Friday, November 26, 2010

Court Overturns Vermont Prohibition of Doctor Prescription Tracking

The decision is here. "Because we find that section 17 is an impermissible restriction on commercial speech under Central Hudson, we reverse and remand."

These prohibitions are part of a witch hunt against the prescribing of brand name medications to dark skinned people on Medicaid. They want to interfere with their use in drug sales, pitching, and detailing to doctors.

The drug company sales aside, these databases serve another purpose. They are the best indicator of a standard of care. If hundreds or thousands of doctors are prescribing the same thing, the same way, for the same off label purpose, then that is the very best, empirically based indicator of the standard of care.

Innocent defendants in medical malpractice suits, if accused of misusing medication, can get the database. It will show many doctors do the same thing. It is the best indicator. Guidelines represent the medicine of the past.

Friday, November 5, 2010

Update: Meeting with Pharmaceutical Company Corporate Counsel Next Week

As a courtesy, I sent a list of topics of interest ahead of the meeting. They canceled the meeting.

A couple of days before, a downtown Philly jury found the company not guilty of any fraud. These jurors are totally biased against corporations and anyone productive. For that verdict to have been handed down, the case must have been very weak. Judge just cancels the verdict. He says, the corporation will pay $millions anyway. He thus illustrates one of my points that the adversary must be counterattacked, at least with demands for total e-discovery.

I  plan to buy a few shares of every drug company and then to file intervention claims when they decide to settle or to cave in to the enemies of clinical care.

Friday, October 22, 2010

Judge Allows Deposition of Plaintiff Lawyer

I have advocated the legal accountability of the adversary and of the judge.The defense bar has an economic conflict of interest. It can replace the client rather easily. If the prosecution is deterred, it loses its job.

Court Allows Chevron to Depose Lead Plaintiffs Lawyer in Ecuador Case

Judge based his ruling on 'extraordinarily revealing' outtakes from the documentary 'Crude'

The American Lawyer
October 22, 2010 
A federal judge in Manhattan has taken the extraordinary step of granting Chevron's motion to depose a counsel for its adversaries in the massive toxic tort litigation over oil contamination in Lago Agrio, Ecuador.
If Southern District of New York Judge Lewis A. Kaplan's ruling Wednesday in In re Application of Chevron Corp., 10 MC 00002, stands, Chevron's counsel from Gibson, Dunn & Crutcher and counsel for two former Chevron lawyers facing criminal charges in Ecuador will be able to ask lead plaintiffs attorney Steven Donziger questions, under oath, about his alleged attempts to influence a supposedly neutral expert appointed by the Ecuadorean court to offer a global damages assessment. The judge also has ordered Donziger to produce documents related to his interactions with the expert.
Kaplan based his ruling on evidence Chevron produced from outtakes of the documentary "Crude," which chronicles the Lago Agrio case. He called the outtakes "extraordinarily revealing."
"The outtakes contain substantial evidence that Donziger and others were involved in ex parte contacts with the court to obtain appointment of the expert; met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs' own consultants; and wrote some or all of the expert's final report that was submitted to the Lago Agrio court and the Prosecutor General's Office, supposedly as the neutral and independent product of the expert," Kaplan wrote.
Moreover, the judge concluded, the outtakes contained evidence that Donziger lobbied for criminal charges against the former Chevron lawyers in order to pressure Chevron in the Lago Agrio case.
Based on that evidence, the judge found, the need to obtain evidence from Donziger outweighed the general prejudice against deposing adversary counsel in civil litigation, particularly because Donziger was not acting only as a lawyer for the Ecuadorian claimants (whom he cannot actually represent in Ecuador).
"His principal functions have included lobbying, media and press relations, and politics," Kaplan wrote. "He has acknowledged in the outtakes that the purported civil litigation in Ecuador 'is not a legal case. It's a political battle' in which 'we need to get the politics in order in a country that doesn't favor people from the rainforest.'"

Sunday, October 3, 2010

DEA to Chronic Pain Patients: Suffer.

But the paper work always comes first. I would like to see organized medicine protect clinical care from these heartless lawyers setting sick DEA managing pain and interfering with care. They should join in a massive class action lawsuit, with a Section 1983 claim against the DEA. First, the DEA should be enjoined from enforcing its arbitrary and lawyerized rules. Second, the DEA should be made to pay for the damages in pain caused by their arbitrary delay. To deter. 

A Battle Against Prescription Drugs Causes Pain

Roland Lorenz has surgical screws in his back and neck and a pin in his upper leg, and when his pain reared up one recent weekend, he knew he needed something strong. He had just been to a pain clinic, where the doctor ordered an increase in his dosage of Percocet, a narcotic.
It took two days to get the painkiller.
Mr. Lorenz, 75, lives in a nursing home in St. Louis. Until recently, the nurses would have sent an order to the pharmacy for the Percocet, based on instructions phoned in from the clinic — a longstanding practice for nursing homes, which typically do not have a full-time doctor on staff.
But now that practice has come under the scrutiny of the Drug Enforcement Administration. Last November, the pharmacy serving Mr. Lorenz’s nursing home announced that it would no longer dispense certain narcotics without a written or faxed prescription from a doctor.
For Mr. Lorenz, this meant a weekend of pain. The doctor at the pain clinic was not available, and the nursing home’s doctor on call would not write a prescription without examining Mr. Lorenz in person. For the next two days, Mr. Lorenz said, “I was miserable. I needed it to get straightened out. It was killing me.”
Staff members assured him that the drug was on its way at least six or seven times, said Mr. Lorenz, a former Marine and police officer.
“It’ll be there by midnight. It’ll be there by 2 a.m. The pharmacist kept saying he needed to talk to the doctor. It was real, real rough.”
Nursing homes and doctors say patients like Mr. Lorenz have become unintended casualties in the war on drugs because of a new level of enforcement intended to prevent narcotics from getting into the wrong hands. About 1.4 million Americans live in nursing homes.
The D.E.A. is investigating pharmacists in “about five states” for dispensing the drugs to nursing homes without direct written orders from a doctor, said Gary L. Boggs, an executive assistant in the agency’s Office of Diversion Control.
Earlier this year, the Senate’s Special Committee on Aging heard testimony from long-term-care professionals describing delays in delivering pain medications to patients. Two Democratic committee members, Senators Herb Kohl of Wisconsin and Sheldon Whitehouse of Rhode Island, have urged Attorney General Eric H. Holder Jr. to find a solution.
“We keep hearing the right things from the D.E.A. on this issue, but we haven’t seen any action,” Mr. Kohl said through an aide.
Mr. Boggs said the agency was just trying to protect patients. “This isn’t a matter of us being bureaucratic pencil pushers,” he said. “What we see is nurses unilaterally calling in prescriptions, or pharmacists dispensing controlled substances without a prescription, then trying to get a doctor to sign a prescription for a patient he never saw.”
In the meantime, doctors say, their patients suffer — sometimes for half an hour, sometimes for several days.
“There’s just a lot of potential for error in the process,” said Dr. Jonathan Musher, a geriatrician and past president of the American Medical Directors Association, a trade group of long-term-care doctors and administrators, which has sought a change in the requirements.
The problems are most common when patients first arrive at nursing homes from hospitals, Dr. Musher said.
For example, he recently had a patient move to a nursing home after a hip fracture. At the time, she was not on narcotic pain medication. That night the nurse called Dr. Musher to say that the woman was in pain. “I was told I had to call the pharmacist,” he said. “O.K., what’s the pharmacist’s number? The nurse has to call me back, she wasn’t sure. I get a call back with the number. I call the 800 number and leave a message. I get a call back a half hour later.
“So now there’s been a 45-minute delay. Now he tells me I have to fax in a prescription. I’m not home, so I say I will do it in 15 minutes. After I fax it, I call the nursing home, and they haven’t heard anything from the pharmacist. Finally I told them to send the patient to the hospital.”
She got her medication, “but that’s something we don’t want to do,” Dr. Musher said. “There are health issues with transfer, as well as the costs of transfer.”
Critics of the nursing home industry say the bigger problem is that facilities are not providing adequate medical care to their patients.

Wednesday, September 22, 2010

Judge: Despite Defense Jury Verdict Drug Company Must Pay


Judge: Pharma Company Overcharged State by $27.6 Million

The Legal Intelligencer
September 22, 2010 
A Commonwealth Court judge has ordered pharmaceutical company Bristol-Myers Squibb Co. to stop inflating the wholesale price of its drugs purchased by the state's pharmaceutical drug programs for the poor and for the elderly.
Commonwealth Court Judge Robert E. Simpson said in a Sept. 10 order in Commonwealth of Pennsylvania v. Bristol-Myers Squibb Co. that Bristol-Myers, headquartered in New York City, violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law with unfair or deceptive practices. The judge said Bristol-Myers owes $27.6 million to the state of Pennsylvania for the price of drugs charged in violation of fair trade practices.
But the judge said in his order that he was not awarding damages or attorney fees. The judge said he did not have sufficient information to calculate civil penalties because the plaintiff's expert did not limit his information to how many times the average wholesale price changed for Bristol-Myers Squibb's drugs from 1991 until 2004 and the expert may have included drugs not subject to the litigation.
Simpson's order followed a defense jury verdict in the case. The jury did not find common-law negligent misrepresentation or fraudulent misrepresentation by Bristol-Myers Squibb, Simpson wrote, but he said that the standard under the unfair trade practices law is different. A plaintiff's lack of reliance on the representation and a plaintiff's knowledge that a representation is inaccurate are not "complete defenses in an enforcement action brought in the public interest," Simpson said.

