Saturday, February 13, 2010

System Rigged Airtight Against Falsely Accused Doctors - The Hyde Test

The lawyer hierarchy is totally biased against doctors. It will allow no compensation for the falsely accused doctor, despite clear provision in the Hyde Amendment. This is the second such pro-rent seeking, lawyer biased ruling for this extremist court (see United States v. Manchester Farming Partnership, 2003 C09 11 (USCA9, 2003))

That is why the innocent defendant should counterattack the federal prosecutor, the prosecution expert, and any anti-doctor judge, but during the trial itself. Count on there being no restorative justice after the trial is won. That is true despite the fact the lawyer took their high fees and costs at the point of a gun.

It should start with total e-discovery of the personal and work computers of these enemies of clinical care. I had proposed enjoining a prosecution for an agency for which I worked, at my own expense. They decided against the counterattack. They accepted a plea bargain for one quarter the amount in contention and a compliance program for five years. The cost and disruption of the compliance program dwarfed the cost of a totally guilty verdict. They would have been far better off completely losing the case.

The government is the biggest downloader and subscriber to child pornography. If any is found on a thorough forensic examination of the federal prosecutor's computers, each should be reported to the FBI, and to the Office of Professional Responsibility.

Next, organize direct actions by patients and doctors against these vicious predators. It should begin with a boycott of the lawyers by all product and service providers.

These execrable, biased, anti-doctor appellate judges arbitrarily overturned a lower court decision to award the massive legal costs to the doctor.

"In a Jan. 8 decision, the 9th U.S. Circuit Court of Appeals overturned a rare award to a physician for legal fees he spent defending himself in what turned out to be a failed health care fraud prosecution. Nevada otorhinolaryngologist Mark Capener, MD, denied any wrongdoing, and a jury in 2006 acquitted him of criminal fraud charges after a trial judge dismissed most of the claims.

Although appellate judges agreed that Nevada prosecutors committed several mistakes throughout their investigation, the court said the errors did not rise to the level of misconduct that warranted any recompense."


"The court recognized that it is not necessary to prove all three elements of the Hyde test -- that a claim is vexatious, frivolous and in bad faith -- and that in limited circumstances, a lack of investigation can constitute frivolousness. But the government had no reason to believe its theory was false and did its best to pursue a complex case with the expert information it had gathered, judges said.

"Reliance on an expert may well be faulty judgment in a given instance," the court said. But it generally would not constitute misconduct unless prosecutors knowingly depended on mistaken information.

In this case, however, the government interviewed the pathologist who took the samples, and prosecutors' main expert -- while reviewing only the medical and pathology records -- did not point to any need for further investigation of the related slides, the court noted."

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