David Behar, M.D., E.J.D.

After Every Adverse Communication from a Health Plan

2011-11-13T14:47:00.003-05:00

After every adverse decision or letter from a Health Plan, a letter of complaint about the Medical Director should be sent to the licensing board. Let them spend their time being investigated, and their money hiring lawyers. As they make it tough to do our jobs, so should we return the favor. Here is an example.

State Board of Medicine
P.O. Box 2649, Harrisburg, PA 17105-2649
Phone: (717) 783-1400
Fax: (717) 787-7769
ST-MEDICINE@pa.gov

RE: Unprofessional Conduct; X, MD; Medical Director,
Y Health Plan,
Dear Doctor:
I enclose a copy of a letter from Dr. X. I request that it be investigated for its unprofessional conduct. The blacked out areas have a single patient name. General opinion, commentary, and criticism have First Amendment immunity. This letter’s specific demands, criticisms, etc., represent the practice of medicine, because they are about a specific patient. They are therefore under your jurisdiction.

1) Y is a quasi-governmental organization with the ability to punish doctors. Its actions require a fair hearing. That was not granted nor even offered.

2) I believe Dr. X is not a qualified psychiatrist. He is therefore criticizing doctors outside his scope of knowledge or experience, two psychiatrists. I am board-certified in psychiatry. The Mcare Act requires that any governmental medical action be based on the opinion of an expert with qualifications equal to mine. This letter violates that statute.

3) Assume nothing was wrong with the procedure of Y. This doctor is still giving specific, technical, medical advice about a patient he has never met, nor whose clinical record he has reviewed.

4) His allegation of multiple prescribers of a psychotropic drug over 45 days fails to acknowledge that Dr. Z and I work for the same clinic. We are providing coverage for each other, using the same facility, reviewing the same chart, and seeing the patient when follow up visits are due. There is therefore good continuity of care, not multiple, unrelated prescribers. Clozapine is prescribed to patients who have failed to respond to multiple neuroleptic tranquilizers, and remain dangerous to themselves and to others. Not seeing such patients regularly is substandard care. He is also receiving Seroquel, to reduce the dose of required clozapine, a desirable goal given the side effects of this medication.

Weasel clauses in the standard insert do not detract from the seriousness of the allegation of medical mismanagement being made by this quasi-governmental organization.

Sincerely Yours,

David Behar, M.D.

Request for Advisory Opinions Sent to Licensing Boards

2011-10-10T08:39:00.000-04:00

Sent to three licensing boards.

I am licensed in medicine by your board. I request advisory opinions on the following scenarios with patients. To make things easier for you, I request that you rate the conduct described as unprofessional (U) or acceptable legally and regulatorily (A). You should expect that any opinion you send will be shared with others.

1) A child patient has behaved well with parent earlier, and during an exam. Doctor gives him a lollipop, saying, “This is for your good behavior today.” The cost of the lollipop is 50 cents.

2) A state mental hospital doctor pays an eager mental patient $10 for washing his car, while the car is in the state hospital parking lot, during work hours. Both parties are satisfied by the result.

3) Patients in a program are raising money for an activity. They organize a bake sale or a car wash. A doctor who works there pays $100 for a cake with a $5 charge tag, or a car wash costing $10.

4) A doctor needs computer services. A current patient is unemployed, and desperate for any income. The doctor pays his full fee, for a contract worth $10,000, mutually benefitting both parties. There is no contract dispute, where abuse of private knowledge can be used.

5) Same as 4), but there is a private, not a public contract dispute. The doctor uses personal knowledge about the weak spots of the patient to bully a favorable settlement from the patient.

6) A doctor “friends” a patient on Facebook.

7) As a Facebook “friend,” he sees messages on the page of the patient that he has begun drinking alcohol again, and stopped his blood pressure medication. The patient does not reveal these changes, actually denies them, during a routine visit to the doctor. The doctor confronts and berates the patient (politely, yet firmly) about non-adherence to treatment. This is a reverse scenario as a violation of confidential health information. It uses public information in a private medical encounter.

8) As a Facebook friend, the doctor sees the patient plans to commit suicide or to kill his parents. The patient also says, he has collected a number of working guns. These intentions are denied in medical follow up sessions. Is there a duty to warn under the Tarasoff doctrine? Again this is the use of public information, superceding confidential denials during medical visits in the office.

9) The doctor and a patient fall in love. The doctor refers the patient to another doctor in the same specialty. They have sex, and eventually get divorced from their respective spouses and marry each other. (Please, review this question in light of two cases, Lawrence v Texas at the Supreme Court of the US, and Long v Ostroff decided at the Pennsylvania Superior Court).

Wrongfulness of Lawyer Licensing, Discipline, and Self-Regulation

2011-09-20T01:33:00.001-04:00

The current arrangement of lawyer licensing and discipline violates the separation of powers, and is unconstitutional. It is not even rational, since no group of human beings has ever properly regulated itself in the history of mankind. The results are unfair self-dealt immunities, and countless virtual self-dealt immunities.

There are countless statutorily enumerated duties to the adverse third party in the Rules of Conduct, of Evidence, of Civil and of Criminal Procedure, not to mention case law over 1000 years. Yet, the lawyer is totally immune from liability for damage done to the adverse third party by misconduct. He is almost 99% immune from legal malpractice from his own client. The victim of malpractice must win a double verdict, that malpractice and damage took place, and second that he would have won the original case but for that lawyer malpractice. Next, he must prove that the original defendant was not judgment proof, and that he could have collected from the original defendant. Lastly, he must overcome the defense of the litigation privilege, where faulty judgment is privileged.

If liability is a substitute for violence, then violence against lawyers, and judges has full moral intellectual, and policy justification.

Next, there is no recourse for the public at the licensing level. Almost no civilian complaint is ever investigated properly nor taken seriously. Mostly complaints from judges are.

Writing the The Rules of Conduct is a legislative act. Yet it is done by the Supreme Court of a state. It often plagiarizes these rules from a professional society, the ABA, whose aim is to promote the interest of the lawyer, and not that of the public.

Next, a self-styled prosecutor investigates and prosecutes complaints against the lawyer. That is an executive function. Yet, the Disciplinary Counsel is an employee of the Supreme Court, and claims onto itself all discretions and immunities of a prosecutor, despite not being a real one.

Lastly, the Supreme Court of a state listens to the Disciplinary Counsel's case, the case of its own employee, and a person well know to the court. It then considers the arguments of an outside defense counsel. It is likely to favor which side, that of it s own employee, using all the buzz words provided by the court over time, or that of an argumentative stranger? So the procedural due process right to a fair hearing of the accused lawyer is brazenly violated.

Recovery Movement

2011-09-19T06:57:00.004-04:00

Recently, a local agency was forced to adopt new Mission Statement, Philosophy Declaration in order to keep its referrals and public funding. Many other agencies have been forced to as well by government funding sources. Progress toward recovery is also expected in the documentation, so staff is forced to lie. Say a patient has not spoken in group for 6 months in a partial program, that is not progress toward recovery. So staff has to make stuff up about his improvement.

To argue by analogy, my agency treats paralyzed people. Could the goal not be adaptation to their condition, teaching of new skills to get around, and encouragement to get to wherever they want? This would be the rehabilitation model.

Does the goal for everyone have to be to walk again, and to lie about their progress when they cannot walk at all? Recovery in this context would be impossible, offensive, and cruel as unattainable.

This recovery movement, promoted at the highest levels of the federal government, as well as by bullying, inter-meddling state ideologues requires one thing. Staffing. It is in bad faith, to grow government and to plunder the tax payer without evidence of any benefit to the patient, or the family, or the neighborhood.

Insane Restrictions on Physical Control of Ultra-violent Mental Patients

2011-08-28T13:59:00.001-04:00

The consequence is sever injuries to anyone who works in these facilities. Left wing ideologues in capital cities are using false or incomplete data to support the elimination of restraints, or other physical measures of control of ultra-violent mental patients. Some have been expelled from Supermax prisons as unmanageable.

So what if a patient is going on a rampage in the TV lounge. Staff: well we clear the lounge until the patient is finished three hours later.

OK. What if the patient is choking another, and the other is turning blue? Then we do put our hands on him, and everyone has to lie on the report of the incident.

Why would irresponsible, slow witted, pro-criminal, biased, left wing extremist, state officials seek to go "restraint free?" What is the alternative to physical controls of ultra-violent mental patients? The answer is, more staffing. The main aim is government enlargement, and increased staffing and costs of these institutions. The money motivation makes the rules enactment one in bad faith, to make more money and expand the size of government.

"An Atascadero State Hospital psychiatric technician suffered head trauma and a fractured eye socket after a Wednesday night beating -- just one day after lawmakers convened in Sacramento to consider the violence plaguing the state's five psychiatric facilities and to try to come up with solutions, Sen. Sam Blakelee's office said today.

Blakeslee (R-San Luis Obispo) learned of the assault Thursday and has met with the hospital's executive director for a briefing. His office also spoke to employee groups about the attack.
At Tuesday's hearing, Blakeslee had called on Department of Mental Health officials to expedite the creation of special units for the most violent patients and to send those who are too violent to treat to prison.
"The offender responsible for this attack had made explicit threats against this employee and had a well-established record of violence," Blakeslee said in a statement Friday. "This week’s assault underscores the urgent need for reforms to ensure the most dangerous offenders will be swiftly returned to a correctional facility once violent and assaultive behavior becomes evident.”

A statement provided by the Department of Mental Health to Blakeslee said only that the female employee was assaulted at 8 p.m. and hospitalized in moderate condition. A psychiatric patient was booked into the San Luis Obispo County jail on counts of battery using force likely to cause serious injury. The hospital has initiated a proceeding to have him returned to prison.

