried, and living in the United States. Specifically, Americans had higher rates of compulsive buying and gambling, which Dr. Weintraub attributes to the prevailing social/cultural milieu.
A family history of gambling problems was associated with increased rates of all of the ICDs except sexual behaviors. There was no gender difference in the overall rate of ICDs; however, compulsive sexual behaviors were vastly more common among men, and binge-eating behaviors and compulsive buying were significantly more common in women."
Sunday, November 29, 2009
" Nov. 13 (Bloomberg) -- Boehringer Ingelheim GmbH is banking on sex really being all in women’s heads.
The German drugmaker is putting the finishing touches on a pill designed to reawaken desire by blunting female inhibitions. Unlike Viagra, which targets the mechanics of sex by boosting blood flow to the penis, this drug works on the brain.
The desire drug, the focus of a meeting on sexual disorders in Lyon next week, has the potential to revolutionize sexual medicine much as Pfizer Inc.’s blue pill did a decade ago. That could put family-owned Boehringer at the center of a debate about whether the medicine is a chemical shortcut around a complex dysfunction involving body and mind -- or whether disinterest in sex is a legitimate medical condition.
“This drug has the potential to finally open the door to acceptance of the idea that decreased desire can be something that involves a dysfunctional way the brain works, and not only a bad partner,” said Jim Pfaus, a neurologist at Concordia University in Montreal, who conducted early tests of the drug in rats. “Of course it’s in your head.”
The U.S. market for medicines to rekindle female libido could be bigger than the $2 billion a year in U.S. sales for erectile dysfunction treatments because more women report sexual problems, BioSante Pharmaceuticals Inc. Chief Executive Officer Stephen Simes estimated last year."
Friday, November 27, 2009
Insurance Company. Even if doctor owned, its interests lay in churning litigation. The doctor officers get high salaries when lots of premiums are collected. They will oppose any measures that will deter the filing of weak claims.
Insurance Defense Attorney. This defense lawyer gets paid a tiny amount. It is impossible that it even covers overhead. The doctor will learn what it feels like to be an HMO patient, when he gets minimal legal care from this defense lawyer. The latter will always try to get to trial to just break even. He will refuse to file motions to dismiss. He will refuse to seek sanctions against the other side for their misconduct. He will refuse to go after a biased judge. That is where the private attorney comes in. If the doctor complains, he will be dismissed, as not knowing any law. If the private attorney, preferably specializing in legal malpractice speaks, the defense lawyer will take notice, and be less dismissive. The private attorney should repeatedly threaten to sue the defense lawyer in writing every time he refuses to be more aggressive in getting rid of the case.
Plaintiff Attorney. The doctor should read the Rules of Conduct of the state, covering the licensed lawyer. Every utterance that in the least hints at a violation should be reported to the Disciplinary Counsel. If he is licensed in multiple states, file one complaint a month. Prolong the period of investigation. If kept confidential, the complaints have legal immunity. They may be shared with the personal lawyer. Demand total e-discovery of the plaintiff lawyer, including all social network sites back to kindergarten. Try to get a hold of the personal and work computers. The justification is to search for an improper motive for the lawsuit. If child porn, any other shady activity, or prejudiced utterance is found, put into the public record. Report all child porn to the FBI. Try to destroy the life of the plaintiff attorney, just as he doing to the doctor.
Plaintiff. Demand total e-discovery, and deep background checks on the plaintiff and its family.
Plaintiffs are always boohooing on TV. It is unclear if adverse information about the plaintiff and the plaintiff lawyer should not be trumpeted in public. The lawyers say they advise against that because all statements will be used against the defendant at trial. That is an open question.
Plaintiff Experts. There is no recourse outside of the trial against the false testimony of the plaintiff expert. The defense lawyer will accept this person as it comes. No. The defendant is an expert himself, and that should be used. The defendant should read every word the plaintiff expert has ever uttered, in articles, in depositions. If the expert has little experience to offer, the private lawyer must force the insurance company defense lawyer to move to disqualify. If that cannot be done, read every word for contradictory statements to impeach the expert on the stand. The Golden Fleece of research on the plaintiff expert is the utterance of a false fact. Opinion cannot be verified nor contradicted, and is protected by the Free Speech Clause, and several Supreme Court decisions. The assertion of a false fact in any submitted document or testimony is perjury and a crime. Once found, a motion to declare a mistrial should be made, and all legal costs should be assessed to the private assets of the lying witness.