Wednesday, September 15, 2010

Meeting with Pharmaceutical Company Corporate Counsel Next Week

The doctor is the real customer for prescription medications. The doctor can also get legal standing  by buying a share of company stock. Such ownership would allow the doctor to intervene when a company is about to make a mistake detrimental to the interest of the doctor and of the patients.

I hope the attorney will allow recording of the meeting so it may be posted here.

Here are some areas of concern.

1) Most of the enforcement actions of the DOJ on behalf of the FDA have been of mala prohibita, with no evidence of any harm to patients.  Off label promotion most often benefits patients. If it can be shown to have helped some patients. Therefore they are pretextual (false) uses of the law to raise revenue for the government. These prosecutions should get enjoined as a matter of policy to protect research, the interests of patients, and the independence of street clinicians to help patients.

2) Why not attack the prosecutor, the FDA officials, the whistleblowers, and the judges? They are mortal enemies to clinical care and deserve no human consideration. Personal destruction should be a standard price paid by all enemies of clinical care. It can start with total e-discovery of their personal and government computers. As a start, the government is the biggest subscriber and downloader of child porn. The prosecutor will say, these images are part of his job. Sure. That is what all perps say. Let him explain them to the FBI. Every utterance should be parsed for a violation of a professional rule of conduct and reported to the appropriate investigatory authority. Let these enemies of clinical care undergo perpetual state of being the target of an investigation. Such a tactic in the past resulted in the end of a long line of lawsuits, the exit of the lawyer from that field, and the experts never testifying again.

3) Off label use and promotion is the biggest source of undiscovered medical advance at no additional cost. If a company is accused of such, it should ask the judge, to dismiss the case as a matter of policy. Such prosecutions deter the massive lode of medical advances yet to be mined.

4) Black box, class warning labels not applicable to a member should be resisted to avoid the deterrence of the non-specialist.

5) The campaign against industry sponsorship of continuing education, sandwiches, pens, etc. is not driven by misguided, crazed left wing ideologues. It is driven by evil insurance companies. They want to end the prescribing of brand name medications to dark skinned people on Medicaid, to enhance the profitability of their government contracts. Senator Grassley, on a witch hunt against drug companies is a paid stooge of Blue Cross/Blue Shield. When people write to persuade me to switch to obsolete medications. I offer to come over, and to give these medication to their pets. They refuse. So, why would I should feel pressure to switch to a generic when these are not acceptable for use in animals?

6) I may buy a share of stock in every pharmaceutical company. That would give me standing to file an intervention claim every time a phony settlement is agreed upon. These settlement hurt the shareholder and the public interest. They should be blocked on policy grounds and any prosecution enjoined.

7) I propose the establishment of a public interest interest law firm funded by $million each year from each pharmaceutical company. It would sue the enemies of clinical care, and hound them, including the bureaucracy. It would campaign to hobble and eliminate the FDA, as an obstacle to medical progress.

Sunday, August 15, 2010

Harvard Law Review Mate: Obama Narcissitic, Lazy, Being Groomed From Beginning

Obama's tuition payments, and admission with poor grades remain a mystery.He may have been sponsored by Saudi elements.

Unlike organized medicine, the AAPS is doing something to oppose Obamacare by filing a lawsuit in federal court. It has survived the summary judgment phase, and should be supported.

I do not believe the argument will work. The law forces people in repose to act to buy a product.

Well, the government does that a lot. It forces duties that are detrimental to the public, the time to fill out tax forms, jury duty, registration for the draft. These have been upheld by the Supreme Court. The attorney believes the vote will be 4 to 4 with Kennedy casting the deciding vote to overturn the law.

I support the aims of the organization and its actions, even if some members do not have mainstream views.

Thursday, August 5, 2010

AMA Study: Medical Malpractice Ubiquitous and Has Big Impact on Clinical Care

The solution is to allow the adverse third party to sue the lawyer for legal malpractice. It appears 90% of claims are weak, and the filing of a weal claim is legal malpractice. The lawyer will argue, the lawyer cannot have a duty to the adverse party. It would make his job impossible. This is not true. The lawyer has dozens of duties to the adverse third party, enumerated in the Rules of Civil Procedure, of Evidence, of Conduct, in hundreds of precedent setting case decisions.

From Medscape Medical News

Malpractice Threat to Physicians Pervasive, AMA Study Finds

Mark Crane

August 5, 2010 — More than 42% of physicians have been sued for medical malpractice at some point in their careers, and more than 20% were sued at least twice, according to a new American Medical Association (AMA) report.
An average of 95 claims were filed for every 100 physicians — almost 1 per physician — the AMA's Physician Practice Information survey of 5825 physicians, fielded in 2007 and 2008, found.
Despite the pervasive threat of litigation across 42 different specialties surveyed, two thirds of claims are dropped or dismissed, and physicians prevail 90% of the time in cases that go to trial, the study found. Still, the costs to physicians in terms of malpractice premiums and to the entire healthcare system resulting from the practice of defensive medicine are quite high. Average defense costs per claim range from a low of $22,000 among claims that are dropped or dismissed to a high of more than $100,000 for cases that go to trial.
"Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence how and where physicians practice, when they retire, and how often they practice wasteful defensive medicine," AMA Immediate Past-President J. James Rohack, MD, told Medscape Medical News. "This litigious climate hurts patients' access to physician care at a time when the nation is working to reduce unnecessary healthcare costs.
"Unfortunately, there are no real surprises in this study for us," said Dr. Rohack, a cardiologist in Temple, Texas. "It reconfirms the need for a solution to our current tort system. If the nation is ever going to control the rise in healthcare costs, we have to eliminate wasteful defensive medicine spending."
Other highlights in the report include:
  • Nearly 61% of physicians aged 55 years and older have been sued.
  • There is wide variation in the effect of liability claims between specialties. The number of claims per 100 physicians was more than 5 times greater for general surgeons and obstetricians/gynecologists than it was for pediatricians and psychiatrists.
  • Before they reach the age of 40 years, more than 50% of obstetricians/gynecologists have already been sued.
  • Ninety percent of general surgeons aged 55 years and older have been sued.

Sunday, August 1, 2010

Never Events: Trojan Horses for Death Panels

These are errors in care that are so outrageous, they should never happen. Should they occur, the payment authority has no obligation to pay for the work done. In the case of psychiatry, these are unjust. Patients who want to kill themselves cannot really be stopped 100% of the time. As to patient elopment, if there are escapes from high security prisons, mental health units should not be held to any higher standard of security. Medicare and Medicaid began denying treatment for these preventable complications. The assumption is that they all stem from clinical error, which are 100% avoidable.

In a study of surgery, factors such as the severity of symptoms, complexity of comorbidity both affected outcomes, and were  beyond the control of the clinician. (Arch Surg, 145: 148-151, 2010). These very sick patients were more likely to develop post-operative pneumonias.

What will be the effects if these never events are permitted to be used as a pretext to not pay for expensive and complicated care?

1) denial of Care. Clinicians will refuse to perform procedures on patients with severe symptoms or complex comorbidities, because of the greater chance of a never event;

2) government entities and their agents, wealthy, powerful insurance companies will  be unjustly enriched at the expense of smaller health care providers;

3) further defunding of health care, and shrinkage of availability, especially to very ill, complicated patients;

4) ironic increases in never events, as these are covered up, and the factor cluster analyses needed will not be done to make system wide changes necessary to prevent them in the future;

5) the non-payment represents a Fifth Amedment taking without a fair hearing;

6) punishment of a person for the intentional acts of another, such as elopment or suicide, violates procedural due process rights;

7) the non-payment may violate the ADAAA rights of severely ill people.

Saturday, July 10, 2010

1952 Cunningham in the Rain

Some may disapprove of driving such a car in the rain. However, no race would have been called off for rain. And the experience of being there was deeply moving. This car won a 12 hour all out race in 1953. So, live with it, all overweening, pansy car critics.

It should be noted, no car was harmed in the filming of this clip. Back inside, it had a thorough blow drying with compressed air hoses.

Coming Shortage of Physicians

If there is a shortage of something, shouldn't its price go up? The earnings of New Jersey physicians are in free fall. And HMO's carry legal immunity and appear to be above the law.

It is usually argued that tort liability is a substitute for violent revenge. If that is true, then the obverse is true. Immunity fully justifies violence.