Blakeslee learned more during his meeting at Atascadero on Friday. According to chief of staff Christine Robertson, employee groups reported that the assailant had "made it known that his goal was to be returned to prison, so he had been engaged in threats and attacks" and had previously threatened the victim. The patient was in restraints and asked to go to the bathroom, where the psychiatric technician either "loosened or removed the restraint and with the free hand he beat her."

Tuesday's hearing touched on the need to distinguish between predatory violence that is intentional and violence spurred by psychosis-related delusions. Staff members have pushed for a more punitive approach toward those who knowingly commit violence. About 92% of the state's hospital patients have either been arrested or convicted of a crime related to their mental illness. Many are vulnerable and regularly victimized. Others, meanwhile, possess a "prison mentality" and are prone to prey on others."

Coping with Plaintiff Expert Witnesses

2011-08-21T19:10:00.000-04:00

Nice review of the subject at the above link.

"Most state medical boards have the authority to discipline doctors found to have provided unethical witness testimony, said Lisa Robin, chief advocacy officer of the Federation of State Medical Boards. However, each board's process of investigating complaints and enacting discipline differs. Whether states have jurisdiction to punish out-of-area doctors also varies, Robin said.

The American Academy of Emergency Medicine publishes expert witness testimony online.

In Mississippi, doctors from out of state who give deceptive testimony can be prohibited by court injunction from testifying in future cases. The state medical board also can revoke the licenses of doctors who provide false testimony and charge physicians up to $10,000 for investigating a case."

The litigation privilege will trump any licensing authority sanctions, and will be reversed by the courts. The courts want witnesses to be immune for their testimony, however false. This privilege is supported by the Supreme Court in a case where a police officer could not be sued for lying on the stand and sending an innocent defendant to prison for a few years. Little hope for doctors if the immunity is that extreme and even covers the crime of perjury.

Doctors should still report unprofessional conduct to all the licensing boards of the witness. It is just a moral obligation, and a legal one in some states, where there is mandated reporting of unprofessional conduct. Take each shady statement, and report it to each board once a month, so that the h witness remains under investigation for years. I am not aware of any statute of limitations for licensing board reporting.

Some boards will reply that testifying at a malpractice trial is not an act of medicine. It most definitely is. It is an act of super-medicine. It tells the doctors of the state what the standard of due care in a medical matter is.

2) Most of the recourse against plaintiff experts has to be found inside the trial itself. Defense counsel has a conflict of interest making money from having a rial. So they will resists acting against plaintiff experts. One must hire a second private attorney to terrorize the insurance company lawyer into acting a bit different, attacking the expert and seeking to end the trial before it begins.

3) Disqualify the expert.

4) Find a false fact uttered by reading every word uttered by the expert. Demand a mistrial and all legal costs assessed to the personal assets of the expert. Opinion has the protection of the First Amendment. False testimony about facts is perjury and not privileged. For example, the expert claims to have read a document and has not. He claims to have researched an article and has not.

Rapid Change in Consciousness from Low Dose Tramadol

2011-08-21T15:07:00.002-04:00

A patient did not take any prn Ativan that day, took half a tramadol 50 mg. for pain. She woke up chained in an ambulance with no recall of the following. She fell asleep, drifted into the grassy divider of a highway, and eventually came to a stop. Luckily, she did not cross into oncoming traffic. Police arrived, she was in a rage and agitated. She had to be restrained and tied to the gurney. That is what she was told, because she has no recall prior to waking up in the ambulance ride. Most disturbing, this effect was not preceded by gradual sedation. It was sudden. Nothing could be done to prevent it, such as drive onto the shoulder of the road until it passed.

Next day, she tried this experiment, at her house. She did not take any Ativan. She took 25 mg of Tramadol at the same time of day. Within a half hour, she was nodding off and could not be awakened by her family for an hour.

She then spoke to her mother. Mother had the exact same experience with tramadol. This sensitivity to this one drug runs in her family. Her other meds are at ordinary medium doses.

She is on an antidepressant, but had no evidence of a serotonin syndrome, nor of a seizure.

I suggested she get together with her prescribing doctor, get the ER records, and fill out an FDA Adverse event form.

What I Got From my Internet Law School Education

2011-07-04T20:21:00.002-04:00

There are 1.3 million lawyers in the USA. No more is needed, since this number exceeds the number needed by 500,000. When there are excessive lawyers, crime goes up, as the lawyer protects the criminal from citizen self help, the best remedy to crime. The tort lawyer deters not just defendants but entire segments of the economy. Without the lawyer, our growth would be 10% a year. There would be no economic crisis. The lawyer forced banks to lend to irresponsible minority members without ability to pay, just to consume and destroy property values. The family would still be thriving, and not on its last ropes.

So established professionals should forget becoming full time lawyers.

The modern law is based on supernatural core doctrines copied from the Catechism. In order to make modern students accept such supernatural concepts, indoctrination emthods are used in law school, rather than straight teaching methods. Lawyers are welcome to try to fit their law school experience to these methods of changing minds, and indoctrinatin fits best.

1) The basic "science of the law today is Scholasticism. This is a philosophy mostly abandoned by even the Church. It sought to prove the existence of God by observation in nature.

2) One method of Scholasticism was the disputation to arrive at the answer to some important question. That was the likely origin of the adversarial system.

3) The core doctrines of the law were copied from the Catechism.To its credit the Medieval Church attributed these supernatural powers to God, in accordance with their faith. The lawyer believes that people are capable of these supernatural powers.

4) The lawyer believes that minds can be read (intent for every element of a crime), that the future can be forecast (forseeability as the basis of duty).

5) No lawyer today understands the real meaning of the word, reasonable, the central and most important word in the law. One has to wonder why it is the central word, and not any alternative. This obliviousness would include Harvard Law grads with PhD in Medieval Legal History. The indoctrination has been that good.

Reason in Scholasticism is the ability to perceive God. It is the most reliable guide to making moral decision. Intellect is subject to being misled by the Seven Deadly Sins, resulting from the Fall from Eden. The most reliable guide to moral decisions is the New Testament, so St. Thomas Aquinas argued. The reasonable person must be fictional. If any juror bases a decision on a real person, no matter how high functioning, a mistrial will be called. The reasonable person must be fictional, in order to be "objective."What is not said is the the New Testament is the story of Jesus Christ. And the reasonable person is really a stand in for Jesus Christ.

So the adversarial system, the core doctrines, the extensive use of Latin, and the standards of conduct are all derived from the Medieval church methodology. That makes them all violate the Establishment Clause, as much as any legal system based on Sharia might.

One could overlook this violation if the law were effective.

6) Every self-stated goal of every law law subject is in utter failure. Why? Because tgher eis noting from the 13th Century that is in any form acceptable as a practice in the modern world. This is explained by its extreme atavism, and use o Medieval doctrines.

Alternatives to "Life After a Lawsuit"

2011-05-29T17:52:00.007-04:00

The AMA is a trip. This article describes helplessness and victimhood. It says nothing about another side of being sued for malpractice. That is the duty to protect clinical care from the vicious predators coming at it from all sides, including hate filled, scapegoating, entitled, greedy plaintiffs, who are real scum.

Some Perspectives

Doctors are Spoiled and Nearly Immune from Tort Liability

1) Say a practice makes $5 million a year. It gets all upset if it has four lawsuits of any kind. If it were a $5 million welding business, it would have 400 lawsuits all the time, permanently, as long as in business. A large business, such a s Walmart, has 10,000 lawsuits at all times. This predatory practice is a huge heavy anchor on our economy, where a criminal cult enterprise, the lawyer profession, has total control of government, and uses it to enrich and empower itself by plundering all productive entities. This criminal cult knows doctors are crazy and violent once angered, so they stay away, mostly. (See Al Qaida, the Cuban Revolution, Ethnic Cleansing in Serbia, for examples of doctors getting angry.) Doctors are a privileged group, almost immune.

2) When a lawsuit is filed, it fails at a rate of 80% at every stage of litigation. So, the smallest fraction of claims ever reach trial. Once at trial, jurors like doctors and give them the benefit of the doubt. Even in judicial hellholes, the verdicts favor doctors 75% of the time.

3) When spectacular losses make the newspaper, they are misleading. Baby makes $58 million, the headline may say. Baby really makes almost nothing is the reality. They baby will get the limit of insurance, such as $2 million. After the lawyer has taken out expenses and contingency fees, only a pittance is left for the baby. Greedy, low life parents are often shocked by this principle of no "Blood Money."

The Doctor has No Friend in Court Save the Jury

1) The defense lawyer is a traitor working only for himself. He will always want to get to trial because that is the only way to make a profit on a medical malpractice defense. He will allow his client to go through the wringer in a frivolous case to generate the profits from the rial. He does not need the client. He will never do anything that might scare, deter, or even inconvenience the plaintiff bar. He will never go after a biased judge. These are all duties to the client.

2) The doctor must hire, at his own expense, a legal malpractice specialist to terrorize the insurance provided defense lawyer, looking out only for himself, and always orchestrating the case so a trial happens to enrich himself. There should be no pity shown this traitor. The malpractice lawyer must force the defense lawyer to file for motions to dismiss, for motions to disqualify the lawyers, the judges, and the experts. Try to destroy the case as early as possible.