This article advises the standard advice of taking it in the rear quietly.
"Plaintiffs bringing medical liability cases commonly contend they have experienced pain and suffering. Many physicians could say the same about being dragged into the litigation process.
Karen Kohatsu, MD, a San Diego-area obstetrician-gynecologist, was confident she would prevail when she was sued a couple of years ago, but isolation and sleepless nights still reigned throughout the process. The suit was eventually dismissed.
"Self-doubting occurs when you read the summons and depositions from the other side," she said. "The other side makes it sound like you are a terrible person for missing a diagnosis. You feel really alone and have to turn everything inward because you don't have anyone to talk to about it."
Dr. Kohatsu is not alone.
Experts say litigation stress syndrome is a real phenomenon, and one that has a significant impact on physicians. Various emotions, including anger and depression, can strike, along with an inability to concentrate.
When physicians are counseled by their lawyers not to talk about the case, most take that to mean they can't talk about the experience at all, experts said. But increasingly liability insurers and professional medical societies are instituting programs designed to help physicians deal with the emotional rigors of litigation stress.
"In the big picture, we want to normalize the experience of litigation," said Ronald L. Hofeldt, MD, a psychiatrist in Salem, Ore. He serves as a consultant to medical liability insurers and other organizations, helping design retreats and wellness programs that give doctors a venue to air their litigation concerns and help them develop coping skills."
Thursday, November 26, 2009
This decision mandated the reporting of a person-specific threat by a mental patient to the target. It was more lawyer intimidation and take over of clinical care. I doubt a single life has been saved by this decision. The alternative is to rely on clinical judgment. There are 2000 people murdered by paranoid schizophrenics each year. The doctor should have the discretion to call the target, the police, the family of the patient, or to file commitment papers to maintain safety. All these remedies that could prevent harm have been closed off by the lawyer on the bench. The Tarasoff was irrational, then and now. It did generate multiple lawsuits and the plunder of clinical care, and that was its sole real purpose. From Daniel W. Shuman, JD. This article contains statutory reporting requirements by state.
"The case in brief
The plaintiffs in the lawsuit (Tarasoff v Regents of the University of California, 551 P2d 334 [Cal 1976]), the victim’s parents, alleged that a patient (Poddar) communicated his intention to kill their daughter to his therapist, but that the therapist neither warned her nor took other appropriate actions and sought damages for the resulting harm. The de-fendants moved to dismiss.
There are no new facts to add to the recitations found in hundreds of books and articles on Tarasoff, and nobody wants to hear them again. The trial transcript might have provided some new perspective, but there was no trial or evidentiary hearing. According to the Supreme Court of California, there had been a “Complaint” containing the claimants’ version of events. But instead of an “Answer,” which might have admitted or denied the factual allegations of the complaint, the defendants filed a “Motion to Dismiss,” which, according to convention, accepted the plaintiffs’ factual allegations for purposes of the motion only.
The court granted the motion to dismiss, and the plaintiffs took this appeal. No trial. No evidentiary hearings. And no evidence. The report of Poddar’s appeal of his second-degree murder conviction centers on his mental state and consequential culpability (People v Poddar, 103 Cal Rptr 84 [Cal Ct App 1972]). Although there are inherent limits in every case on accurately reconstructing the past, this case was resolved before an attempt to do so. The facts, therefore, that have been passed on from one article to the next may be right or may be urban legend. We do not know.
The legal ramifications
Why does it matter what the sources of the reported facts were anyway? Why should we care whether some came from a journalist, some from a paralegal who worked for the defendants, and some from the authors of the Tarasoff articles’ independent investigation?
First, we have an imperfect but known reliability filter called the “Rules of Evidence” to screen proof of facts in trial. We cannot endorse extra-judicial fact-finding without knowledge of the process and its reliability. Second, cognizant of the limitations of this fact-finding process, the judicial system is explicit about the standard of persuasion, which expresses the level of confidence required on an issue—probable cause, preponderance of the evidence, clear and convincing or beyond a reasonable doubt. Third, the legitimacy of the fact finder in our judicial system—jury or judge—is grounded in constitutional law and public scrutiny.
By what process were these “facts” determined? To what degree of certainty? By what authority? What are the implications for the scholarship perched on this precarious foundation? Before going any further, this is a conversation in which those authors who discovered or applied those facts should be included.