Addressing the Anticipated New Jersey Physician Shortage
7 July 2010
By Patricia A. Costante

In recent months, there have been several reports published that have forecasted dramatic physician shortages in New Jersey. The New Jersey Physician Workforce Task Force Report published by the New Jersey Council of Teaching Hospitals projects a shortfall of more than 2,800 physicians by the year 2020. Even more alarming is the fact that the 2009 report of the Resident Exit Survey (an annual report prepared by New Jersey Council of Teaching Hospitals) shows a precipitous decline in the number of graduating medical residents who are choosing to practice in New Jersey. In 2009, only 32% of graduating residents stated that they intended to establish a practice in New Jersey, which represents a 15 percent decline in just one year. This report indicates that the anticipated 2,800 physician shortage may be closer to 3,250.

While the recent reports from the New Jersey Council on Teaching Hospitals have brought renewed attention to the issue, the impending physician shortage is not a new concept. Since 2005, a number of reports and studies have been published by at least 29 states and the Association of American Medical Colleges that have stated that the United States will be facing a shortage of 150,000 doctors by 2025.

The anticipated physician shortage in New Jersey will likely be felt at perhaps the worst possible time, as we all start to experience the impact of President Obama’s healthcare reform. Under the Patient Protection and Affordable Care Act, primary care physicians, identified as general practitioners, internists, family physicians and pediatricians, will play a significant role in coordinating the care of each of their patients, especially those with multiple chronic conditions. The New Jersey Physician Workforce Task Force has concluded that there is already a current shortage within primary care specialties. As New Jersey’s insured population gets set to expand by nearly 1.3 million patients, the supply of primary care physicians will clearly be insufficient to respond to the growing need. There are also many specialties that are predicted to have shortages, particularly neurosurgery and pediatric subspecialties.

Saturday, July 3, 2010

Distress About the Doubling of Army Suicides

One refers the Army to colleagues in the Air Force. Without hand wringing, nor $50 million study, they cut the rate, at little additional cost.

The results were duplicated when assertive case management was instituted in a nation. Same effect from aggressive management in an HMO.

Effect of Obamacare on Doctors

The news is mostly bad.

Obamacare and its Impact on Doctors
14 June 2010
By Robert E. Moffit

Don’t expect doctors to give the Patient Protection and Affordable Care Act a clean bill of health. The act will reinforce the worst features of existing third-party payment arrangements in both the private and public sectors — arrangements that already compromise the professional independence and integrity of the medical profession.

Doctors will find themselves subject to more, not less, government regulation and oversight. Moreover, they will become increasingly dependent on unreliable government reimbursement for medical services. Medicare and Medicaid payment, including irrational government payment updates, are preserved (though shaved) and expanded to larger portions of the population.

The Act creates even more bureaucracies with authority over the kinds of health benefits, medical treatments and procedures that Americans get through public and private health insurance. The new law provides no serious relief for tort liability. Not surprisingly, various surveys reveal deep dissatisfaction and demoralization among medical professionals.

Under the new law, an estimated 18 million of the 34 million who would gain coverage over the next 10 years would be enrolled in Medicaid, a welfare program jointly administered and funded by the federal government and the states.

Such a massive Medicaid expansion will displace private health coverage, and expand government control over health care financing and delivery. Physician payments in the major entitlement programs, Medicare and Medicaid, are well below the prevailing rates in the private sector. On average, doctors in Medicare are paid 81 percent of private payment; physicians in Medicaid are paid 56 percent of private payment. Needless to say, today there are sporadic access issues for patients in Medicare, and major access problems for patients in Medicaid.

The new law does not substantially change the general pattern of the government’s systems of physician payment. Indeed, it only expands their reach and adds new regulatory restrictions. For example, beginning this year, the new law will prohibit physicians from referring patients to hospitals in which they have ownership, with the exception of hospitals that treat a large number of county patients enrolled in Medicaid.

Monday, June 28, 2010

Daubert Applies to the Criminal Trial. New Jersey Limits the Effect of Eyewitness Testimony

The trial itself is Medieval garbage from the disputation method of Scholasticism, as a method of arriving at some answer to an important question. There are no validation nor even reliability data available to this essential legal methodology.

New Jersey is a leader in addressing problems with eyewitness testimony

By Emilie Lounsberry

Inquirer Staff Writer
McKinley Cromedy spent five years behind bars in New Jersey after a rape victim testified she was certain he was the one who attacked her.

Cromedy's lawyer questioned the ability of the woman, who is white, to differentiate among black men like the defendant, but the jury convicted Cromedy on the strength of the victim's memory.

DNA eventually showed he didn't do it, and the New Jersey Supreme Court responded with a bold move: It ordered trial judges across the state to instruct juries about the difficulties of cross-racial identification.

More than a decade later, New Jersey remains a leader nationally in efforts to deal with the problem of misidentification. A report filed last week with the state high court said that even more steps were needed to take advantage of the wealth of scientific studies casting light on the issue.

"New Jersey is a vanguard state," said Duquesne University law professor John T. Rago, among those working on the issue in Pennsylvania as part of an examination of the underlying causes of wrongful convictions.

Rago and others said Pennsylvania has a way to go to catch up with its neighboring state on the possible pitfalls of eyewitness testimony, which is among the most powerful evidence in criminal cases.

"There hasn't been much in the way of reform in Pennsylvania at all," said Gary Wells, a psychology professor at Iowa State University who was one of seven experts to testify before the special master who filed the New Jersey report on the issue.

A final report to the Pennsylvania Senate, due in late summer, is expected to explore eyewitness identification.

"It's not an easy issue," said Rago, who said the 51 committee members were examining scientific advancements focusing on a number of avenues of criminal investigation.

The problem with eyewitness identification has come to light because of DNA testing, the great equalizer in the criminal justice system because it helps to convict the guilty and clear the innocent.

About three-quarters of the 254 defendants exonerated nationally by DNA testing, including Cromedy, had been convicted largely on the basis of eyewitness testimony.

"It was him," the young rape victim testified in 1994, telling a jury that Cromedy had attacked her in her basement apartment near the Rutgers University campus in New Brunswick.

Thursday, June 24, 2010

Letter from Medical Directors of Pharmacy Benefit Plan to Psychiatrists

The letter outlined the data from one perspective, and failed to provide any balance about the use of neuroleptic tranquilizers in children.

Here are some problems with this advocacy.

1) Failure to disclose a conflict of interest. If these directors get bonuses based on unused funds, they profit personally from the use of generics. That should be disclosed.

2) Mass prescribing. It is not advisable to enter a theater and to yell, everyone in here is to start to take Lithium. As mass prescribing is not acceptable, mass unprescribing is too.

3) These medical directors are paper shufflers, telling experienced clinicians how to prescribe. It is not only an act of medicine, it is an act of supermedicine, bossing the doctors of the entire state.

4) Agency. These are agents of contractors that are quasi-governmental organizations. Doctors who get sued for following their suggestions should file cross claims against them, their agencies, and state officials, as individuals.

5) Golden Rule. Would providers take these medications themselves? Over 95% of providers would take second generation tranquilizers and not first generation ones. I doubt any of these medical directors would allow me to feed their dogs Haldol or Thorazine.

6) The question of the use of first generation tranquilizers is not settled. It is misleading to present as such. A counterpoint box should be included in any future communication.

Sunday, June 20, 2010

The Arrogance of the Plaintiff Expert is Exceeded by Only by Inexperience, Lack of Common Sense, and Ignorance of the Law: The 15-Minute Med Check

Dr. Douglas Mossman is a better columnist than the horrible person he replaced. I do not want him gone, as I demanded his predecessor be gone. The latter must have generated massive protests against his anti-clinician bias. Dr. Mossman, nevertheless, has a conflict of interest, which he has failed to disclosed. As the head of a forensic psychiatry service, he likely does better when litigation is needlessly churned over. If anyone learns he is testifying as a plaintiff expert, I would appreciate the information, so that I may begin to act against this clinician basher.

This column is useful. However, it should have a counterpoint section to correct its anti-clinician bias.

Dr. Mossman misleads by omission.

1) The clinician must exercise clinical judgment. There is no such thing as a 15 minute med check standard of care. The duration of a session is clinical decision based on need. Some patients need 2 minutes every 6 months. Others need 2 hours a day to prevent a catastrophe. The majority of patients get no time at all, since they do not come back after they improve. Is there a duty to hunt these down and to force a 15 minute med check on them, against their wills? No. They need a zero minute med check, and will call if they worsen again.

2) His false utterances were they to be made in testimony would have to meet the Daubert Standard or the Frye Standard for scientific expert testimony, depending on the state. The clinician should find which applies in his state. Then every utterance of the plaintiff expert should be subjected to their standards. Both are named after Supreme Court of the US cases, and are the law of the land. The federal Rules of Evidence have incorporated the Daubert standard as a statutory requirement for expert testimony.

3) That being said, there is no correlation between the extent and quality of the medical record and quality of care. The record requirement is to intimidate, and to harass the clinician. It makes the life of people like Dr. Mossman easier, as well. They can find more words to use against the innocent defendant. If I am a patient suffering from some injury or crushing chest pain or intense depression, and the doctor is documenting me, I am getting pretty angry. I am going to toss that stupid laptop and that notepad from the window. Remind the Doc, the pain is here, and it is agonizing, stop record keeping and start taking care of my suffering.