3) The process of discovery must brutalize all the enemies of clinical care, including the pro-lawyer biased judge, a hack, only slightly more morally upright than the felons passing thorugh his court. The judge is scum, and must not be spared any pain possible. Judges must come to pee their pants whenever a doctor enters the court, rather than the other way around. The judges are base cult criminals, sworn enemies to clinical care, scum who allow frivolous cases to proceed and refuse to punish irresponsible plaintiff lawyers. Demand all out e-discovery on the plaintiff, his entire family, the plaintiff lawyer for an improper motive, on all the named experts, and on the judge for his anti-doctor bias or pro-litigation bias. A full search for content in social networks should be done for all the adversaries.

This is a proper motive for the tort claim: to make the plaintiff whole with money damages. Period. Every other utterance should result in a motion to dismiss, or to disqualify. For example, "It is not for the money." An improper motive. To prevent this from happening to others. To find out what happened. To send a message to the health care system. Any utterance indicating frustration or hate for the doctor. All improper motives. Use all appearances in the media as evidence of improper motive, since these are to get attention and notoriety, to embarrass the defendant into offering a settlement. All depositions should be relentless in their search for these case ending statements.

No Courtesies Nor Civility During the Trial

1) The malpractice lawyer must second guess every move or failure to make a move by the defense lawyer.

2) Ask the judge to question the jury in mid trial, whether any has used any electronic means to independently research any aspect of the parties or of the case. This is irresistible. It will be true at nearly every trial. Demand a mistrial and legal costs.

3) Use every utterance of every adversary, including those of the judge as a basis for many ethics complaints, using a specific Rule of Conduct from the applicable law covering professional ethics. This may generate dozens of complaints against the plaintiff lawyer, the experts, the judge. Generate dozens of investigations against each, so they all live in uncertainty, and not just the defendant, as in this article cited above. These investigations may have to be carried out for months after the end of the case. They have driven the targets from the field.

4) File cross claims against all other defendants. If one decides to settle, he will need your consent. You would not let anyone out unless they paid you or your wanted to. People will settle, and leave to suffer a trial alone. Do not allow that without thinking hard about it.

5) A doctor in the article sued the plaintiff and the lawyer for misuse of a civil procedure. This measure after the trial is a waste of time. The legal system is rigged airtight to encourage litigation and lawyer employment. One must possess proof in the form of a writing or recording of the lawyer confessing that the case was filed with knowledge of its lack of merit or confessing an improper motive. Impossible.

Alternative to the Misuse of a Civil Procedure after the Trial

The sole remedy to the frivolous claim must be found in the trial. The trial judge has limitless powers to punish the attorneys with costs, jail time, and seizure of personal assets, even dismissal of the case for misconduct (generating a legal malpractice case by the client). Make the defense lawyer traitor demand sanctions against the expert for any misstatement of facts (opinion is immune), against the plaintiff lawyer for misconduct (the doctor defendant should study the Rules of Civil Procedure to make informed demands of the defense lawyer.

6) The tort defendant has procedural due process rights, the Supreme Court affirmed in reversing excessive punitive damages against an insurance company. One such right under is a right to a fair hearing. The defendant should take this list of biases, use it as a checklist, and see if any apply to the case, and demand a motion to dismiss if found (as early in the case as possible). Here is the list of biases. The most important in medical malpractice are hindsight bias and outcome bias. The defendant may even blame himself and harbor an outcome bias against himself. This bias can be demonstrated to exist in defense experts. These are no more acceptable than other biases such as those against minorities.An argument using cognitive bias has never been made, let alone tested in a medical malpractice case, so the defense lawyer will resist it as having no precedent.

Deter the enemies of clinical care. Personal destruction has good moral validity. It is indeed a duty of the doctor defendant, to protect clinical care from its relentless enemies.

Nursing Home Litigation Not Related to Quality

2011-04-03T13:04:00.000-04:00

According to the article, litigation increased in the 1990's. That happened to coincide with the greater funding of nursing care. The best correlate of litigation is assets not quality. The tort system is a really a system of lawyer plunder.

"High-quality nursing homes get sued almost as often as low-quality nursing homes, a new study shows. Researchers say the finding illustrates that litigation, or the threat of litigation, doesn't lead to improvements in patient care. Nor does it appear that better nursing homes are rewarded for superior care in terms of fewer lawsuits."

NYT Article Bashes Modern Emphasis on Psychopharmacilogy

2011-03-13T09:58:00.001-04:00

Talk Doesn’t Pay, So Psychiatry Turns Instead to Drug Therapy

Richard Perry/The New York Times

“I had to train myself not to get too interested in their problems, and not to get sidetracked trying to be a semi-therapist.” DR. DONALD LEVIN, a psychiatrist whose practice no longer includes talk therapy.

By GARDINER HARRIS

DOYLESTOWN, Pa. — Alone with his psychiatrist, the patient confided that his newborn had serious health problems, his distraught wife was screaming at him and he had started drinking again. With his life and second marriage falling apart, the man said he needed help.

But the psychiatrist, Dr. Donald Levin, stopped him and said: “Hold it. I’m not your therapist. I could adjust your medications, but I don’t think that’s appropriate.”

Like many of the nation’s 48,000 psychiatrists, Dr. Levin, in large part because of changes in how much insurance will pay, no longer provides talk therapy, the form of psychiatry popularized by Sigmund Freud that dominated the profession for decades. Instead, he prescribes medication, usually after a brief consultation with each patient. So Dr. Levin sent the man away with a referral to a less costly therapist and a personal crisis unexplored and unresolved.

Medicine is rapidly changing in the United States from a cottage industry to one dominated by large hospital groups and corporations, but the new efficiencies can be accompanied by a telling loss of intimacy between doctors and patients. And no specialty has suffered this loss more profoundly than psychiatry.
Trained as a traditional psychiatrist at Michael Reese Hospital, a sprawling Chicago medical center that has since closed, Dr. Levin, 68, first established a private practice in 1972, when talk therapy was in its heyday.
Then, like many psychiatrists, he treated 50 to 60 patients in once- or twice-weekly talk-therapy sessions of 45 minutes each. Now, like many of his peers, he treats 1,200 people in mostly 15-minute visits for prescription adjustments that are sometimes months apart. Then, he knew his patients’ inner lives better than he knew his wife’s; now, he often cannot remember their names. Then, his goal was to help his patients become happy and fulfilled; now, it is just to keep them functional.

Dr. Levin has found the transition difficult. He now resists helping patients to manage their lives better. “I had to train myself not to get too interested in their problems,” he said, “and not to get sidetracked trying to be a semi-therapist.”

Brief consultations have become common in psychiatry, said Dr. Steven S. Sharfstein, a former president of the American Psychiatric Association and the president and chief executive of Sheppard Pratt Health System, Maryland’s largest behavioral health system.

“It’s a practice that’s very reminiscent of primary care,” Dr. Sharfstein said. “They check up on people; they pull out the prescription pad; they order tests.”

*******

It is impossible to do psychopharmacology without cognitive advice and content. The latter is a form of rehab, similar to physical rehab and exercise after an orthopedic operation. It is indispensable to the successful orthopedic operation. No surgeon would denigrate, short change a patient on it without hurting his outcomes.

For example. One has to say this or fail in treatment.

Your Abilify will reduce your impulsivity and will solely give you 5 seconds to think before acting. It does not give you the correct answer about what to do, nor coping skills, nor skills in getting what you want and need.

A year later, patients say, I have been doing it for months. Abilify taught me to think first. I can do it on my own. They stop the Abilify with their doctor, and many are right. They no longer need it, duplicating its effect with irreversibly learned skills.

Those skills are the rehab, the exercise of the operated limb. Does an orthopedic surgeon berate herself for not doing rehab, but for merely prescribing it for others to do? No. Nor should we berate ourselves for not doing extensive psychotherapy. The surgeon may briefly describe the exercise needed for success of the operation to the patients, and so may we. But sitting there practicing repetitive rehab is not the best use of time.

As to conflict of interest evidenced by withholding the possibility of response to psychotherapy.

All professions have a conflict of interest in making more money, the more people have problems, and less the more problems are solved. Professionalsim, pride in craftsmanship, and need to enhance reputation are all motivations for accuracy of advice, rather than trying to rip off the patient.

But try to give a bereaved person anti-depressant instead of counseling, they get a bunch of side effects, do not return, and bad mouth the psychiatrist to the referring family doctor or pastor. No psychiatrist will want that.

Eat a Sandwich from a Drug Rep, Get Reported to the IRS

2011-03-02T04:21:00.000-05:00

I understand that drug companies will begin to send 1099's to doctors and others accepting meals. I wanted to get an opinion letter from the IRS about this practice. I believed those were gifts, not income. For example, I come to your home. I bring your wife flowers. Do I have to 1099 your wife at the end of the year? I thought the flowers were a gift. She did not work for me.

My accountant straightens me out:

"The following significant increases in user fees will apply:

... The fee for a private letter rulings will increase from $7,500 to $10,000, except as provided for certain reduced fees explained below. A private letter ruling is a written statement issued by the IRS Associate Office to a taxpayer in response to its written inquiry about the tax effects of its acts or transactions or its status for tax purposes before the required filing of returns or reports.

Under the new fee schedule, taxpayers with gross income of less than $250,000 can request a private letter ruling for a reduced fee of $625 while a fee of $2,500 will apply to requests from taxpayers earning from $250,000 to $1 million. Currently, a $625 fee applies for a request that involves (1) a personal tax issue from a person with gross income of less than $250,000 or (2) a business-related tax issue (for example, home-office expenses, residential rental property issues) from a person with gross income of less than $1 million.

... User fees for information letter requests are imposed for the first time, at $2,000. Information letters provide a general discussion of the law on a subject, not directed to any particular set of facts. Such letters can be issued when the taxpayer has asked for a letter ruling, but for some reason the Chief Counsel could not issue it. The taxpayer cannot rely on information letters.