The opinion of the California high court recites the procedural history of the case.10 A civil claim for damages was brought in a California court in Alameda County, against a California university health center psychologist, among others. It alleged that in 1969, a student-patient of the psychologist murdered another student. In response, the defendants filed a motion to dismiss."
Monday, November 2, 2009
"Richard Street sought psychiatric treatment at Community Resource Center Inc. in 2003 after he reported thoughts that his wife was trying to poison him, court records said. Street told the doctors and hospital social workers caring for him that he planned to kill his wife, Teresa Street, and that he wanted to be admitted to a psychiatric facility. He changed his mind during the admitting process and returned home, while continuing his medication treatment.
Three days later, Richard Street was found lying over the body of his strangled wife. He ultimately pleaded guilty to murder and was sentenced to 18 years in prison, records show."
Tuesday, October 13, 2009
2) As a patient I felt physically threatened by the AMA President's public endorsement of Obama Care if it included the Public Option. That is a Trojan Horse for single payer system, that would end all expensive care for babies and and the elderly. Dr. Dolan pointed out that the end of life counseling payment in HR 3200 meant to leave decision making to doctor and patient, and that bureaucrats would not intrude.
3) Since Dr. Dolan had experience working as a doctor in Canada, I took the opportunity to verify some urban legends. Yes. There are provincial caps on health costs. Once reached, doctors get paid 10 cents on the dollar. The cap was reached, and 6000 patients did not get their surgery that year.
Yes. There are personal caps on individual doctor incomes. Say, the doctor is a fast, hard worker and reaches his salary cap in September. What happens the rest of the year? He works for 10 cents on the dollar. Most doctors go on vacation or get really hard to reach the rest of the fiscal year. Only a neurologist may order a brain MRI, which takes place six months after it is ordered. Waiting time to see the neurologist in the first place? Six months. Senator Specter demanded an MRI at the Naval Hospital, finding his own brain tumor, and having it treated. In Canada, he would have died first. In the case of hypocrites like Specter, that system is not all bad.
Dr. Dolan confirmed that people over 55 are cut off from renal dialysis in the Mother Country, England. They have to come up with their own money to pay for more dialysis and to live another week, past their birthday. If President Obama is allowed to prevail on health reform, look for the same in the US. Dr. Dolan believed a second Revolution would happen before that denial of access to care would come here, to the USA.
Sunday, September 13, 2009
It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.
Pennsylvania Rule of Evidence 702 states, "If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." (1). The sociology of expertise now agrees, genuine expertise comes less from credentials, more from a track record and experience (2).
So, in accordance with Pennsylvania Rule of Evidence 702 (1), the treatment records of the plaintiff expert treating patients similar to the plaintiff for similar problems should be obtained in discovery. This discovery motion has justification in that expertise comes from experience and a track record, and less from credentials (2).
All identifiers of these plaintiff expert patients should be blacked out. Payment for the expense of such discovery should the same as charged to the plaintiff. These plaintiff expert treatment records should be reviewed for compliance with the standard of care the plaintiff expert claimed were not met by the defendant.
If the plaintiff expert does not have sufficient records to produce or refuses to produce such records, a motion to disqualify the expert should be filed with the court. He does not have enough experience to be an expert on the narrow subject of the claim. If there are not enough records because the condition is so rare, the rarity serves as a good defense. If the plaintiff expert's own practice records show any deviation from the proposed standard of care, consider filing pretrial motion to impeach the expert for a prior inconsistent statement. If the plaintiff expert is disqualified or impeached, the expert opinion is false testimony. The case should be dismissed in accordance with the Iqbal doctrine, and its limits (3), and all legal costs should be assessed to the personal assets of the plaintiff expert.
A demand for the treatment records of the defense expert should be opposed on the following grounds, 1) the burden of proof is on the plaintiff, and the defense is not even required to produce any testimony; 2) the defense expert may not be making claims as to what a standard of care is, but may be offering alternative causation or unforeseen intervening causes of the injury; 3) even if the defense experts records all comply with the plaintiff experts proposed standard of care, they may reflect defensive medicine or academic teaching duties (extra thorough examinations to teach student doctors), and not acceptance of a standard of care proposed by the plaintiff expert.