Doctors like Dr. Mossman are really enablers and collaborators of the lawyer profession oppressor, as it seeks to plunder and destroy clinical care. The personal counterattack on these disloyal experts should be pitiless.

Wednesday, June 16, 2010

Law Student Outside of Top 8 Schools Have It Really Tough

It is time to view the lawyer profession as a regulated utility product. We are overlawyered. Underlawyering has equally bad consequences. There a just right amount of lawyering, likely about 500,000 fewer than the current 1.3 million lawyers now working. Like predators, they are overly decimating our economic and safety environment.

Sunday, June 13, 2010

Wake Up, Fellow Law Professors, to the Casualties of Our Enterprise

Brian Tamanaha

It’s grim reading. The observations are raw, bitter, and filled with despair. It is easier to avert our eyes and carry on with our pursuits. But please, take a few moments and force yourself to look at Third Tier Reality, Esq. Never, Exposing the Law School Scam, Jobless Juris Doctor, Temporary Attorney: The Sweatshop Edition, and linked sites. Read the posts and the comments. These sites are proliferating, with thousands of hits.

Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.

Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures. Many graduates can’t get jobs. Many graduates end up as temp attorneys working for $15 to $20 dollars an hour on two week gigs, with no benefits. The luckier graduates land jobs in government or small firms for maybe $45,000, with limited prospects for improvement. A handful of lottery winners score big firm jobs.

And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.

This dismal situation was not created by the current recession—which merely spread the pain up the chain into the lower reaches of elite schools. This has been going on for years.

The law graduates posting on these sites know the score. They know that law schools pad their employment figures—96% employed—by counting as “employed” any job at all, legal or non-legal, including part time jobs, including unemployed graduates hired by the school as research assistants (or by excluding unemployed graduates “not currently seeking” a job, or by excluding graduates who do not supply employment information). They know that the gaudy salary numbers advertised on the career services page—“average starting salary $125,000 private full time employment”—are actually calculated based upon only about 25% of the graduating class (although you can’t easily figure this out from the information provided by the schools). They know all this because they know of too many classmates who didn’t get jobs or who got low paying jobs—the numbers don’t jibe with their first hand knowledge.

Sunday, June 13, 2010

Desuetude: A Simple Tool to Clean the Regulatory and Statutory Codes of Bad Laws

There is a procedural due process right to notice. It says, one must warn the public of a new rule or of an arrest warrant or a new law suit claim before enforcing it. Notice gives the person an opportunity to fight enforcement of this damaging decision. In the case of the criminal law, the Sixth Amendment requires one be informed of specific charges.

If a law or regulation prohibits a behavior but has not been enforced in 5 years, then it provides false notice. And false notice can be as oppressive and unconstitutional as lack of notice.

Instead of opening yet another bureaucratic office, why not enact legislation that any rule or statute not enforced for five years is repealed. A list of such laws should be drawn up at the end of each session of the state legislature, and all such laws should be repealed formally.

This simple tool reflects the opinion of officials who have not enforced the rule. The officials themselves nullify the rule by their not enforcing it.

Only West Virginia has case law supporting desuetude,

"The seminal modern case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:

1. The statute proscribes only acts that are malum prohibitum and not malum in se;
2. There has been open, notorious and pervasive violation of the statute for a long period; and
3. There has been a conspicuous policy of nonenforcement of the statute.

This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003)[1]"

Thursday, June 3, 2010

Traffic Court as a Bunko Operation

Inconvenience as a Law Tool

They make 100 people come at 9 AM. There is an order of appearance which the judge claims was set by the Supreme Court of New Jersey. Those with plea agreements, the prisoners in the jail, those who want a trial who are represented by attorneys, and lastly, those who want a trial and are representing themselves. This order will become clearer later. I had demanded discovery in a prior appearance, and they had sent me a videotape of the traffic stop and the notes on the ticket. They had not sent me anything about the officer. This is needed because the elements of careless driving are so subjective, the character of the accuser is material. None of that was sent. One famous careless driving charge was that against Tiger Woods recently. When I sent a second demand letter of the prosecutor, they replied by moving up my court date by 5 days. I called the clerk who absolutely refused to reschedule it to the later date. I demanded to speak to the chief judge about scheduling and the unfairness of changing it at the last minute. He refused to accept my call. The defendant is an innocent party, and the judge is too good to take a phone call after making a very disruptive schedule change.

True Aim of Traffic Court Appears to Be Revenue Raising

But sit in the back of the court at the start of the day, and within 10 minutes one understands what the place is really about. Within 10 minutes, 5 people have pled to the amended charge of unsafe driving, with $123 fine, $33 in court costs, and a $250 New Jersey state surcharge. A dozen consecutive defendants are pleading to the same charge, unsafe driving, and thanking the court. They have been let off easy, and without points. So this court is rolling along, and is making around $10,000 an hour.

Hardly Working

The judge works a half hour, and needs a break for a half hour, perhaps to avoid fatigue. He opens with the explanation that their traffic charge is a criminal charge requiring the prosecution meet the burden of proof of beyond a reasonable doubt. He will not tolerate rudeness. If your cell phone rings in court, it will be confiscated, and the owner will be put last in line for the day.

The bailiff calls out the list of names, 5 at a time. They stand in line to speak to the prosecutor. The latter is different each time, knows nothing about the charge, asks about it. Then, you got it he offers unsafe driving charge with the above fine, but no points in New Jersey. The problem for me is that unsafe driving still gets 2 points in Pennsylvania. And the sole charge without points is speeding by less than 5 mph. The prosecutor did not disclose that. I had to learn it from the practice manual of the Municipal court, which I bought used.

There is a light hearted camaraderie on the line to the prosecutor. The vast majority of people are recent immigrants with accents, and the rest are working class guidos from the area, which is in Soprano country.

Send in the Goons

I get into the office, and I tell the prosecutor that he has been stonewalling the discovery I demanded, and that mistake will change his life. He says, you are threatening me, and calls the police. I reply that asserting a legal right is not a threat and that he has libeled me to the police, now in the room, hand on pistol, yelling, sit down, and be quiet. I want to avoid the disorderly conduct charge and an arrest that day, so I comply.

Continuances to Break Innocent Defendants
Another defendant is Israeli. His police officer does not show up for a trial. The judge grants the prosecution a continuance, to return another day with the police officer. The defendant complains he has already lost a day of work, and his wife is pregnant in Israel. The judge demands he show him a ticket to Israel, proving he is going there. The defendant does not have one, but continues to argue about the burden being imposed.

Send in the Goons Again
The judge stands up, and demands he be quiet. The defendant continues to complain. Four East Brunswick police officers surround him, hands on weapons. The defendant and I get the message. There will be no trial, never. He decides to accept a plea bargain, despite his feeling he is innocent.

I accepted an unrelated charge that carries no points in Pennsylvania, and that is half the cost of the most common plea, unsafe driving. It carries no points in New Jersey but does in Pennsylvania. I accept a plea to driving 1 to 4 miles over the speed limit, the sole moving violation without points in Pennsylvania. The fine is $100, doubled in a 65 mph zone, plus $33 court costs, for a total of $233, instead of $433 for unsafe driving. The New Jersey prosecutor does not tell me Pennsylvania law. I had to find out Unsafe Driving still carries points in Pennsylvania from research of used library editions of the manuals on the New Jersey driving laws.

Rules of Conduct for Judges I run into my new Israeli friend at the pay booth. I offer to write a letter of complaint to the Judicial Review Board for the outburst by the judge. He declines, stating he still has to drive in the vicinity and does not want to be targeted.

Upon return to the court with the plea ticket, the atmosphere is completely different. The judge is calm, he apologizes for his temper outburst. There are no goons. Everything is friendly and business like.

Same goes with my plea deal.

Sunday, May 23, 2010

The Days of Opening a Car Door for the Lady Are Over

The week's catchy dance tune. Also, thank you to the Brother, for taking the psycho hussy off our hands.

Before you ask, the name is Nadya Nepomnyashaya.

Saturday, May 15, 2010

Muhammad Yunus at Rice University: Genius, Yes, But...

What an intelligent student body, selecting this brilliant economist as their graduation speaker.

I have always believed poverty is a cultural choice at least, but not necessarily an individual's choice. In a culture of wealth accumulation such as that of the USA, poverty is a lifestyle choice, similar to choosing between a marina community or a golf development.

Prices are the same around the world. I thought the extreme poor required superhuman powers to survive on $1000 a year or less, with a family of 8. I admire the extreme poor for skills I do not have and am unlikely to be able to learn. For example, in a Third World country, people went to the bathroom in latrines. I just could not. I held it in until I could reach the lobby bathroom of the local Holiday Inn.

That being said, Dr. Yunus came up with a simple idea. It is counter-intuive until it works well and for a long time. That is the nature of genius.

Points Made

For an effective business model, take each point in the business model of banks and do the opposite.

Lend to the poor.

No collateral.

No contract with illiterate people.

No lawyers.

Lend to females, not males only as the banks do.

Find beggars and propose adding value to their visits to homes, for example, sell something small, such as cookies, toys, trinkets. The beggars then learn market stratification learning the best homes for begging, and the best homes for selling.