In answer to your question, if you are deducting the flowers for my wife, a bottle of wine, or a box of chocolates, it is considered a business gift. Such gift are limited to $25/year to any single recipient [Code Sec. 274(b)].

If you buy a patient or colleague a meal, as long as there is a bona fide business discussion before, during or after the meal, you can deduct ½ of the cost. If you want to deduct 100%, the patient or colleague needs to pick it up as income. It appears that is what is happening here. The pharmaceutical companies are probably deducting 100% of the costs and making the Doc’s pick up the meal fair market value."

Many Medical Malpractice Claims Motivated by Anger. This is an Improper Motive

2011-01-12T05:58:00.005-05:00

What the doctor is trying to say is the evidence points to personal animus as motivating most malpractice claims. Such a motive is an improper motive and represent lawyer malpractice if it is the real reason for the lawsuit, and the alleged deviation from standards of care and its alleged harm is just a legal pretext. The filing of such a retaliatory claim is an improper use of a civil procedure and itself a tort. The subject of anger should be deeply explored in any patient and family deposition. Then the doctor should file a countersuit against the lawyer, the plaintiff and any family member who encouraged the claim. An attempt should be made to get an injunction from a higher court against any judge allowing such venomous claims to proceed beyond first pleading to dismiss.

The overwhelming majority, perhaps up to 80%, of medmal claims are weak claims. They fail at every stage of litigation. The innocent doctor should not settle, and should consider countersuing the lawyer predator. To deter.

Because there is a first duty to survive and to stay open, the cover up is the most common response of any health entity to medical error. All investigational material will be subject to discovery and may ruin the health entity. One may conclude that these weak, hate filled, retaliatory lawsuits result in the shut down of investigations into systemic improvements that would eliminate medical errors. Every preventable medical error may therefore be caused by the medical malpractice lawyer, with no exceptions.

The Safeway Massacre. Thank the Supreme Court Again for the Murderous Rampage of a Paranoid Schizophrenic

2011-01-08T20:48:00.001-05:00

Now this mass murderer qualifies for involuntary admission to a psychiatric hospital. Of course, first, there has to be a hearing employing 3 lawyers, one to prosecute, one to defend his freedom to the death, of others, naturally, and one to sit in the middle to make the decision. This judge, the lawyer in the middle, is totally unqualified to make any such clinical decision. Yet, this know nothing lawyer will loose the most vicious mentally people on the public, in pure evil.Paranoid schizophrenics murder around 2000 people a year, often with little or no provocation. Every single one of those murders is the responsibility of the rent seeking, lawyer sinecure creating, irresponsible Supreme Court.

Organized medicine has also failed to do enough to enact legislation overturning the horrid Supreme Court decision that took over psychiatry in 1976 to generate lawyer jobs. That decision had no justification since there was no abuse by clinicians signing two commitment certificates. And, if there were abuse, the doctors would suffer an endless series of investigations and punishments.

In the case of the paranoid schizophrenic who killed dozens of people at Virginia Tech University, there had been dozens of complaints about his psychotic statements, and threatening behavior for over two years. Yet, the lawyer protected pure evil from even reporting him to his family so they might get him back into treatment.

On the positive side, the public helped itself by taking a shot at him, and by tackling him. One worries that those heros will be prosecuted by the lawyer.

There Is No Child Psychiatrist Shortage, Just Laziness

2011-01-02T02:20:00.002-05:00

Pediatrics and Family Practice sees 4600 and 4200 visits a year. Child and Adult psychiatriy see 2100 ambulatory encounters in 2009, each. This implies there is no shortage of psychiatrist or of child psychiatrists. It implies they are half as productive, and lazy. We do not need more psychiatrists or child psychiatrists, we need more that are willing to work harder. Earnings have not increased much. That means our productivity has stagnated as well. If the productivity of psychiatrists could approach that of Pediatrics or Family Medicine, it would be equivalent to doubling the supply of psychiatrists. The latter would also have the justification for demands of higher salaries and wages.

Court Overturns Vermont Prohibition of Doctor Prescription Tracking

2010-11-26T01:15:00.001-05:00

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.

Update: Meeting with Pharmaceutical Company Corporate Counsel Next Week

2010-11-05T23:52:00.000-04:00

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.

Judge Allows Deposition of Plaintiff Lawyer

2010-10-22T05:34:00.000-04:00

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'

Alison Frankel

The American Lawyer

October 22, 2010

Related Items

Documentary Outtakes Show Fraud by Plaintiffs, Chevron Claims

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.'"

DEA to Chronic Pain Patients: Suffer.

2010-10-03T20:37:00.001-04:00

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

By JOHN LELAND

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.

Judge: Despite Defense Jury Verdict Drug Company Must Pay

2010-09-22T06:47:00.000-04:00

Bizarre.

Judge: Pharma Company Overcharged State by $27.6 Million

Amaris Elliott-Engel

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.

Meeting with Pharmaceutical Company Corporate Counsel Next Week

2010-09-15T13:50:00.002-04:00

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.

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

2010-08-15T17:16:00.002-04:00

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.

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

2010-08-05T23:02:00.000-04:00

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.

Never Events: Trojan Horses for Death Panels

2010-08-01T22:23:00.001-04:00

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.

1952 Cunningham in the Rain

2010-07-10T15:42:00.006-04:00

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

2010-07-10T00:46:00.000-04:00

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.

Distress About the Doubling of Army Suicides

2010-07-03T09:28:00.000-04:00

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

2010-07-03T09:15:00.000-04:00

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.

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

2010-06-28T17:31:00.001-04:00

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.

Letter from Medical Directors of Pharmacy Benefit Plan to Psychiatrists

2010-06-24T16:49:00.000-04:00

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.

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

2010-06-20T23:42:00.003-04:00

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.

Law Student Outside of Top 8 Schools Have It Really Tough

2010-06-16T23:25:00.000-04:00

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.

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

2010-06-13T21:35:00.002-04:00

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]"

Traffic Court as a Bunko Operation

2010-06-03T01:52:00.001-04:00

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.

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

2010-05-23T03:44:00.004-04:00

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.

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

2010-05-15T18:29:00.002-04:00

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.

Less Painful Pre-Authorizations

2010-05-08T12:45:00.000-04:00

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

2010-05-08T12:35:00.001-04:00

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

2010-05-08T07:38:00.004-04:00

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.

Lawyer Deceit Statutes

2010-05-07T23:08:00.000-04:00

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

Abstract:
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.

Medical Students Learn About Safety

2010-05-02T18:08:00.001-04:00

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 / www.torisoper.com]

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

2010-05-02T16:48:00.001-04:00

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.

Is Psychiatry Finished?

2010-05-01T10:55:00.001-04:00

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.

Attack on Locality Rule Unwarranted

2010-04-29T06:35:00.000-04:00

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.

False Claim Act Attacks on Off Label Promotion

2010-04-27T07:50:00.000-04:00

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.

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

2010-04-25T11:48:00.002-04:00

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.

The East Brunswick, NJ, Municipal Court and Traffic Offenses

2010-04-09T23:47:00.002-04:00

Lessons:

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.

Nice. Trial Lawyer Association Sues Other Trial Lawyer Association

2010-04-06T07:04:00.001-04:00

"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."

Planned Preliminary Motions for Careless Driving Charge in New Jersey

2010-04-04T22:21:00.000-04:00

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.

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

2010-03-29T15:40:00.000-04:00

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

AMA Awareness of DOT Lawsuit

2010-03-28T18:41:00.001-04:00

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

2010-03-28T18:31:00.000-04:00

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
By AMY HARMON

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

2010-03-28T16:13:00.000-04:00

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

Abstract:
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.

Reply to a Motion to Dismiss on the Pleading

2010-03-21T22:16:00.000-04:00

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

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

2010-03-12T01:56:00.001-05:00

A rare instance of accountability.

Philly.com
Business
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 cmondics@phillynews.com.

Doctor Collects from Insurance in Small Claims Court

2010-03-11T08:47:00.000-05:00

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."

East Brunswick, NJ, Traffic Court - Careless Driving Charge

2010-03-08T23:44:00.000-05:00

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.

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

2010-03-03T03:25:00.001-05:00

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.

Institute of Medicine Attacks Industry Sponsored Continuing Education

2010-02-27T19:03:00.001-05:00

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.

Court Overturns Certificate of Merit Requirement for Medmal Claim

2010-02-20T19:35:00.000-05:00

The certificate of merit requirement is an absolute shield for the plaintiff lawyer against subsequent misuse of a civil procedure counterclaim or against an ethics complaint with the Disciplinary Counsel for filing a frivolous lawsuit. Striking it down is striking down a lawyer immunity.

Every doctor should put away $10,000 to fund lawsuits and administrative complaints holding plaintiffs, experts, and lawyers accountable.

Georgia Supreme Court Allows Demand for Med Mal Expert's Own Record of Treatment in Similar Case

2010-02-18T00:01:00.001-05:00

In a prior post, it was suggested that the plaintiff expert produce 4 or 5 of his own records on similar case to verify his actual compliance with the proposed standard of care. Any demand for defense expert records should be resisted for the reasons listed in that post. Here.

Click on the title of this post to read the entire review of this decision. And the Condra decision here.

"Consistent with the law in effect at the time, the Court of Appeals upheld the trial court’s ruling excluding the personal practice evidence. However, following Condra, the Georgia Supreme Court remanded the case back to the Court of Appeals to reconsider in light of that decision. Upon reconsideration, the Court of Appeals found that the same reasoning employed by the Supreme Court in Condra would apply to any case where evidence of the physician's personal practices could be construed by the jury as calling into question the credibility of the physician's testimony at trial, irrespective of whether the physician was a standard of care expert. In other words, “evidence that [the treating physician] routinely took the same precaution to guard against infection that he now claimed would not have made a difference in the present case arguably called into question the credibility of such a claim.” Concluding that the exclusion of evidence of the treating physician’s personal practice undermined the jury's ability to fully evaluate his credibility and deprived plaintiff of her substantial right to a thorough and sifting cross-examination, the Court of Appeals ordered a new trial where such evidence would be admissible."

