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.
Showing posts with label DOT. Show all posts
Showing posts with label DOT. Show all posts
Sunday, March 28, 2010
Sunday, March 21, 2010
Reply to a Motion to Dismiss on the Pleading
If the case gets past this point, discovery will follow.
Thursday, September 3, 2009
Legal Hoaxing and Its Remedy
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.
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.
Sunday, August 30, 2009
Prevalence of the Reportable Conditions
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.
2%
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.
(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.
Alcohol abuse: 7%
Wednesday, August 26, 2009
Conditions to be Reported to the Pennsylvania Department of Transportation
§ 83.3. Visual standards.
(1) The combined vision has been corrected to 20/60 or better.
(c) Visual acuity of less than 20/70.
(ii) The person takes and successfully passes a driver’s examination upon application.
(g) Telescopic lenses. Correction through the use of telescopic lenses is not acceptable for purposes of meeting acuity requirements.§ 83.4. Epilepsy.
(c) Reporting requirements for provider. Every provider who treats a person who has experienced a single seizure shall provide, consistent with 75 Pa.C.S. § 1518(b) (relating to reports on mental or physical disabilities or disorders), a report to the Department which shall constitute cause for the Department to direct the person to undergo an examination prescribed under 75 Pa.C.S. § 1519 (relating to determination of incompetency).§ 83.5. Other physical and medical standards.
(i) Syncopal attack or loss of consciousness.
(ii) Vertigo, paralysis or loss of qualifying visual fields.
(1) Loss of a joint or extremity as a functional defect or limitation.
(2) Impairment of the use of a joint or extremity as a functional defect or limitation.
(3) Rheumatic, arthritic, orthopedic, muscular, vascular or neuromuscular disease.
(c) Driving examination. A person who has any of the conditions enumerated in subsection (b)(1), (2), (3) or (8) may be required to undergo a driving examination to determine driving competency, if the Department has reason to believe that the person’s ability to safely operate a motor vehicle is impaired. The person may be restricted to driving only when utilizing appropriate adaptive equipment.§ 83.6. Providers to report unqualified persons.
Physicians and other persons authorized to diagnose and treat disorders and disabilities defined by the Medical Advisory Board shall report to the Department, in writing, the full name, date of birth and address of every person 16 years of age and older diagnosed as having any specified disorder or disability within 10 days, under 75 Pa.C.S. § 1518 (relating to reports on mental or physical disabilities or disorders).Monday, August 24, 2009
Review of Supreme Court Cases on Suing a State
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.
Ways around Eleventh Amendment suits Against State Officers
1. No bar to suits against state officers to enjoin violation of fed law. No authority to violate fed law from the states, so illegal acts are stripped of state authority. State official violating fed law or con is stripped of state official or representative character. (Ex parte Young, 1908)
2. State officials may be sued for money from their own pockets, suit against officer "in individual capacity." State may indemnify officer without changing that analysis because it does so voluntarily.
3. Fed court may grant prospective relief even if costly in the future (welfare recipients from other state get benefits upon arrival in the new state.) Payment for past injury by state prohibited.
4. Ancillary relief in form of attorney fees OK under Section 1988. Ancillary to prospective relief in the injunction.
5. Hafer v Melo. Officer acting in scope of duty is not enough to bar a suit. His was in official capacity when sued, but in individual capacity when inflicted the injury. Pennhurst: suit OK if suit involves liberty or property interest protected by due process of Fourteenth Amendment.
6. Seminole Tribe. No suit against state if law has its own enforcement mechanism. Rejected federal law allowing violation of Eleventh Amendment. Fed law called for negotiation and submission of dispute to mediator. DOT reg has no such mechanism.
7. Idaho v Coeur D'Alene Tribe. May sue in fed court 1) if no state forum to vindicate federal interest; 2) need fed court to enforce or interpret federal law. In the complaint, PA is not enforcing the fed reg requiring confidentiality of substance abuse. Verizon of MD v PSC of MD. no bar to suit against officers when they violate fed law.
8. Constructive waivers will almost never work.
9. Eleventh limits judiciary, not Congress. Congress may override immunity in statutes adopted under Section 5 of the Fourteenth Amendment, "Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Hutto v Finney. Attorneys fees under Section 1988.
10. Statutes validly enacted under Section 5 of Fourteenth Amendment. City of Boerne v Flores. If government is to burden the free exercise of religion (peyote), government must show compelling government purpose and that it used the least restrictive method to do so. Congress is limited to prevent or remedy rights recognized by the Supreme Court stemming from the Fourteenth Amendment. This was done to preserve the role of the Supreme Court as the interpreter of the Constitution. A state may be sued for violation of a federal law only after meeting the stringent test in Flores. They struck down lawsuits based on federal law in 6 decisions reached 5-4. Rejected suits against states as not fitting into a Section 5 violation: 1) patent infringement suit against a state (state may infringe with impunity); 2) librarians suing for age discrimination (Kimel) barred because only rational basis used for age discrimination - all person will age. Age discrimination by states not widespread anyway; old state workers should sue in state court; 3) same logic used to bar fed discrimination claim based on disability (nurse supervisor lost job after time off for breast cancer), federal government could still sue the state, but no damages could be collected.
Permissible federal suits against states because within the scope of Section 5 of Fourteenth Amendment:
1) Hibbs. May sue state employer for violation of Family Leave Act. Gender triggers intermediate scrutiny, age in Kimel only rational basis.
2) Lane. A paralyzed criminal defendant crawled up the steps of the courthouse due to lack of access required by Title II of the ADA, that prohibits governments from discriminating against the disabled. Access to court is a fundamental right.
3) US v Georgia. Paralyzed inmate could not reach toilet in cell. Degrading conditions cruel and unusual punishment.
One may sue a state for discrimination that receives heightened scrutiny, that involves a fundamental right, or if state discrimination is pervasive.
Criticism: Sovereign immunity is not authorized by the Constitution. The above cases striking down suits against suits are conservative judicial activism.
I would add, sovereign immunity was justified by Henry of Bratton by the sovereign's speaking with the voice of God. This is a psychotic delusional justification. It violates the Establishment Clause. At the policy level, if torts are designed to improve a service and to prevent violence, there is no reason state government should be deprived of the benefits of torts.
Friday, August 21, 2009
Motion to Dismiss Filed by Pennsylvania
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.
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.
Friday, June 19, 2009
The Complaint
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.
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.
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