Next, offer the children of beggars tuition loans. He has produced 10's of 1000's of professionals that way.

Point Not Made

That female who buys a sewing machine with the $12 lent to her, starts to make clothing. She may end up earning $1000 a year. That then makes her the wealthiest, cash engorged person in the village. She may hire people, and begin to have influence. The bosses running that village then visit her because she may end up taking their power away. They offer her to end her business or to be driven out or killed. She will likely stop, and that explains why the village is poor. It may be that poverty is a lifestyle choice not just in the USA, but also in Bangla Desh, because it promotes power interests.

Saturday, May 8, 2010

Less Painful Pre-Authorizations

The cancellation of a prescription by refusal to pay for it is the same as making a prescribing, an act of medical practice. Assume the prescription was cancelled by a doctor in the same specialty as the prescriber. It remains unprofessional conduct to make a medical decision on a patient whom one has never seen, and whose records have not been reviewed.

I would like to see an ethics complaint for unprofessional conduct filed after every denial. The pre-authorization itself is a joke. It implies, the prescribing doctor was not serious in writing his prescription, or only meant it a little. I disagree that the time and effort are built into the encounter fee, without causing a conflict of interest. The fee is to see the patient. It is not to do work for the insurance company. If the doctor is on the payroll of the insurance company and owes a duty of performance, he cannot be 100% committed to the medical interest of the patient.

In any case, here is some advice on trying to make it easier.


Insurance preauthorizations: How to make the process less painful

Practice Management. By Victoria Stagg Elliott, amednews staff. Posted April 5, 2010.
The process can be automated. Or, practices can note what issues trigger a denial, and adjust their processes to quicken and gain approval.

And while insurers normally view precertification as a nonbillable service because it's considered part of a medical visit, evidence of how much time it takes can be used as a negotiating chip with insurers.

"It's supposed to be built into the revenue for the services that doctors are providing, but it can be an administrative nightmare for practices. Every insurance company requires something just a little bit different," said Rhonda Buckholtz, vice president of business and member development at the American Academy of Professional Coders. "But we can simplify the process as best we can."

The first step is to analyze how the office handles the process. Is it possible to get some preauthorizations completed before the patient comes in? Are there insurer-provided online tools that the practice is not taking full advantage of?

For example, Elizabeth Woodcock, principal of Woodcock & Associates in Atlanta, said she worked with an endocrinology practice that entered precertification information into an insurer's online system. But, rather than submitting it electronically, staff printed it out and faxed it, which took additional time.

"Make sure you are using all the automation that the payer allows," Woodcock said.

Experts also suggest creating some kind of tool that staff can refer to with all the policies and procedures of various insurers. This does not have to be particularly high-tech. For instance, Buckholtz has set up three-ring binders at several medical practices she has worked with. The binders can be particularly handy if the person who usually handles preauthorizations is out of the office.

Dealing with denials of the initial request for precertification also can be time consuming, but experts say the situation is another opportunity to look for time savings. Are there consistent issues that trigger a denial? Are certain codes always left off? Are necessary lab tests not being noted?

Pre-Authorizations Denials End When Investigations Begin

Insurance preauthorization denials spark inquiries

By Emily Berry, amednews staff. Posted April 15, 2010.

Years of physician complaints about Delaware health plans' utilization management programs have culminated in inquiries from a U.S. senator and the state's insurance commissioner.

Sen. Jay Rockefeller (D, W.Va.) wrote to Blue Cross Blue Shield of Delaware March 25, citing news reports that said the plan, through contracted utilization manager MedSolutions, was routinely denying requests for prior authorization for cardiac stress tests, even in cases where they appeared to be obviously medically necessary.

Rockefeller, who chairs the Senate Committee on Commerce, Science and Transportation, asked the company to give his office its records, including an explanation for every denial of a cardiac diagnostic test in the last five years.

Then on March 27, state Insurance Commissioner Karen Weldin Stewart announced she had formed a task force and was investigating prior authorization denials by the Blues, Coventry Health Care and Aetna, all of which have hired MedSolutions.

In a statement released that day, she said that until her department had completed its work, the Delaware Blues had agreed to eliminate preauthorization requirements for high-tech radiology services.

Assessment of Costs by Clerk of Court Despite Wealth Disparity

The Third Circuit covers Pennsylvania. Given the fact that 80% of malpractice claims are weak, this decision should result in more requests for costs. In this case, two claims were not filed on time, and summary judgments for the hospital were granted.

The decision is here.

Federal Rule of Civil Procedure 54(d)(1):

(d) Costs; Attorney’s Fees.

(1) Costs Other than Attorneys’ Fees.

Unless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney's fees — should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action.

Friday, May 7, 2010

Lawyer Deceit Statutes

Recommended reading for all victims of lawyer deceit.

Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages

Alex B. Long
University of Tennessee College of Law

February 25, 2010

University of Tennessee Legal Studies Research Paper No. 103
UC Davis Law Review, Forthcoming

Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute through its decision in Amalfitano v. Rosenberg. This Article discusses the extent to which, in this age of widespread distrust of the legal profession, this type of external regulation of the legal profession is a desirable approach. The Article concludes that although the utility of existing attorney deceit statues is undermined by the broadness of the language, the symbolism of the statutes is important. By relying on the development of tort law to address the same subject matter, courts can achieve the same educational and symbolic goals while dealing with attorney deceit on a more practical basis.

Sunday, May 2, 2010

Medical Students Learn About Safety

The modern view of catastrophes is that a cluster of factors come together, often 12 for an airline crash. The chain of causation view of the lawyer is from Scholasticism and the 13th Century.

This article provides a good review of what should go into medical error correction. I can say what they cannot. The unit of the hospital should be closed until the remedy has been found and incorporated.

Safety on the syllabus: Patient safety becoming part of medical education
Training in quality improvement is also being added. But some physician leaders say it's happening too slowly.

By Kevin B. O'Reilly, amednews staff. Posted April 19, 2010.

Robert O. Bonow, MD, chief of cardiology at Northwestern Memorial Hospital in Chicago, is pursuing a master's degree in quality and safety so he can be a better teacher and "transmit this to the next generation." [Photo by Tori Soper /]

Robert O. Bonow, MD, graduated from medical school in 1973. Caitlin Schaninger will graduate in June. Despite training in different generations, they see similar gaps in quality and safety education.

Much has changed in medical education in the nearly four decades that separate their medical school experiences.

What has remained largely unchanged is the lack of education most medical school graduates receive in the science and skills of quality improvement and patient safety -- how to deliver the right care to the right patient at the right time, and how to prevent a patient from being harmed.

Dr. Bonow is chief of the cardiology division at Northwestern Memorial Hospital in Chicago. He directs the Center for Cardiovascular Quality and Outcomes at Northwestern University's Feinberg School of Medicine and has served on several guideline and measure development bodies. Yet even with all his experience and expertise, Dr. Bonow felt compelled to pursue a master's degree in health care quality and patient safety.

* Boosting quality instruction
* Learning how errors happen
* Links
* See related content

"There's a knowledge gap that I think I personally have," he said. "I've been involved with a lot of quality initiatives, but have never had necessarily formal training in this stuff. I've learned it by osmosis for a decade and a half."

Northwestern University's program, launched in 2006, was believed to be the first of its kind. At least four other universities now offer similar master's degree programs aimed at addressing this training gap and helping to educate the faculty who will teach medical students and residents skills such as how to analyze errors and how to measure quality performance. Many medical schools and teaching hospitals are working to integrate quality and safety into their training, but critics say the pace of change is too slow and too inconsistent.
"Unmet needs"

Schaninger is among medical students across the country looking outside the formal curriculum of medical school for quality and safety training. As a student at the University of Chicago Pritzker School of Medicine she helped found a campus chapter of the Institute for Health Improvement's Open School for Health Professions.

The Open School offers free online quality and safety training to medical, nursing and other health professions students, and boasts chapters on 204 campuses in 41 U.S. states and 26 other countries.

Learning how errors happen

Medical educators often use a case-based approach on patient safety. Here is a sample lesson plan in which trainees are asked to do a root cause analysis of a real-life, fatal medication overdose given an infant. The chain of errors began when the resident writing the order was distracted by a phone call. Students are asked to answer these questions:

What happened? What were the gaps in quality of care? Did near misses, errors without harm and/or adverse events occur in the case? Hint: Make a chronological listing or flow diagram of events.

Why did it happen? What are the contributing factors? What are the active and latent factors?

What would prevent it from happening again? What are prevention strategies?

Trainees are then asked to describe how the following systemic factors may have contributed to the error:

Equipment: Design, availability and maintenance.

Environment: Staffing levels and skills, workload and shift patterns, administrative and managerial support, physical plant.

Teamwork: Verbal and written communication, supervision and assistance.

Staff: Knowledge and skills/training, competence, physical and mental health.

Institutional context: Economic and regulatory situation, availability and use of protocols, availability and accuracy of tests.

Organization/management: Financial resources and constraints, organizational structure, policy standards and goals, safety culture and priorities.

Patient: Complexity and seriousness of condition, language and communication, personality and social factors. Each group then presents its top three contributing factors, top three prevention strategies and its explanation of how the root cause analysis could improve safety in practice.