System Rigged Airtight Against Falsely Accused Doctors - The Hyde Test

2010-02-13T23:44:00.003-05:00

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."

And,

"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."

Irresponsible Opioid Prescribing

2010-02-07T03:03:00.007-05:00

I received a letter from the Chairman of the Pennsylvania Medical Licensing Board. He endorsed the book, Responsible Opioid Prescribing, by Scott Fishman, with the imprimatur of the Federation of State Medical Boards (click on the title above to order a copy). I suggest the following in response to this garbage.

All out legal counterattack on the enemies of clinical care, including the members of the Licensing Boards, the Federation of State Medical Boards, and any other garbage guideline peddler. The innocent defendant should have no feeling of mercy in defending clinical care from garbage guidelines and attempts at intimidation of the doctor out of pain management. The list below takes dozens of hours a patient, and will deter all but a few specialists. The sponsors should also be named,

Abbott Laboratories
Alliance of State Pain Initiatives
Alpharma Pharmaceuticals LLC
American Academy of Pain Medicine
American Cancer Society
American Pain Foundation
American Society for Pain Management Nursing
Candlelighters Childhood Cancer Foundation
Center for Practical Bioethics
Cephalon, Inc.
Endo Pharmaceuticals*
Federation of State Medical Boards Research and Education Foundation
International Association for Pain and Chemical Dependency
King Pharmaceuticals
Lance Armstrong Foundation
Mayday Fund
National Pain Foundation
Pain and Policy Studies Group, University of Wisconsin
Purdue Pharma L.P.
SAMHSA/CSAT (Substance Abuse and Mental Health Services Administration/Center for Substance Abuse Treatment)

These oppressors of clinical care should be held accountable for their interference with clinical care. If any doctor is persecuted for trying to relieve the chronic and impairing pain, insist that the defense lawyer attack the persecutors.

1) Total e-discovery of all personal and government computers of the licensing board prosecutor, and of all members of the licensing board, and of all policy, responsible officials above them in the department.

2) Demand all pain management records of every member of the licensing board, of Dr. Fishman. If any record, fails to contain any single element listed below, file charges of unprofessional conduct against the doctors and report them, not just to their respective licensing boards, but to the Drug Enforcement Administration.

3) Demand all evidence that the content or quality of records has any correlation with outcome or with any other indicator of quality of care. It does not correlate. These paper shufflers have no justification for their standards.

4) Racial discrimination. The undue burden of this garbage text will cause delays and preclusion of patients in agony. The unnecessary time requirement and high fees will all but exclude everyone on Medicaid. Because people with dark skins are over-represented in such groups, this book is inherently racist. Rich white people can afford to have the requirement met below. Poor darker folks in agony, may rot in agony, this book is implying.

5) Organized medicine should seek to enjoin these garbage guidelines because they will bring pain management to a standstill, and violate the revised ADA.

From the book, the FSMB model policy requires the following. The more difficult the patient, the more time should be allotted. Get into the circumstances of the patient’s difficult life. Just repeat what the patient is saying in reflective listening.

Evaluation: comprehensive history (pain location, character, maximum and minimums, onset, exacerbation, amelioration, effect on sleep, mood, work, relationships, sex, recreation, involvement in litigation), physical examination (definition not established), screening for drug addiction (nothing established as standard, CAGE, drug and alcohol evaluation).

Treatment Planning: objective measurements, multiple functional improvements required, reconditioning, not elimination of pain or big score decreases, revisions of functional treatment plans.

Informed Consent and Agreement to Treatment: collaborative decisions, expected outcomes, goals, informed consent, education about the risks and benefits , need to inform doctor of side effects, use of other medications, changes, time of agreement, consent to communicate with other health providers, where agreement kept, privacy rights, administrative details, missed appointments, single pharmacy use, emergencies, terms of termination, abuse, violating agreement, inappropriate behaviors, no improvement, pregnancy, tolerance, toxicity, overdosing, medication seeking, selling medication, stopping abruptly, limit on replacing lost medication, limit on refills, random urine screens, education on withdrawal and on tolerance, addiction risks and behaviors, single pharmacy, drug interactions, masking, driving, misuse, legal consideration, specifics of prescriptions.

Periodic Review: functional goals, adherence, lab testing, pseudo-addictive behavior from inadequate pain relief, listening, attention to entire patient, referral, adjustment of doses, modification of goals, revisions of agreement, complete documentation with descriptions of risks of actions and of inactions.

Consultation: do early, gather records and data for consultant’s use, request specifics, plan, communicate with consultant, inappropriate patient behavior, listening, non-confrontational approach, avoid talking down, include the patient in decisions, look at contexts, set limits on behavior, maintain safety, terminate with a witness, send letter, tapering of drugs causing withdrawal.

Medical Records: assessment, treatment agreements, education, action plans, outcomes, monitoring, history and physical, test results, consultations, reviews, medications, pain intensity levels, levels of functioning, subjective complaints, objective findings, diagnosis, treatment objectives, discussion of risks and benefits, informed consent, instructions and agreements, plans for review,

Compliance with Controlled Substances Laws and Regulations: The content of the 67 page DEA manual

http://www.deadiversion.usdoj.gov/pubs/manuals/pract/pract_manual012508.pdf

Impulse Control Disorders in Parkinson Disease, Induced by Medication

2009-12-01T00:01:00.003-05:00

(Free Registration for access to the above linked article.)

Drug companies have been sued for gambling losses. They may increase the risk among several factors. Plus, in torts, there has to be an injury. The companies were forced to pay for the fun these folks had. They already had a familial tendency, and ready availability of the vice. It is unclear to me whether the medication merely made them more active and likely to do what they had always wanted to do, anyway.

"The self-administered Questionnaire for Impulsive-Compulsive Disorders in Parkinson's Disease (QUIP) takes but several minutes for patients to complete. QUIP is the product of a collaboration between many of the leading investigators in the field of impulse-control disorders (ICDs) in Parkinson's disease, who recognized that it's impractical for busy office-based practitioners to find time to conduct lengthy diagnostic interviews with all of their patients who have Parkinson's, Dr. Daniel Weintraub explained at the annual congress of the European College of Neuropsychopharmacology.

The need for a brief screening instrument was highlighted in a landmark cross-sectional study led by Dr. Weintraub, which demonstrated that ICDs are relatively common in the setting of Parkinson's disease, being present in one in six patients.

Fourteen percent of the 3,090 Parkinson's disease patients under age 75 surveyed at 46 U.S. and Canadian movement disorder centers had at least one of the four major ICDs, involving pathological gambling, compulsive buying, binge-eating behaviors, and compulsive sexual behavior. Comorbidity was common: Among patients with an ICD, 36% had more than one, added Dr. Weintraub, a psychiatrist at the University of Pennsylvania, Philadelphia.

Although ICD is the generally accepted term for these behaviors, they have also been referred to as appetitive behaviors or behavioral addictions. These are not life-long behaviors in affected individuals; rather, they are changes that emerge during the course of Parkinson's disease and cause significant and often enduring distress or impairment.

“These ICDs are not pleasurable activities anymore, but something they feel they need to do,” Dr. Weintraub explained.

Pathological gambling was the first ICD to be described in patients with Parkinson's disease when the association was initially recognized half a dozen years ago, but in fact all four ICDs were roughly equally prevalent in the North American survey.

In a multivariate analysis, by far the strongest correlate or risk factor for ICDs was being on dopamine-agonist therapy, which carried a 2.7-fold increased risk. Indeed, the population-attributable risk of dopamine-agonist treatment was 49%, meaning nearly half of all ICDs could be attributed to the drug therapy.

The ICD risk was not affected by the specific agent prescribed, nor was it dose dependent.

Other independent correlates with ICDs included current smoking, age 65 or younger, levodopa therapy, being unmarried, and living in the United States. Specifically, Americans had higher rates of compulsive buying and gambling, which Dr. Weintraub attributes to the prevailing social/cultural milieu.

A family history of gambling problems was associated with increased rates of all of the ICDs except sexual behaviors. There was no gender difference in the overall rate of ICDs; however, compulsive sexual behaviors were vastly more common among men, and binge-eating behaviors and compulsive buying were significantly more common in women."

Medication Enhances Female Sexual Interest

2009-11-29T03:17:00.001-05:00

This drug will be most welcome for low sexual desire and to counteract the side effect of SSRI anti-depressants.

" Nov. 13 (Bloomberg) -- Boehringer Ingelheim GmbH is banking on sex really being all in women’s heads.

The German drugmaker is putting the finishing touches on a pill designed to reawaken desire by blunting female inhibitions. Unlike Viagra, which targets the mechanics of sex by boosting blood flow to the penis, this drug works on the brain.

The desire drug, the focus of a meeting on sexual disorders in Lyon next week, has the potential to revolutionize sexual medicine much as Pfizer Inc.’s blue pill did a decade ago. That could put family-owned Boehringer at the center of a debate about whether the medicine is a chemical shortcut around a complex dysfunction involving body and mind -- or whether disinterest in sex is a legitimate medical condition.

“This drug has the potential to finally open the door to acceptance of the idea that decreased desire can be something that involves a dysfunctional way the brain works, and not only a bad partner,” said Jim Pfaus, a neurologist at Concordia University in Montreal, who conducted early tests of the drug in rats. “Of course it’s in your head.”

