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.