Source: "Modified Root Cause Analysis (RCA): Improving Patient Safety/Quality of Care," University of Missouri-Columbia School of Medicine, 2004

Virginia Now One of Dozen States Mandating Pay for Telemedicine

People should pay for their own visits, and forget about insurance coverage at the low cost of telemedicine. If it costs $10 to reach the doctor, and $10 to return home, $100 to take off a half day from work, the average person should arrange for it at their own expense. A $60 brief visit would still be half as expensive. There is also some chance the impaired person may get into a car crash. What would people pay to prevent one of those? What else can the states do, of greater importance to doctors is to rein in the states goofy, mad dog licensing boards. Any charge involving telemedicine should be immunized.

Virginia Gov. Bob McDonnell has signed into law a bill that requires insurers to cover services provided through telemedicine.

With enactment of the legislation on April 5, Virginia becomes the 12th state to mandate that health plans cover telemedicine. Under the new statute, telemedicine services include the use of interactive audio, video or other electronic media used for the purpose of diagnosis, consultation or treatment.

It does not include services provided using an audio-only telephone, e-mail message or fax transmission. Continuing medical education and call center services are not required to be covered, either.

The enactment of the bill was supported by several physician organizations, including the Medical Society of Virginia, the American Heart Assn., the American College of Emergency Physicians and the Virginia Telehealth Network.

"With telemedicine, physicians in all areas of the state who have the technology will be able to consult with specialists, regardless of location or other circumstances, such as foul weather," said MSV President Daniel Carey, MD. "It is extremely beneficial in areas of the state which are underserved by certain specialties, such as ob-gyn, and also when transporting the patient is not an option."

The American Medical Association supports payment to physicians for any telemedicine services they provide.

The 12 states as of today.

* California: 1996
* Colorado: 2001
* Georgia: 2006
* Hawaii: 1999
* Kentucky: 2000
* Louisiana: 1995
* Maine: 2009
* New Hampshire: 2009
* Oklahoma: 1997
* Oregon: 2009
* Texas: 1997
* Virginia: 2010

Source: The American Telemedicine Assn.

Saturday, May 1, 2010

Is Psychiatry Finished?

The craven and treasonous AMA and APA lent support to this Trojan Horse for Commie Care, health care reform. But, no. Psychiatry will not end. No one has ever done psychiatry any favor. It exists and does well because there is no choice, no alternative for the care of people with severe mental illness. Only a minority of such people are getting any care. They will not be welcome in the offices of primary care doctors, nurses, social workers. As uninsured people get access to care, psychiatry will be swamped. It will have to stick to the essentials of the service. It will have to get more rapid, efficient, and effective.

Here is something the public can do to cut the psychiatry bill in half. Stop using illegal drugs and and alcohol.

Thursday, April 29, 2010

Attack on Locality Rule Unwarranted

The letter above was to rebut this article.

The Locality Rule

The locality rule is the progenitor of the debates over the proper specialty qualifications for an expert witness. The locality rule evolved before the standardization of medical training and certification. During this period, there was a tremendous gulf between the skills and abilities of university-trained physicians and the graduates of the unregulated diploma mills. In many parts of the country, parochialism and necessity combined to create the rule that a physician's competence would be determined by comparison with the other physicians in the community, or at least in similar neighboring communities. The strictest form of the locality rule required the expert to be from the same or a similar community. This made it nearly impossible for injured patients to find experts to support their cases, effectively preventing most medical malpractice litigation.

The underpinnings of the locality rule are diametrically opposed to contemporary specialty training and certification. There is no longer a justification for a rule that shelters substandard medical decision making on the sole excuse that it is the norm for a given community. Many states have explicitly abolished the locality rule for physicians who hold themselves out as certified specialists. Unfortunately, the locality rule is being reinvigorated in some states as a tort reform measure. This resurgence is driven by the problem of access to care and facilities in rural areas.

Proponents of the locality rule often confuse access to facilities with physician competence. A national standard of care implies that the rural physician will have the same training and exercise the same level of judgment and diligence as an urban practitioner. It does not require that the rural physician have the same medical facilities available. If the community does not have facilities for an emergency cesarean section, the physician cannot be found negligent for failing to do this surgery within the 15 minutes that might be the standard in a well-equipped urban hospital.

Under a national standard, however, the physician must inform the patient of the limitations of the available facilities and recommend prompt transfer if indicated. This allows patients to balance the convenience of local care against the risks of inadequate facilities. The protection of a national standard is especially important as rural hospitals attempt to market or retain lucrative medical services that their facilities are not properly equipped to handle.

Tuesday, April 27, 2010

False Claim Act Attacks on Off Label Promotion

Click on title above for review of civil procedure defense, using Rule 9 (b).

Off label use represents about half of all prescriptions. Off label is the use of a medication for condition not approved by the FDA, after test data have been submitted by the drug companies. It is half of medicine, and can be as scientifically rigorous and prove as on label use.

Off label use represents a gold mine of medical advances at little or no cost. So the blood thinning effect of aspirin is a nuisance to the headache patient in whom it caused a bleeding ulcer. It is a great benefit to the heart patient who needs a mild blood thinner. Is aspirin a pain killer or a blood thinner? One patient's side effect is another's best treatment option.

Therefore, at the policy level, the lawsuits for any off label promotion should be dismissed as damaging to clinical care, by chilling the advocacy for innovative uses of cheap, older, often generic medication.

Beyond the appalling effects on clinical innovation, off label promotion is speech. The Free Speech Clause is a coin with two sides, the freedom to say speech, and the freedom to hear speech. Corporations may not have unlimited rights to free speech. However, doctors and patients have an unlimited right to hear free speech.

Sunday, April 25, 2010

Ironic. Dr. Daniel Carlat would like a return to the psychiatry that failed to prevent his mother's suicide.

Fewer than 5% of people who die by suicide have psychiatric medication in their system. There is an under use of these medications, and undertreatment of serious conditions. Among those prescribed medication, there is a high rate of non-adherence. One would like to know more of what happened to Dr. Carlat's mother. The idea that paranoia is treatable with talk therapy is not viable. One may also consider suicidality as a form of delusion, a belief that death will solve one's problems and that one will never enjoy life again. For those reasons, one hopes that she was prescribed a neuroleptic tranquilizer, and that she continued to take it. This useful technical information is not provided.

“So Dr. Freud, the causes are all in the brain? Isn’t there some explanation in my childhood?” It was a good-natured tease.

“I specialize in prescribing medications,” I said with a smile. I was a psychopharmacologist and specialized in medication rather than psychotherapy. “I can refer you to a good therapist in the area if you’d like.”

After J.J. left my office, I realized, uncomfortably, that somehow, over the course of the decade following my residency, my way of thinking about patients had veered away from psychological curiosity. Instead, I had come to focus on symptoms, as if they were objective medical findings, much the way internists view blood-pressure readings or potassium levels. Psychiatry, for me and many of my colleagues, had become a process of corralling patients’ symptoms into labels and finding a drug to match.

Leon Eisenberg, an early pioneer in psychopharmacology at Harvard, once made the notable historical observation that “in the first half of the 20th century, American psychiatry was virtually ‘brainless.’ . . . In the second half of the 20th century, psychiatry became virtually ‘mindless.’ ” The brainless period was a reference to psychiatry’s early infatuation with psychoanalysis; the mindless period, to our current love affair with pills. J.J., I saw, had inadvertently highlighted a glaring deficiency in much of modern psychiatry. Ultimately, his question would change the way I thought about my field, and how I practiced.

I originally became interested in psychiatry primarily because of my father: he is a psychiatrist practicing in San Francisco. But there was a darker side to my career choice. My mother suffered severe mental illness, with debilitating depressions and paranoid thoughts. One autumn day during my junior year in college, she committed suicide. Psychiatry then became personal, a way for me to come to terms with her illness.

Friday, April 9, 2010

The East Brunswick, NJ, Municipal Court and Traffic Offenses


1) The traffic court is a fast moving revenue raiser.

2) The rails to settlement are fully greased.

3) Pressure increases progressively as one asserts a desire for a not guilty plea and a trial. It reaches an unbearable level of cost, quickly, for any productive party. That pressure includes physical threats by township police, albeit staying within the law. The threatening behavior worsens as one tries to assert more legal rights.

4) Defense attorneys at this level of traffic court are a waste of time and money. It suggested that one buy a court practice manual, cheaply. One will learn a great deal about the way things work and one's real choices. One may resell it after the case. The prosecutor has little or no knowledge of any case, and will accept any reasonable offer. If one cannot think of any offer, the prosecutor wants to help. The final pled infraction may have nothing to do with the accusation. But never claim innocence. It makes everyone angry.

Tuesday, April 6, 2010

Nice. Trial Lawyer Association Sues Other Trial Lawyer Association

"A Minnesota federal judge recently ruled that the American Association for Justice's trademark infringement lawsuit against an organization and individual using the name American Trial Lawyers Association and the acronym ATLA will go to trial.