The U.S. market for medicines to rekindle female libido could be bigger than the $2 billion a year in U.S. sales for erectile dysfunction treatments because more women report sexual problems, BioSante Pharmaceuticals Inc. Chief Executive Officer Stephen Simes estimated last year."

Medical Malpractice Litigation Stress: What No One Will Tell the Doctor Victim of Lawsuit Abuse

2009-11-27T20:28:00.006-05:00

There is an inherent conflict of interest of all parties in a case, save that of the jury. The jury is the sole friend of the innocent doctor. All others are backstabbing mortal enemies. The standard advice in this article is wrongheaded. The innocent defendant doctor has a moral duty to attack and to utterly destroy the other side, and to totally intimidate the insurance company and its running dog, the insurance defense lawyer. This is to protect clinical care from plunder by all sides. It is strongly recommended that the defendant doctor hire a private attorney to defend his interest against the insurance company and the defense lawyer it has hired on the cheap. The private attorney should get the instruction to show no mercy to the enemy.

Insurance Company. Even if doctor owned, its interests lay in churning litigation. The doctor officers get high salaries when lots of premiums are collected. They will oppose any measures that will deter the filing of weak claims.

Insurance Defense Attorney. This defense lawyer gets paid a tiny amount. It is impossible that it even covers overhead. The doctor will learn what it feels like to be an HMO patient, when he gets minimal legal care from this defense lawyer. The latter will always try to get to trial to just break even. He will refuse to file motions to dismiss. He will refuse to seek sanctions against the other side for their misconduct. He will refuse to go after a biased judge. That is where the private attorney comes in. If the doctor complains, he will be dismissed, as not knowing any law. If the private attorney, preferably specializing in legal malpractice speaks, the defense lawyer will take notice, and be less dismissive. The private attorney should repeatedly threaten to sue the defense lawyer in writing every time he refuses to be more aggressive in getting rid of the case.

Plaintiff Attorney. The doctor should read the Rules of Conduct of the state, covering the licensed lawyer. Every utterance that in the least hints at a violation should be reported to the Disciplinary Counsel. If he is licensed in multiple states, file one complaint a month. Prolong the period of investigation. If kept confidential, the complaints have legal immunity. They may be shared with the personal lawyer. Demand total e-discovery of the plaintiff lawyer, including all social network sites back to kindergarten. Try to get a hold of the personal and work computers. The justification is to search for an improper motive for the lawsuit. If child porn, any other shady activity, or prejudiced utterance is found, put into the public record. Report all child porn to the FBI. Try to destroy the life of the plaintiff attorney, just as he doing to the doctor.

Plaintiff. Demand total e-discovery, and deep background checks on the plaintiff and its family.

Plaintiffs are always boohooing on TV. It is unclear if adverse information about the plaintiff and the plaintiff lawyer should not be trumpeted in public. The lawyers say they advise against that because all statements will be used against the defendant at trial. That is an open question.

Plaintiff Experts. There is no recourse outside of the trial against the false testimony of the plaintiff expert. The defense lawyer will accept this person as it comes. No. The defendant is an expert himself, and that should be used. The defendant should read every word the plaintiff expert has ever uttered, in articles, in depositions. If the expert has little experience to offer, the private lawyer must force the insurance company defense lawyer to move to disqualify. If that cannot be done, read every word for contradictory statements to impeach the expert on the stand. The Golden Fleece of research on the plaintiff expert is the utterance of a false fact. Opinion cannot be verified nor contradicted, and is protected by the Free Speech Clause, and several Supreme Court decisions. The assertion of a false fact in any submitted document or testimony is perjury and a crime. Once found, a motion to declare a mistrial should be made, and all legal costs should be assessed to the private assets of the lying witness.

Here.

This article advises the standard advice of taking it in the rear quietly.

"Plaintiffs bringing medical liability cases commonly contend they have experienced pain and suffering. Many physicians could say the same about being dragged into the litigation process.

Karen Kohatsu, MD, a San Diego-area obstetrician-gynecologist, was confident she would prevail when she was sued a couple of years ago, but isolation and sleepless nights still reigned throughout the process. The suit was eventually dismissed.

"Self-doubting occurs when you read the summons and depositions from the other side," she said. "The other side makes it sound like you are a terrible person for missing a diagnosis. You feel really alone and have to turn everything inward because you don't have anyone to talk to about it."

Dr. Kohatsu is not alone.

Experts say litigation stress syndrome is a real phenomenon, and one that has a significant impact on physicians. Various emotions, including anger and depression, can strike, along with an inability to concentrate.

When physicians are counseled by their lawyers not to talk about the case, most take that to mean they can't talk about the experience at all, experts said. But increasingly liability insurers and professional medical societies are instituting programs designed to help physicians deal with the emotional rigors of litigation stress.

"In the big picture, we want to normalize the experience of litigation," said Ronald L. Hofeldt, MD, a psychiatrist in Salem, Ore. He serves as a consultant to medical liability insurers and other organizations, helping design retreats and wellness programs that give doctors a venue to air their litigation concerns and help them develop coping skills."

Current State of Tarasoff Decision

2009-11-26T18:38:00.003-05:00

Here is a database of state rules on the duty to warn.

This decision mandated the reporting of a person-specific threat by a mental patient to the target. It was more lawyer intimidation and take over of clinical care. I doubt a single life has been saved by this decision. The alternative is to rely on clinical judgment. There are 2000 people murdered by paranoid schizophrenics each year. The doctor should have the discretion to call the target, the police, the family of the patient, or to file commitment papers to maintain safety. All these remedies that could prevent harm have been closed off by the lawyer on the bench. The Tarasoff was irrational, then and now. It did generate multiple lawsuits and the plunder of clinical care, and that was its sole real purpose. From Daniel W. Shuman, JD. This article contains statutory reporting requirements by state.

"The case in brief

The plaintiffs in the lawsuit (Tarasoff v Regents of the University of California, 551 P2d 334 [Cal 1976]), the victim’s parents, alleged that a patient (Poddar) communicated his intention to kill their daughter to his therapist, but that the therapist neither warned her nor took other appropriate actions and sought damages for the resulting harm. The de-fendants moved to dismiss.

There are no new facts to add to the recitations found in hundreds of books and articles on Tarasoff, and nobody wants to hear them again. The trial transcript might have provided some new perspective, but there was no trial or evidentiary hearing. According to the Supreme Court of California, there had been a “Complaint” containing the claimants’ version of events. But instead of an “Answer,” which might have admitted or denied the factual allegations of the complaint, the defendants filed a “Motion to Dismiss,” which, according to convention, accepted the plaintiffs’ factual allegations for purposes of the motion only.

The court granted the motion to dismiss, and the plaintiffs took this appeal. No trial. No evidentiary hearings. And no evidence. The report of Poddar’s appeal of his second-degree murder conviction centers on his mental state and consequential culpability (People v Poddar, 103 Cal Rptr 84 [Cal Ct App 1972]). Although there are inherent limits in every case on accurately reconstructing the past, this case was resolved before an attempt to do so. The facts, therefore, that have been passed on from one article to the next may be right or may be urban legend. We do not know.

The legal ramifications

Why does it matter what the sources of the reported facts were anyway? Why should we care whether some came from a journalist, some from a paralegal who worked for the defendants, and some from the authors of the Tarasoff articles’ independent investigation?

First, we have an imperfect but known reliability filter called the “Rules of Evidence” to screen proof of facts in trial. We cannot endorse extra-judicial fact-finding without knowledge of the process and its reliability. Second, cognizant of the limitations of this fact-finding process, the judicial system is explicit about the standard of persuasion, which expresses the level of confidence required on an issue—probable cause, preponderance of the evidence, clear and convincing or beyond a reasonable doubt. Third, the legitimacy of the fact finder in our judicial system—jury or judge—is grounded in constitutional law and public scrutiny.

By what process were these “facts” determined? To what degree of certainty? By what authority? What are the implications for the scholarship perched on this precarious foundation? Before going any further, this is a conversation in which those authors who discovered or applied those facts should be included.

The opinion of the California high court recites the procedural history of the case.10 A civil claim for damages was brought in a California court in Alameda County, against a California university health center psychologist, among others. It alleged that in 1969, a student-patient of the psychologist murdered another student. In response, the defendants filed a motion to dismiss."

Illinois SC: No Duty to Wife of Patient

2009-11-02T06:28:00.003-05:00

Paranoid schizophrenics kill about 2000 people a year. Current lawyer mandated commitment laws require an injury, rather than the need for treatment. The doctors thus cannot commit people, and has some duty to warn. This decision states there was no duty to the wife the patient killed, despite her involvement in his care. Other state courts would have held the doctors liable. Contrast this result to the cases in Massachusetts, where drivers with hypoglycemia and a brain tumor injured other drivers, and the doctors were found to have a duty to the third parties.

"Richard Street sought psychiatric treatment at Community Resource Center Inc. in 2003 after he reported thoughts that his wife was trying to poison him, court records said. Street told the doctors and hospital social workers caring for him that he planned to kill his wife, Teresa Street, and that he wanted to be admitted to a psychiatric facility. He changed his mind during the admitting process and returned home, while continuing his medication treatment.

Three days later, Richard Street was found lying over the body of his strangled wife. He ultimately pleaded guilty to murder and was sentenced to 18 years in prison, records show."

AMA: "We Do Not Support the Public Option," "We Oppose Any New Government Plan."