1. http://www.pacode. com/secure/ data/225/ chapter7/ s702.html
2. Collins, H., Evans, R. Rethinking Expertise, U of Chicago, Chicago.
3. Find at: http://www.law.cornell.edu/supct/html/07-1015.ZS.html; limits discussed at: http://blogs.wsj.com/law/2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/
Monday, September 7, 2009
If Opposing Experts Testify in Good Faith, the Case Should End for Lack of Jurisdiction and Justiciability
This scenario is a situation where the interest of the defendant and those of the plaintiff attorney are in accord. Both will benefit from not holding trial and avoiding its time and expense. It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.
There are 5 elements that must be proven in a medical malpractice suit, 1) an injury; 2) it was caused by the treatment; 3) nothing broke the chain of causation of the injury, such as patient non-compliance, bad luck events, other people's behaviors, etc.; 4) there is a standard of care; and 5) the treatment that caused the injury deviated from it. Experts are needed to establish the standard of care, and to establish the causation. It is reassuring that when a phenomenon exists and can be measured, the agreement of experts is excellent. Expert testimony has good inter-rater reliability. The court should feel reassured that any disagreement does not come from any inherent nebulousness of the subject matter.
The jury is supposed to find the facts. It is the "trier of facts." It is their job to find that the doctor did something or did not do something, when he did it. Facts.
It should be defense lawyer standard of due care to get the earliest dismissal of a complaint. Good faith (sincere) testimony of opposing experts means a scientific controversy exists, and the rhetoric in a court cannot resolve a scientific controversy (1). Only additional, scientifically valid data may resolve a scientific controversy.
A court should dismiss the case lacking justiciability (the limits upon legal issues over which a court can exercise its judicial authority) as early as possible to avoid wasting its time. Opposite expert testimonies violate both the Frye doctrine (2) used in Pennsylvania courts and the Daubert doctrine (3) used in federal court.
Claims of a deviation from doctor standards of due care within the knowledge of the jury, or having support from only a plaintiff expert, are within the ability of the court to judge, and where only the facts of treatment are in dispute, should proceed.
If an expert is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.
The defendant should discuss with the insurance company defense lawyer making the following preliminary motion, as early as possible after the completion of discovery, to dismiss the claim because opposing experts are testifying in good faith, and the court lacks technical ability or constitutional authority to resolve a scientific controversy.
The court should dismiss the lawsuit if 1) the experts disagree over the standard of due care; 2) agree about the standard, but whether the doctor’s treatment met it; 3) agree about the standard, that the doctor failed to meet it, but disagree over whether the deviation from standards caused the injury or merely preceded it. The jury may judge a claim where opposing experts agree about the standard of care, that if the doctor’s treatment deviated from it, it would have caused the injury, but disagree about the material facts of the treatment (if it happened, when it happened). The jury has the ability to determine what happened, then using the agreement of experts over material opinions about the standard, the hypothetical causation, but disagreement about the facts of treatment.
The court may also accept a claim the standard of care and of causation is within the knowledge of the jury, such as wrong site surgery, or that has no defense expert.
If one of the opposing experts is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.
1. Sancho v. U.S. Department of Energy. F.Supp.2d, 2008 WL 4370009 (D. Hawaii) (Lack of subject matter jurisdiction in a claim that turning on a particle accelerator could create a black hole swallowing the earth). Lack of subject matter jurisdiction may be raised at any point of case. May be raised by the court itself. The Court has ability to answer legal questions not scientific ones. Its decisions are at the point of a gun, and may distort clinical practice if an unscientific opinion prevails. The jury has no ability to judge the science, especially after all with any knowledge have been excluded in voir dire. The jury will favor the more personally likable expert, or apply one of may cognitive biases. These results of lack of subject matter jurisdiction violate the procedural due process right of the civil defendant to a fair hearing.
2. Frye Decision: “...the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Opposite testimony on the standard of care implies lack of “general acceptance.” The experts are there to help the jury apply the standard of care to the facts. If they disagree, they are not helping but confusing the jury.
3. Daubert Decision: “Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.”
Thursday, September 3, 2009
Legal hoaxing is a term that had to be invented to describe the conduct of the PA DOT. It refers to repeated lying by government to the public about the wording of a law.