On March 18, Judge Joan Ericksen of the District of Minnesota denied two summary judgment motions from defendants American Trial Lawyers Association Inc. and J. Keith Givens. Ericksen also granted a motion by the AAJ in ruling that it had not abandoned its trademark for its former name.

The American Association for Justice (AAJ), a plaintiffs' counsel advocacy group, was known as the Association of Trial Lawyers of America until July 2006, when the members voted to change its name. According to court papers, AAJ has changed its name several times since it was founded in 1946, and it registered the trademark "ATLA" with the U.S. Patent and Trademark Office in 1976.

AAJ member Givens reserved the corporate name the American Trial Lawyers Association Inc. with the Alabama secretary of state in March 2007 and filed for incorporation, along with his brother, Chase Givens, the same month. Ericksen's ruling noted that the group's purpose on its articles of incorporate was to provide a magazine and educational news "relevant to civil plaintiff and criminal defense trial lawyers." Givens' association sent letters to prospective members in June and November 2007, and the AAJ filed its lawsuit in November 2007.

The AAJ is opposing the American Trial Lawyers Association's PTO application for a trademark that includes its name and a drawing of Lady Justice. The PTO has suspended Givens' group's second trademark application, which features its name and the acronym ATLA, partly because of the pending lawsuit."

Sunday, April 4, 2010

Planned Preliminary Motions for Careless Driving Charge in New Jersey

Traffic law is something the average person encounters every day. Naturally, it is not covered in law school. Does any one know of any law school offering any course in the rules of the road. I would appreciate hearing about it.

I am disputing this ticket. It has a potential 15 day jail sentence, a serious potential consequence justifying adequate discovery. It is a criminal charge, with a beyond a reasonable doubt burden on the prosecution.

Here is the law: 39:4-97. Careless driving

39:4-97. A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.
Amended 1951,c.23,s. 54; 1955,c.220,s. 2; 1995,c.70,s. 3.

It has been declared constitutional by the New Jersey Supreme Court despite an admission of vagueness. The reasoning for upholding the law is that no law can specify the endlessly wide range of dangerous driving.

I demanded full discovery on the records of the officer, including health, driving, complaints, productivity. Due to the subjective nature of the elements of the law, the credibility, character, training of the officer are material.

Here are the planned preliminary motions to dismiss.

1) Violation of Rule 7:7-7 (b) by the prosecution. This charge fulfills the consequence of magnitude in the form of possible jail time. It mandates the production of documents under the control of the government. I move for a dismissal of the charges since the violation made an adequate defense impossible. The subjective, opinion nature of the elements of the charge make the character, training, and knowledge of the officer highly material. I also request sanctions against the personal assets of the prosecutor, not those of the taxpayer for his refusal to obey the clear language of the Rule of Evidence. This stonewalling of discovery is by agents of the prosecutor. He should be held accountable.

2) The sole witness against me will be a fact witness. Yet the elements of the law call for an opinion. It should be against policy to allow the police to make up the law in accordance with their personal preferences. A fact witness may not express the opinions, calculations, and tastes called for in the law.

3) The subjective nature of the charge, and the absence of any objective, measurable damage, make the burden of beyond a reasonable doubt mathematically impossible to meet, unless the probability of damage was greater than 80%. There is no way to show that in the absence of any damage. There is no scientific evidence to support such an increase in the probability of damage.

4) Criminal evidence is subject to the Daubert standard for reliability of evidence. The speculative and subjective nature of the police charge violate the Daubert standard and require an expert opinion to help the court measure the actuarially proven increase in risk.

5) The prosecutor does not dispute that the officer violated four New Jersey traffic laws in this encounter. He just feels it does not matter. The prosecutor says, there is no rule the lawbreaking of the agent of the prosecutor should impact on the validity of the charges against the defendant. Yet, it should be against public policy for a court to reward law breaking with a favorable verdict. If the court allows such law breaking, and actually rewards it, it will get a lot more of it in the future. The court cannot immunize the violation of the law by the police without barring the fruit of the poisoned tree.

Monday, March 29, 2010

DOJ Responds to Freedom of Information Act Request for Suboxone Inspection Material

Looking forward to receiving it in electronic form, not in the form of a massive amount of paper.

Sunday, March 28, 2010

AMA Awareness of DOT Lawsuit

I have had hostile feelings against the AMA, because it does not represent the interests of the clinician. When it shows support for clinical care, I can forgive and forget. I have used their manual on the management of the impaired driver as an example of care. The association of DOT leaders has also supported discretionary reporting of drivers who have shown themselves to be impaired.

One must recall that Pennsylvania DOT requires the reporting of any patient at the time of a list of diagnoses, not after any evidence of impairment.

Disability Council Nominee Not Ready to Lead

22 year old, has Asperger Syndrome. One symptom is endless, mindless lecturing. It will become disruptive. The more these awful bureaucratic bodies are disrupted, the better off the public.

Worst of all is his report calling for laws to prohibit aversive conditioning, restraint, and seclusion in students with disabilities. This shows poor judgment and bias favoring chaos in the class room. This philosophy has become federal law recently, making the jobs of teachers unlivable. Now vicious, mentally disabled predators will assert their rights to attack adults and other children, with full lawyer immunity. Why would anyone pass such a self-defeating, pro-criminality law? The alternative to restraint and negative consequences? Greater staffing. The real losers? Taxpayers. These children who will yield zero return on educational investment, now generate massive government make work. The other winners, lawyers suing teachers for trying to prevent injuries. Students who are violent will be forced on entire classes, and learning can stop for hours until the rage attacks ends, perhaps hours later.

I strongly urge the victims of these vicious predators to sue the Federal government, and state officials, including this nominee. If these pro-criminal advocates want to set guidelines, they should be held accountable for all injuries resulting from their advocacy.

March 27, 2010
Nominee to Disability Council Is Lightning Rod for Dispute on Views of Autism

When President Obama nominated Ari Ne’eman to the National Council on Disability, many families touched by autism took it as a positive sign. Mr. Ne’eman would be the first person with the disorder to serve on the council.

But he has since become the focus of criticism from other advocates who disagree with his view that society ought to concentrate on accepting autistic people, not curing them.

A hold has been placed on Mr. Ne’eman’s nomination, which requires Senate confirmation. Whether the hold is related to the criticism of Mr. Ne’eman (pronounced NAY-men) and what it might take to lift it is unclear.

But Mr. Ne’eman, the 22-year-old founder of the Autistic Self-Advocacy Network, seems to be a lightning rod for a struggle over how autism will be perceived at a time when an estimated 1 in 100 American children and teenagers are given such a diagnosis.

Mr. Ne’eman is at the forefront of a growing movement that describes autism as a form of “neurodiversity” that should be embraced and accommodated, just as physical disabilities have led to the construction of ramps and stalls in public restrooms for people with disabilities. Autism, he and others say, is a part of their identity.

But that viewpoint, critics say, represents only those on the autism spectrum who at least have basic communication skills and are able to care of themselves.

“Why people have gotten upset is, he doesn’t seem to represent, understand or have great sympathy for all the people who are truly, deeply affected in a way that he isn’t,” said Jonathan Shestack, a co-founder of the advocacy group Autism Speaks, whose mission is to help finance research to find a cure.

Tarasoff Duty to Warn Increases Homicide Rate by 9%, after Enactment

Tarasoff warnings thus represent medical malpractice, violating the duty to do no harm. If any plaintiff expert asserts the Tarasoff decision, I would appreciate getting the name.

Doing Their Duty: An Empirical Analysis of the Unintended Effect of Tarasoff v Regents on Homicidal Activity

Griffin Sims Edwards
Emory University, Department of Economics

January 29, 2010

Emory Law and Economics Research Paper No. 10-61

The effect of state duty to warn laws inspired by Tarasoff v Regents has been debated for decades. Required reporting of patient threats to the authorities and potential victims gives incentive to the mental health professional to not meet with the most at risk patients, or at very least make the current state of the law abundantly clear to the patient as to suggest suppression of the most at risk statements leaving the psychologist in liability-free ignorance to the true mental state of the patient. As a result, the mental help needed to treat the patient may be foregone and violence may ensue. Exploiting the variation in the timing and style of duty to warn laws across states, I use a fixed effects model to find that, all else equal and controlling for the prevalence of crack, mandatory duty to warn laws cause an increase in homicides of 9.5% or 0.83 people per 100,000. These results are robust to model specifications, falsification tests, and help to clarify the true, albeit unintended, affect of state duty to warn laws.

Sunday, March 21, 2010

Reply to a Motion to Dismiss on the Pleading

If the case gets past this point, discovery will follow.

Friday, March 12, 2010

Rare Good News for the Victims of Government Bullying, $6.5 Million Verdict Against Government Inspectors

A rare instance of accountability.
Verdict against DEP employees' actions stirs fears
Posted: 03/11/2010 5:38 PM

By Chris Mondics
Inquirer Staff Writer

A federal jury's verdict that four Pennsylvania Department of Environmental Protection employees are liable for $6.5 million in damages stemming from a series of disputed enforcement actions has triggered shock waves in Harrisburg, where officials are voicing concern that they will be held personally liable for efforts to uphold environmental laws.