2009-10-13T23:18:00.005-04:00

1) Dr. William Dolan, an AMA official, addressed a meeting of the Southeastern Pennsylvania County Medical Societies tonight. He reported that the White House had misrepresented the support of the AMA. He did not feel Obama Care existed, but only a set of bills that would have to be hashed out, and reconciled. The AMA's top priority and number one item on its wish list is to end the uninsured. Its second priority is tort reform. President Obama conceded the necessity of tort reform by funding further study by the Department of HHS.

2) As a patient I felt physically threatened by the AMA President's public endorsement of Obama Care if it included the Public Option. That is a Trojan Horse for single payer system, that would end all expensive care for babies and and the elderly. Dr. Dolan pointed out that the end of life counseling payment in HR 3200 meant to leave decision making to doctor and patient, and that bureaucrats would not intrude.

3) Since Dr. Dolan had experience working as a doctor in Canada, I took the opportunity to verify some urban legends. Yes. There are provincial caps on health costs. Once reached, doctors get paid 10 cents on the dollar. The cap was reached, and 6000 patients did not get their surgery that year.

Yes. There are personal caps on individual doctor incomes. Say, the doctor is a fast, hard worker and reaches his salary cap in September. What happens the rest of the year? He works for 10 cents on the dollar. Most doctors go on vacation or get really hard to reach the rest of the fiscal year. Only a neurologist may order a brain MRI, which takes place six months after it is ordered. Waiting time to see the neurologist in the first place? Six months. Senator Specter demanded an MRI at the Naval Hospital, finding his own brain tumor, and having it treated. In Canada, he would have died first. In the case of hypocrites like Specter, that system is not all bad.

Dr. Dolan confirmed that people over 55 are cut off from renal dialysis in the Mother Country, England. They have to come up with their own money to pay for more dialysis and to live another week, past their birthday. If President Obama is allowed to prevail on health reform, look for the same in the US. Dr. Dolan believed a second Revolution would happen before that denial of access to care would come here, to the USA.

Have Plaintiff Experts Produce Their Records of Patients Like the Plaintiff for Review

2009-09-13T23:36:00.003-04:00

This proposal was a resolution to be presented at the Pennsylvania Medical Society Business Meeting in October, at Hershey, PA. It was endorsed by the Board of Trustees of the Montgomery County Medical Society.

It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.

Pennsylvania Rule of Evidence 702 states, "If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." (1). The sociology of expertise now agrees, genuine expertise comes less from credentials, more from a track record and experience (2).

So, in accordance with Pennsylvania Rule of Evidence 702 (1), the treatment records of the plaintiff expert treating patients similar to the plaintiff for similar problems should be obtained in discovery. This discovery motion has justification in that expertise comes from experience and a track record, and less from credentials (2).

All identifiers of these plaintiff expert patients should be blacked out. Payment for the expense of such discovery should the same as charged to the plaintiff. These plaintiff expert treatment records should be reviewed for compliance with the standard of care the plaintiff expert claimed were not met by the defendant.

If the plaintiff expert does not have sufficient records to produce or refuses to produce such records, a motion to disqualify the expert should be filed with the court. He does not have enough experience to be an expert on the narrow subject of the claim. If there are not enough records because the condition is so rare, the rarity serves as a good defense. If the plaintiff expert's own practice records show any deviation from the proposed standard of care, consider filing pretrial motion to impeach the expert for a prior inconsistent statement. If the plaintiff expert is disqualified or impeached, the expert opinion is false testimony. The case should be dismissed in accordance with the Iqbal doctrine, and its limits (3), and all legal costs should be assessed to the personal assets of the plaintiff expert.

A demand for the treatment records of the defense expert should be opposed on the following grounds, 1) the burden of proof is on the plaintiff, and the defense is not even required to produce any testimony; 2) the defense expert may not be making claims as to what a standard of care is, but may be offering alternative causation or unforeseen intervening causes of the injury; 3) even if the defense experts records all comply with the plaintiff experts proposed standard of care, they may reflect defensive medicine or academic teaching duties (extra thorough examinations to teach student doctors), and not acceptance of a standard of care proposed by the plaintiff expert.

References
1. http://www.pacode. com/secure/ data/225/ chapter7/ s702.html
2. Collins, H., Evans, R. Rethinking Expertise, U of Chicago, Chicago.
P. 67.
3. Find at: http://www.law.cornell.edu/supct/html/07-1015.ZS.html; limits discussed at: http://blogs.wsj.com/law/2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/

If Opposing Experts Testify in Good Faith, the Case Should End for Lack of Jurisdiction and Justiciability

2009-09-07T08:10:00.009-04:00

The problem. Over 80% of medical malpractice claims are weak and fail at that rate at every stage of the claim. It is this majority of weak cases that need to get deterred. If they are, the defense bar loses jobs, and the insurance companies lose profits. They will therefore refuse to aggressively get these dismissed early. Some method is needed to deter the weak testimony of paid off plaintiff experts. There should be no quarter given to them.

This scenario is a situation where the interest of the defendant and those of the plaintiff attorney are in accord. Both will benefit from not holding trial and avoiding its time and expense. It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.

There are 5 elements that must be proven in a medical malpractice suit, 1) an injury; 2) it was caused by the treatment; 3) nothing broke the chain of causation of the injury, such as patient non-compliance, bad luck events, other people's behaviors, etc.; 4) there is a standard of care; and 5) the treatment that caused the injury deviated from it. Experts are needed to establish the standard of care, and to establish the causation. It is reassuring that when a phenomenon exists and can be measured, the agreement of experts is excellent. Expert testimony has good inter-rater reliability. The court should feel reassured that any disagreement does not come from any inherent nebulousness of the subject matter.

The jury is supposed to find the facts. It is the "trier of facts." It is their job to find that the doctor did something or did not do something, when he did it. Facts.

It should be defense lawyer standard of due care to get the earliest dismissal of a complaint. Good faith (sincere) testimony of opposing experts means a scientific controversy exists, and the rhetoric in a court cannot resolve a scientific controversy (1). Only additional, scientifically valid data may resolve a scientific controversy.

A court should dismiss the case lacking justiciability (the limits upon legal issues over which a court can exercise its judicial authority) as early as possible to avoid wasting its time. Opposite expert testimonies violate both the Frye doctrine (2) used in Pennsylvania courts and the Daubert doctrine (3) used in federal court.

Claims of a deviation from doctor standards of due care within the knowledge of the jury, or having support from only a plaintiff expert, are within the ability of the court to judge, and where only the facts of treatment are in dispute, should proceed.

If an expert is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.

The defendant should discuss with the insurance company defense lawyer making the following preliminary motion, as early as possible after the completion of discovery, to dismiss the claim because opposing experts are testifying in good faith, and the court lacks technical ability or constitutional authority to resolve a scientific controversy.

The court should dismiss the lawsuit if 1) the experts disagree over the standard of due care; 2) agree about the standard, but whether the doctor’s treatment met it; 3) agree about the standard, that the doctor failed to meet it, but disagree over whether the deviation from standards caused the injury or merely preceded it. The jury may judge a claim where opposing experts agree about the standard of care, that if the doctor’s treatment deviated from it, it would have caused the injury, but disagree about the material facts of the treatment (if it happened, when it happened). The jury has the ability to determine what happened, then using the agreement of experts over material opinions about the standard, the hypothetical causation, but disagreement about the facts of treatment.

The court may also accept a claim the standard of care and of causation is within the knowledge of the jury, such as wrong site surgery, or that has no defense expert.

If one of the opposing experts is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.

Footnotes:
1. Sancho v. U.S. Department of Energy. F.Supp.2d, 2008 WL 4370009 (D. Hawaii) (Lack of subject matter jurisdiction in a claim that turning on a particle accelerator could create a black hole swallowing the earth). Lack of subject matter jurisdiction may be raised at any point of case. May be raised by the court itself. The Court has ability to answer legal questions not scientific ones. Its decisions are at the point of a gun, and may distort clinical practice if an unscientific opinion prevails. The jury has no ability to judge the science, especially after all with any knowledge have been excluded in voir dire. The jury will favor the more personally likable expert, or apply one of may cognitive biases. These results of lack of subject matter jurisdiction violate the procedural due process right of the civil defendant to a fair hearing.

2. Frye Decision: “...the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Opposite testimony on the standard of care implies lack of “general acceptance.” The experts are there to help the jury apply the standard of care to the facts. If they disagree, they are not helping but confusing the jury.

3. Daubert Decision: “Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.”

Legal Hoaxing and Its Remedy

2009-09-03T21:21:00.005-04:00

Problem.

Legal hoaxing is a term that had to be invented to describe the conduct of the PA DOT. It refers to repeated lying by government to the public about the wording of a law.

1) If a patient is not reported within 10 days of a list of diagnoses, the doctor becomes the legal proximate cause of any accident of his patient. This threat repeatedly made in a widely distributed pamphlet cannot be found in the statute. What can be found are footnotes about cases where doctors were sued for injuries caused by their patients, and were found not liable (see Notes of Decisions; Doctor Liability).

2) The doctor has notice of the law, and the law is not in violation of due process (void for vagueness) because the doctor reports the patient after clinical assessment of ability to drive. Clinical assessment is notice, and rebuts the void for vagueness problem. The law states reporting is mandatory after the diagnosis of a listed condition.

3) The state continually threatens prison sentences. It has never prosecuted a doctor. It preserves all laws with a law prohibiting desuetude. If this law itself has never been enforced, does the law against desuetude apply to itself?

Remedy.

A Rule 11 sanction against individual lawyers, albeit agents of the state, does not seem enough.

The best remedy is a per se summary judgment. If a state has to lie about its law, it constructively admits to its invalidity, ineffectiveness, and inability to pass constitutional muster. To deter legal hoaxing.