1) If a patient is not reported within 10 days of a list of diagnoses, the doctor becomes the legal proximate cause of any accident of his patient. This threat repeatedly made in a widely distributed pamphlet cannot be found in the statute. What can be found are footnotes about cases where doctors were sued for injuries caused by their patients, and were found not liable (see Notes of Decisions; Doctor Liability).
2) The doctor has notice of the law, and the law is not in violation of due process (void for vagueness) because the doctor reports the patient after clinical assessment of ability to drive. Clinical assessment is notice, and rebuts the void for vagueness problem. The law states reporting is mandatory after the diagnosis of a listed condition.
3) The state continually threatens prison sentences. It has never prosecuted a doctor. It preserves all laws with a law prohibiting desuetude. If this law itself has never been enforced, does the law against desuetude apply to itself?
A Rule 11 sanction against individual lawyers, albeit agents of the state, does not seem enough.
The best remedy is a per se summary judgment. If a state has to lie about its law, it constructively admits to its invalidity, ineffectiveness, and inability to pass constitutional muster. To deter legal hoaxing.
Sunday, August 30, 2009
Below is the list of conditions, their approximate prevalences during the relevant time period, and the reference where obtained. The small field of mental disorder seems to have a total equal to all combined medical/surgical conditions. ( Mental: 15%; Medical: 13.5%). Given the small threat, it is legally advisable to report all patients to get immunity.
To summarize here.
3. Rheumatic, arthritic, orthopedic, muscular, vascular or neuromuscular disease. Go to page 138 in the PDF box at the top.
4. Cerebral vascular insufficiency or cardiovascular disease which, within the preceding 6 months, has resulted in lack of coordination, confusion, loss of awareness, dyspnea upon mild exertion or any other sign or symptom which impairs the ability to control and safely perform motor functions necessary to operate a motor vehicle.
6. Mental Disorder. Preoccupation, hallucination or delusion.
(iii) Aggressiveness or disregard for the safety of self or others or both, presenting a clear and present danger, regardless of cause.
(6) Periodic episodes of loss of attention or awareness which are of unknown etiology or not otherwise categorized, unless the person has been free from episode for the year immediately preceding, as reported by a licensed physician.
(7) Use of any drug or substance, including alcohol, known to impair skill or functions, regardless whether the drug or substance is medically prescribed.
(8) Other conditions which, in the opinion of a provider, is likely to impair the ability to control and safely operate a motor vehicle.
Wednesday, August 26, 2009
(2) A person with visual acuity of 20/40 or better combined vision and who has visual acuity of less than 20/40 in one eye, may drive without corrective lenses upon determination by a licensed optometrist or ophthalmologist that the person’s combined vision would not be improved by the use of corrective lenses.
(b) Driving with corrective lenses. A person with visual acuity of less than 20/40 combined vision shall wear lenses correcting combined vision to 20/40 or better while driving, except that if correction to 20/40 is not possible, the person may drive in daylight hours only if one of the following are met:
(2) Visual acuity is less than 20/60 combined vision but at least 20/70 combined vision with best correction, but only upon recommendation of a licensed optometrist or licensed physician who has equipment to properly evaluate visual acuity.
(1) A person with visual acuity of less than 20/70 combined vision but at least 20/100 combined vision with best correction may apply for and may be issued a restricted license only upon recommendation of a licensed optometrist or ophthalmologist or licensed physician who has equipment to properly evaluate visual acuity, and only if the following conditions or limitations are satisfied:
(2) Violation of these conditions or limitations shall result in the recall of the restricted license. In addition, an annual review of the person’s accident and violation history will be conducted by the Department and the restricted license may be recalled if the Department determines that the person was involved in an at fault accident or convicted of two moving violations committed within a 1-year period.
(f) Sight in one eye. A person may be adequately sighted in only one eye and still meet the requirements of this section The person’s driving privilege will be restricted to vehicles having mirrors so located as to reflect to the person a view of the highway for a distance of at least 200 feet to the rear.(g) Telescopic lenses. Correction through the use of telescopic lenses is not acceptable for purposes of meeting acuity requirements.
(a) General. A person who has a seizure disorder will not be qualified to drive unless a licensed physician reports that the person has been free from seizure for at least 6 months immediately preceding, with or without medication. A person will not be disqualified if the person has experienced only auras during that period.
(1) A strictly nocturnal pattern of seizures or a pattern of seizures occurring only immediately upon awakening has been established over a period of at least 2 years immediately preceding, with or without medication.