The verdict, by a jury in U.S. District Court in Philadelphia, found that the four DEP employees had launched an intensive crackdown on MFS Inc., of Bethlehem, a now-defunct manufacturer of industrial insulation and ceiling tiles, as retaliation after the company complained to state lawmakers about unfair treatment.

"We are really concerned by the verdict, and we have a motion pending before [U.S. District Judge Joel Slomsky] to have the verdict thrown out," said DEP Secretary John Hanger. "I believe it is a miscarriage of justice."

Hanger added that the state would also, if necessary, pay the costs of the jury award - a clear signal of concern in Harrisburg, observers said, that the verdict could cause individual DEP officials to pull back and overall undermine enforcement actions in a department that has suffered through a series of budget cuts and downsizing.

Wayne C. Stansfield of Reed Smith L.L.P. in Philadelphia, who is representing MFS, declined to comment yesterday on the verdict.

The case has drawn attention from a wide variety of environmental lawyers and officials, who described it as highly unusual. Typically, state government workers are protected by the doctrine of sovereign immunity, which bars lawsuits against government agencies exercising normal duties.

In this instance, MFS overcame the sovereign-immunity barrier by alleging that the DEP officials individually violated its constitutional right of due process and free speech by improperly enforcing environmental laws and acting outside the scope of their employment.

"I see this as a problem on the enforcement side," said Joel Bolstein, deputy secretary of the DEP from 1995 to 1998 and an environmental lawyer with the Philadelphia firm Fox Rothschild L.L.P. "Up until now, state workers in this agency never imagined that they could be subject to a discrimination claim and personal liability for making a decision on a permit."

The employees, who were sued as individuals, are Michael Bedrin, director of the DEP's northeast regional office; Thomas DiLazaro, former air-quality program manager, who retired; Mark Wejksner, the current air-quality program manager; and Sean Robbins, a lawyer with the agency.

According to papers filed in the case, the dispute dates to late 2001, when the DEP issued a violation notice to MFS for odors allegedly coming from its plant.

Little more than a year later, the DEP issued another citation, a field-enforcement order, late on a Friday afternoon that required the company to respond by the following Monday.

MFS responded by complaining to lawmakers in Harrisburg, who were not identified in the complaint. At least one wrote the DEP expressing concern about the enforcement action.

Shortly thereafter, DEP officials lodged 13 citations against MFS in a two-week period, the documents say. One of the defendants in the case allegedly told an MFS official that he had been irked that the company sought a political solution by reaching out to elected lawmakers.

In an opinion issued last year denying a request that the case be thrown out, Slomsky, quoting press coverage of the case, said one of the defendants, DiLazaro, had declared that "MFS is definitely a nuisance."

The company alleged that DEP officials knew there was another potential source of odor, a nearby sewage-treatment plant. MFS denied that it was the source of the odors and alleged that the DEP never proved otherwise.


Contact staff writer Chris Mondics at 215-854-5957 or

Thursday, March 11, 2010

Doctor Collects from Insurance in Small Claims Court

This is straight collections of debt in small bundled amounts in Small Claims. The doctor represented himself, but did his legal homework, in anticipating and finding the rebuttal for the company's arguments.

I would like to see many doctors go beyond debt for services to patients, to charging for filling out pre-authorization forms, spending time on the telephone for approval, for retrieval of medical records. These are for the benefit of the insurance company. They represent contract in law, generating a debt called quantum meruit.

From the article.

Fla. doctor beats insurer -- in small claims court

In the Courts. By Amy Lynn Sorrel, amednews staff. Posted March 1, 2010.

Physicians are not known for taking health insurer payment abuses lying down, having marched big carriers into state and federal courtrooms in a series of successful class-action lawsuits over the years.

But one Florida physician caught an insurance giant from an angle it was not expecting when he launched an attack in small claims court. The dermatologist's strategy: to win back the roughly $130,000 he contends Humana Inc. owed his practice in unpaid bills since at least 2007, even if it took filing a few small claims at a time.

The strategy worked. The doctor has recouped nearly all of the money."If doctors have a legitimate right to be paid based on services they provided, insurance companies should pay. And if they think they can get away with nonpayment, [doctors] should be aggressive in whatever manner it takes," said Steven Rosenberg, MD, president of Palm Beach Dermatology Inc. in West Palm Beach.

Letters to Humana seeking to resolve the claims on behalf of himself and other doctors in his practice brought no recourse. After his lawyer wrote to the insurer, Dr. Rosenberg said he got a promise from Humana that it would expedite the claims.

"But here we were a year and a half later, and we were still doing this process," he said. "We basically kept getting the runaround, and we got frustrated that Humana was not responding to all our efforts."

He explored hiring an attorney to take his case to civil court. But the 40% contingency fee that would have come from whatever judgment the practice collected was not appealing.

At that point, Dr. Rosenberg put his medical research skills to work. He discovered that for the same $350 he paid the attorney to write to Humana he could file a petition against the company in Palm Beach County small claims court, where parties can represent themselves.

Because damages could not exceed $5,000 per claim, Dr. Rosenberg bundled a few bills together worth that amount, filled out a simple claim form, attached a check and, in the fall of 2009, sued the insurer in small claims court for violating Florida's prompt-payment law.

"Palm Beach Dermatology Inc. has worked for the last 29 months to remedy the issue via Humana's claims appeal/special projects process and through their appointed attorney with no resolution," the one-page complaint stated.
Legal maneuvering

Dr. Rosenberg was met in court by an attorney Humana sent to defend the case. But he was familiar with his legal rights, having been a past president of the Florida Society of Dermatology & Dermatologic Surgery and a former state medical board member, so he successfully rebuffed some of the lawyer's legal maneuvers.

When the attorney tried to argue that the dermatology practice did not obtain the requisite prior authorization before treating patients, the doctor countered that state law gave patients direct access to dermatologists without a referral. And to the insurer's contention that Palm Beach Dermatology failed to first collect payment from patients before seeking reimbursement from the insurer, Dr. Rosenberg fired back that state law prohibited such practices.

Then came a settlement offer. Humana agreed to pay the first set of claims and the doctor's filing fees, totaling $5,340, according to a court judgment dated Oct. 6, 2009. Dr. Rosenberg said the case was heard within a month of filing the lawsuit and resolved the same day.

But he warned Humana's lawyer that the case was only the beginning. "I told him this was the first of 25 claims we were going to be filing."

He took the insurer to court a second time and won again in January. Shortly after he filed the second case, Dr. Rosenberg said the practice began receiving checks in the mail from Humana totaling $90,000.

The insurer sent two representatives to the office to go through the remaining outstanding claims. Since then, Humana has restituted nearly all of the $130,000 Palm Beach Dermatology was owed, Dr. Rosenberg said. "We didn't really know if it was going to work but figured it was worth a try. Obviously, Humana got the message this was going to cost them."

Monday, March 8, 2010

East Brunswick, NJ, Traffic Court - Careless Driving Charge

I recommend attending this court for its entertainment and eye opening effects. The high school honor student with a little alcohol in her breathalyzer test received the maximum sentence permissible under the law. The obviously illegal alien testifying from jail on closed circuit television has no identification papers. So what does the judge do? She dismissed the charges.

I demand full discovery on the state police. The information on the police officer is highly relevant because there is no objective measurement of careless driving. This female judge refuses to grant this request. I reserve my objection for a future appeal.

Wednesday, March 3, 2010

DEA Opens Campaign to Intimidate and Deter Doctors Prescribing Buprenorphine (Suboxone), Then Hypocritically Plays Innocent

The real reason for this campaign?

The Congress wanted more buprenorphine used. The DEA does not want this expensive, brand name medication used in poorer, dark skinned patients. They want the latter on cheap methadone. Even the inspectors may have no awareness of the real motivation.

Doctors feel intimidated. There is an infinite number of deficiencies to be found in every record on earth. There is no evidence that record keeping correlates with quality of care, with patient outcomes, with the prevention of diversion, with fewer overdose deaths.

I filed Freedom of Information Act requests for all buprenorphine related training materials, communications and policy discussions.

Saturday, February 27, 2010

Institute of Medicine Attacks Industry Sponsored Continuing Education

Previewed here. Free registration required.

Some problems.

1) No evidence that continuing medical education serves to improve care or patient outcomes. The doctor has almost no recall of any program or of any reading. His patient experiences are seared in. One goes to a doctor not for book learning but for experience.

2) First Amendment. These doctors forget that the Free Speech Clause is a coin with two sides. One is the freedom to listen to any speech one wishes. The banning of CME programs is unlawful.

3) Conflict of Interest. The alternative to commercial CME is more bureaucracy or putting the $2 billion through medical schools, where the members of the Institute happen to work. We do not appreciate the failure to disclose this conflict of interest in their advocacy.

4) Low Quality Will be Unattractive. Government and other bureaucracies do nothing well. Their low quality and surly service will turn off clinicians.

5) Pretextual. There is no crisis in CME. This witch hunt is one against brand medications. If the sponsors were generic makers, nothing about this subject would have come up.

6) Campaign of doctor intimidation. The taking a pen with a logo may constitute a kick back. The reason? See Item 5.