Prevalence of the Reportable Conditions

2009-08-30T02:23:00.005-04:00

Below is the list of conditions, their approximate prevalences during the relevant time period, and the reference where obtained. The small field of mental disorder seems to have a total equal to all combined medical/surgical conditions. ( Mental: 15%; Medical: 13.5%). Given the small threat, it is legally advisable to report all patients to get immunity.

To summarize here.

1. Vision Requirements. All states have a similar requirement.

2. ) Syncopal attack or loss of consciousness. Lifetime: 19% over age 45, or 0.5% every six months.

3. Rheumatic, arthritic, orthopedic, muscular, vascular or neuromuscular disease. Taking the middle prevalences, and adding them up, about 10%. Go to page 138 in the PDF box at the top.

4. Cerebral vascular insufficiency or cardiovascular disease which, within the preceding 6 months, has resulted in lack of coordination, confusion, loss of awareness, dyspnea upon mild exertion or any other sign or symptom which impairs the ability to control and safely perform motor functions necessary to operate a motor vehicle.

Say 1% (30% lifetime divided by 30 years from ages 45 to ages 75)

5. Epilepsy. (a) General. A person who has a seizure disorder will not be qualified to drive unless a licensed physician reports that the person has been free from seizure for at least 6 months immediately preceding, with or without medication. A person will not be disqualified if the person has experienced only auras during that period.

6. Mental Disorder. Preoccupation, hallucination or delusion. Psychosis: 2%

Suicidality. 30,000 suicide a year (1 in 7000 adults, multiply by 10 for the attempt rate, 1 in 700)

(iii) Aggressiveness or disregard for the safety of self or others or both, presenting a clear and present danger, regardless of cause.

Antisocial Personality Disorder: 2% of males. Females get the diagnosis, borderline personality disorder at about 2% too. They are nearly identical.

(6) Periodic episodes of loss of attention or awareness which are of unknown etiology or not otherwise categorized, unless the person has been free from episode for the year immediately preceding, as reported by a licensed physician.

Adult ADHD: 4.4%

(7) Use of any drug or substance, including alcohol, known to impair skill or functions, regardless whether the drug or substance is medically prescribed.

Use of marijuana 4%. Marijuana addiction 1.5%

(8) Other conditions which, in the opinion of a provider, is likely to impair the ability to control and safely operate a motor vehicle.

Alcoholim (dependence): 5%

Alcohol abuse: 7%

Conditions to be Reported to the Pennsylvania Department of Transportation

2009-08-26T01:47:00.002-04:00

Review of Supreme Court Cases on Suing a State

2009-08-24T09:54:00.004-04:00

From Chemerinski, Fed Jurisdiction, 5th Ed. pp.431-478

Ways around Eleventh Amendment suits Against State Officers

1. No bar to suits against state officers to enjoin violation of fed law. No authority to violate fed law from the states, so illegal acts are stripped of state authority. State official violating fed law or con is stripped of state official or representative character. (Ex parte Young, 1908)

2. State officials may be sued for money from their own pockets, suit against officer "in individual capacity." State may indemnify officer without changing that analysis because it does so voluntarily.

3. Fed court may grant prospective relief even if costly in the future (welfare recipients from other state get benefits upon arrival in the new state.) Payment for past injury by state prohibited.

4. Ancillary relief in form of attorney fees OK under Section 1988. Ancillary to prospective relief in the injunction.

5. Hafer v Melo. Officer acting in scope of duty is not enough to bar a suit. His was in official capacity when sued, but in individual capacity when inflicted the injury. Pennhurst: suit OK if suit involves liberty or property interest protected by due process of Fourteenth Amendment.

6. Seminole Tribe. No suit against state if law has its own enforcement mechanism. Rejected federal law allowing violation of Eleventh Amendment. Fed law called for negotiation and submission of dispute to mediator. DOT reg has no such mechanism.

7. Idaho v Coeur D'Alene Tribe. May sue in fed court 1) if no state forum to vindicate federal interest; 2) need fed court to enforce or interpret federal law. In the complaint, PA is not enforcing the fed reg requiring confidentiality of substance abuse. Verizon of MD v PSC of MD. no bar to suit against officers when they violate fed law.

8. Constructive waivers will almost never work.

9. Eleventh limits judiciary, not Congress. Congress may override immunity in statutes adopted under Section 5 of the Fourteenth Amendment, "Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Hutto v Finney. Attorneys fees under Section 1988.

10. Statutes validly enacted under Section 5 of Fourteenth Amendment. City of Boerne v Flores. If government is to burden the free exercise of religion (peyote), government must show compelling government purpose and that it used the least restrictive method to do so. Congress is limited to prevent or remedy rights recognized by the Supreme Court stemming from the Fourteenth Amendment. This was done to preserve the role of the Supreme Court as the interpreter of the Constitution. A state may be sued for violation of a federal law only after meeting the stringent test in Flores. They struck down lawsuits based on federal law in 6 decisions reached 5-4. Rejected suits against states as not fitting into a Section 5 violation: 1) patent infringement suit against a state (state may infringe with impunity); 2) librarians suing for age discrimination (Kimel) barred because only rational basis used for age discrimination - all person will age. Age discrimination by states not widespread anyway; old state workers should sue in state court; 3) same logic used to bar fed discrimination claim based on disability (nurse supervisor lost job after time off for breast cancer), federal government could still sue the state, but no damages could be collected.

Permissible federal suits against states because within the scope of Section 5 of Fourteenth Amendment:

1) Hibbs. May sue state employer for violation of Family Leave Act. Gender triggers intermediate scrutiny, age in Kimel only rational basis.

2) Lane. A paralyzed criminal defendant crawled up the steps of the courthouse due to lack of access required by Title II of the ADA, that prohibits governments from discriminating against the disabled. Access to court is a fundamental right.

3) US v Georgia. Paralyzed inmate could not reach toilet in cell. Degrading conditions cruel and unusual punishment.

One may sue a state for discrimination that receives heightened scrutiny, that involves a fundamental right, or if state discrimination is pervasive.

Criticism: Sovereign immunity is not authorized by the Constitution. The above cases striking down suits against suits are conservative judicial activism.

I would add, sovereign immunity was justified by Henry of Bratton by the sovereign's speaking with the voice of God. This is a psychotic delusional justification. It violates the Establishment Clause. At the policy level, if torts are designed to improve a service and to prevent violence, there is no reason state government should be deprived of the benefits of torts.

Motion to Dismiss Filed by Pennsylvania

2009-08-21T00:38:00.006-04:00

Here.

Here is a summary from the reply.

1. Venue in the Eastern District of Pennsylvania is improper because Commonwealth
defendants reside in the Middle District of Pennsylvania; moreover, because plaintiff is challenging a PennDOT regulation, all of the events and omissions allegedly giving rise toplaintiff’s lawsuit arose in the Middle District.
a) For venue purposes, the residence of a state agency or state official is the state
capital, even when branch offices of the state agency are maintained in other parts of the state. b) Harrisburg is the logical and administratively convenient location to have the action heard.

2. To the extent plaintiff sues PennDOT under 42 U.S.C. §§ 1983 and 1988, the Eleventh Amendment bars his claims; similarly, PennDOT is not a “person” within the meaning of Section 1983.

3. Federal regulations do not preempt 67 Pa. Code §§ 83.1 et seq. (“PennDOT
regulation”).

4. The PennDOT regulation is not void for vagueness.

5. Plaintiff lacks standing to challenge the legality of the PennDOT regulation.

Letter to Senator Arlen Specter (D-PA)

2009-08-08T14:24:00.000-04:00

Senator Specter: I request a list of all the medical procedures you have undergone, and their associated costs. You had headaches, dismissed by your doctors. You correctly demanded a brain scan, where a brain tumor was caught early. You had heart problems and a bypass helped you. You had Hogkin's Lymphoma. You have had two courses of chemotherapy, the last in July, 2009, at your age.

I commend you for your courage, and sympathize with your suffering.

Under Obama's Commie Care, others would be denied the care you received. At your age, you would be getting a visit from a hospice counselor and not a second course of chemotherapy. The brain scan would have been denied because no one would be getting a brain scan, or the wait would be for months. Under Obama's Commie Care you would have been long dead.

I intend to publish your procedures and their associated costs. I appreciate your help in advance.

The Complaint

2009-06-19T23:21:00.004-04:00

Doctors should be able to blog their legal actions without being intimidated by lawyers or by the legal system. Their lawyers should be aware of it, and should support this openness. Opposing lawyers' gotchas should be reported to the judge and to ethics authorities as bad faith efforts to intimidate, and to violate the legal right to a fair hearing of the doctor.

Here.

http://www.lawprisms.com/pub/cases/PennDOT_Complaint.pdf

The complaint claims, the PennDOT regulation violates:

a. the Drug Abuse Prevention, Treatment, and Rehabilitation Act,
as amended ,42 C.F.R. §§ 2.1 et seq. and its issuing statute, 42
U.S.C. § 290dd-2;

b. the Supremacy Clause of the Constitution of the United States;

c. the Due Process Clause of the Fifth and Fourteenth
Amendments of the Constitution of the United States;

d. the Freedom of Association Clause of the First Amendment of
the Constitution of the United States;

e. Article 1, § 1 of the Constitution of the Commonwealth of
Pennsylvania, which grants “certain inherent and indefeasible
rights, among which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness”;

f. the Americans with Disabilities Act, 42 C.F.R. §§ 12101 et seq.,
as amended by the Americans with Disabilities Act Amendments
Act of 2008, Pub.L. 110-325;

g. Section 504 of the Rehabilitation Act of 1973; and

h. 42 U.S.C. § 1983.