(3) The person previously had been free from seizure for a 6 month period and the subsequent seizure or seizures occurred as a result of a prescribed change in or removal from medication while under the supervision of a licensed physician. This waiver will only be provided upon reinstitution of previous medication.
(4) The person previously had been free from seizure for 6 months and the subsequent seizure or seizures occurred during or concurrent with a nonrecurring transient illness, toxic ingestion, or metabolic imbalance.(c) Reporting requirements for provider. Every provider who treats a person who has experienced a single seizure shall provide, consistent with 75 Pa.C.S. § 1518(b) (relating to reports on mental or physical disabilities or disorders), a report to the Department which shall constitute cause for the Department to direct the person to undergo an examination prescribed under 75 Pa.C.S. § 1519 (relating to determination of incompetency).
(b) Disqualification on provider’s recommendation. A person who has any of the following conditions will not be qualified to drive if, in the opinion of the provider, the condition is likely to impair the ability to control and safely operate a motor vehicle:
(4) Cerebral vascular insufficiency or cardiovascular disease which, within the preceding 6 months, has resulted in lack of coordination, confusion, loss of awareness, dyspnea upon mild exertion or any other sign or symptom which impairs the ability to control and safely perform motor functions necessary to operate a motor vehicle.
(5) Mental disorder, whether organic or without known organic cause, as described in the current Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, 1700 18th Street NW, Washington, DC 20009, especially as manifested by the symptoms set forth in (i)—(iii). While signs or symptoms of mental disorder may not appear during examination by the provider, evidence may be derived from the person’s history as provided by self or others familiar with the person’s behavior.
(6) Periodic episodes of loss of attention or awareness which are of unknown etiology or not otherwise categorized, unless the person has been free from episode for the year immediately preceding, as reported by a licensed physician.(c) Driving examination. A person who has any of the conditions enumerated in subsection (b)(1), (2), (3) or (8) may be required to undergo a driving examination to determine driving competency, if the Department has reason to believe that the person’s ability to safely operate a motor vehicle is impaired. The person may be restricted to driving only when utilizing appropriate adaptive equipment.
Physicians and other persons authorized to diagnose and treat disorders and disabilities defined by the Medical Advisory Board shall report to the Department, in writing, the full name, date of birth and address of every person 16 years of age and older diagnosed as having any specified disorder or disability within 10 days, under 75 Pa.C.S. § 1518 (relating to reports on mental or physical disabilities or disorders).
Monday, August 24, 2009
Ways around Eleventh Amendment suits Against State Officers
1. No bar to suits against state officers to enjoin violation of fed law. No authority to violate fed law from the states, so illegal acts are stripped of state authority. State official violating fed law or con is stripped of state official or representative character. (Ex parte Young, 1908)
2. State officials may be sued for money from their own pockets, suit against officer "in individual capacity." State may indemnify officer without changing that analysis because it does so voluntarily.
3. Fed court may grant prospective relief even if costly in the future (welfare recipients from other state get benefits upon arrival in the new state.) Payment for past injury by state prohibited.
4. Ancillary relief in form of attorney fees OK under Section 1988. Ancillary to prospective relief in the injunction.
5. Hafer v Melo. Officer acting in scope of duty is not enough to bar a suit. His was in official capacity when sued, but in individual capacity when inflicted the injury. Pennhurst: suit OK if suit involves liberty or property interest protected by due process of Fourteenth Amendment.
6. Seminole Tribe. No suit against state if law has its own enforcement mechanism. Rejected federal law allowing violation of Eleventh Amendment. Fed law called for negotiation and submission of dispute to mediator. DOT reg has no such mechanism.
7. Idaho v Coeur D'Alene Tribe. May sue in fed court 1) if no state forum to vindicate federal interest; 2) need fed court to enforce or interpret federal law. In the complaint, PA is not enforcing the fed reg requiring confidentiality of substance abuse. Verizon of MD v PSC of MD. no bar to suit against officers when they violate fed law.
8. Constructive waivers will almost never work.
9. Eleventh limits judiciary, not Congress. Congress may override immunity in statutes adopted under Section 5 of the Fourteenth Amendment, "Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Hutto v Finney. Attorneys fees under Section 1988.
10. Statutes validly enacted under Section 5 of Fourteenth Amendment. City of Boerne v Flores. If government is to burden the free exercise of religion (peyote), government must show compelling government purpose and that it used the least restrictive method to do so. Congress is limited to prevent or remedy rights recognized by the Supreme Court stemming from the Fourteenth Amendment. This was done to preserve the role of the Supreme Court as the interpreter of the Constitution. A state may be sued for violation of a federal law only after meeting the stringent test in Flores. They struck down lawsuits based on federal law in 6 decisions reached 5-4. Rejected suits against states as not fitting into a Section 5 violation: 1) patent infringement suit against a state (state may infringe with impunity); 2) librarians suing for age discrimination (Kimel) barred because only rational basis used for age discrimination - all person will age. Age discrimination by states not widespread anyway; old state workers should sue in state court; 3) same logic used to bar fed discrimination claim based on disability (nurse supervisor lost job after time off for breast cancer), federal government could still sue the state, but no damages could be collected.
Permissible federal suits against states because within the scope of Section 5 of Fourteenth Amendment:
1) Hibbs. May sue state employer for violation of Family Leave Act. Gender triggers intermediate scrutiny, age in Kimel only rational basis.
2) Lane. A paralyzed criminal defendant crawled up the steps of the courthouse due to lack of access required by Title II of the ADA, that prohibits governments from discriminating against the disabled. Access to court is a fundamental right.
3) US v Georgia. Paralyzed inmate could not reach toilet in cell. Degrading conditions cruel and unusual punishment.
One may sue a state for discrimination that receives heightened scrutiny, that involves a fundamental right, or if state discrimination is pervasive.
Criticism: Sovereign immunity is not authorized by the Constitution. The above cases striking down suits against suits are conservative judicial activism.
I would add, sovereign immunity was justified by Henry of Bratton by the sovereign's speaking with the voice of God. This is a psychotic delusional justification. It violates the Establishment Clause. At the policy level, if torts are designed to improve a service and to prevent violence, there is no reason state government should be deprived of the benefits of torts.
Friday, August 21, 2009
Here is a summary from the reply.
1. Venue in the Eastern District of Pennsylvania is improper because Commonwealth
defendants reside in the Middle District of Pennsylvania; moreover, because plaintiff is challenging a PennDOT regulation, all of the events and omissions allegedly giving rise toplaintiff’s lawsuit arose in the Middle District.
a) For venue purposes, the residence of a state agency or state official is the state
capital, even when branch offices of the state agency are maintained in other parts of the state. b) Harrisburg is the logical and administratively convenient location to have the action heard.
2. To the extent plaintiff sues PennDOT under 42 U.S.C. §§ 1983 and 1988, the Eleventh Amendment bars his claims; similarly, PennDOT is not a “person” within the meaning of Section 1983.
3. Federal regulations do not preempt 67 Pa. Code §§ 83.1 et seq. (“PennDOT
4. The PennDOT regulation is not void for vagueness.
5. Plaintiff lacks standing to challenge the legality of the PennDOT regulation.
Saturday, August 8, 2009
I commend you for your courage, and sympathize with your suffering.
Under Obama's Commie Care, others would be denied the care you received. At your age, you would be getting a visit from a hospice counselor and not a second course of chemotherapy. The brain scan would have been denied because no one would be getting a brain scan, or the wait would be for months. Under Obama's Commie Care you would have been long dead.
I intend to publish your procedures and their associated costs. I appreciate your help in advance.
Friday, June 19, 2009
The complaint claims, the PennDOT regulation violates:
a. the Drug Abuse Prevention, Treatment, and Rehabilitation Act,
as amended ,42 C.F.R. §§ 2.1 et seq. and its issuing statute, 42
U.S.C. § 290dd-2;
b. the Supremacy Clause of the Constitution of the United States;
c. the Due Process Clause of the Fifth and Fourteenth
Amendments of the Constitution of the United States;
d. the Freedom of Association Clause of the First Amendment of
the Constitution of the United States;
e. Article 1, § 1 of the Constitution of the Commonwealth of
Pennsylvania, which grants “certain inherent and indefeasible
rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness”;
f. the Americans with Disabilities Act, 42 C.F.R. §§ 12101 et seq.,
as amended by the Americans with Disabilities Act Amendments
Act of 2008, Pub.L. 110-325;
g. Section 504 of the Rehabilitation Act of 1973; and
h. 42 U.S.C. § 1983.