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.
Thursday, April 29, 2010
Tuesday, April 27, 2010
False Claim Act Attacks on Off Label Promotion
Click on title above for review of civil procedure defense, using Rule 9 (b).
Off label use represents about half of all prescriptions. Off label is the use of a medication for condition not approved by the FDA, after test data have been submitted by the drug companies. It is half of medicine, and can be as scientifically rigorous and prove as on label use.
Off label use represents a gold mine of medical advances at little or no cost. So the blood thinning effect of aspirin is a nuisance to the headache patient in whom it caused a bleeding ulcer. It is a great benefit to the heart patient who needs a mild blood thinner. Is aspirin a pain killer or a blood thinner? One patient's side effect is another's best treatment option.
Therefore, at the policy level, the lawsuits for any off label promotion should be dismissed as damaging to clinical care, by chilling the advocacy for innovative uses of cheap, older, often generic medication.
Beyond the appalling effects on clinical innovation, off label promotion is speech. The Free Speech Clause is a coin with two sides, the freedom to say speech, and the freedom to hear speech. Corporations may not have unlimited rights to free speech. However, doctors and patients have an unlimited right to hear free speech.
Off label use represents about half of all prescriptions. Off label is the use of a medication for condition not approved by the FDA, after test data have been submitted by the drug companies. It is half of medicine, and can be as scientifically rigorous and prove as on label use.
Off label use represents a gold mine of medical advances at little or no cost. So the blood thinning effect of aspirin is a nuisance to the headache patient in whom it caused a bleeding ulcer. It is a great benefit to the heart patient who needs a mild blood thinner. Is aspirin a pain killer or a blood thinner? One patient's side effect is another's best treatment option.
Therefore, at the policy level, the lawsuits for any off label promotion should be dismissed as damaging to clinical care, by chilling the advocacy for innovative uses of cheap, older, often generic medication.
Beyond the appalling effects on clinical innovation, off label promotion is speech. The Free Speech Clause is a coin with two sides, the freedom to say speech, and the freedom to hear speech. Corporations may not have unlimited rights to free speech. However, doctors and patients have an unlimited right to hear free speech.
Sunday, April 25, 2010
Ironic. Dr. Daniel Carlat would like a return to the psychiatry that failed to prevent his mother's suicide.
Fewer than 5% of people who die by suicide have psychiatric medication in their system. There is an under use of these medications, and undertreatment of serious conditions. Among those prescribed medication, there is a high rate of non-adherence. One would like to know more of what happened to Dr. Carlat's mother. The idea that paranoia is treatable with talk therapy is not viable. One may also consider suicidality as a form of delusion, a belief that death will solve one's problems and that one will never enjoy life again. For those reasons, one hopes that she was prescribed a neuroleptic tranquilizer, and that she continued to take it. This useful technical information is not provided.
“So Dr. Freud, the causes are all in the brain? Isn’t there some explanation in my childhood?” It was a good-natured tease.
“I specialize in prescribing medications,” I said with a smile. I was a psychopharmacologist and specialized in medication rather than psychotherapy. “I can refer you to a good therapist in the area if you’d like.”
After J.J. left my office, I realized, uncomfortably, that somehow, over the course of the decade following my residency, my way of thinking about patients had veered away from psychological curiosity. Instead, I had come to focus on symptoms, as if they were objective medical findings, much the way internists view blood-pressure readings or potassium levels. Psychiatry, for me and many of my colleagues, had become a process of corralling patients’ symptoms into labels and finding a drug to match.
Leon Eisenberg, an early pioneer in psychopharmacology at Harvard, once made the notable historical observation that “in the first half of the 20th century, American psychiatry was virtually ‘brainless.’ . . . In the second half of the 20th century, psychiatry became virtually ‘mindless.’ ” The brainless period was a reference to psychiatry’s early infatuation with psychoanalysis; the mindless period, to our current love affair with pills. J.J., I saw, had inadvertently highlighted a glaring deficiency in much of modern psychiatry. Ultimately, his question would change the way I thought about my field, and how I practiced.
I originally became interested in psychiatry primarily because of my father: he is a psychiatrist practicing in San Francisco. But there was a darker side to my career choice. My mother suffered severe mental illness, with debilitating depressions and paranoid thoughts. One autumn day during my junior year in college, she committed suicide. Psychiatry then became personal, a way for me to come to terms with her illness.
“So Dr. Freud, the causes are all in the brain? Isn’t there some explanation in my childhood?” It was a good-natured tease.
“I specialize in prescribing medications,” I said with a smile. I was a psychopharmacologist and specialized in medication rather than psychotherapy. “I can refer you to a good therapist in the area if you’d like.”
After J.J. left my office, I realized, uncomfortably, that somehow, over the course of the decade following my residency, my way of thinking about patients had veered away from psychological curiosity. Instead, I had come to focus on symptoms, as if they were objective medical findings, much the way internists view blood-pressure readings or potassium levels. Psychiatry, for me and many of my colleagues, had become a process of corralling patients’ symptoms into labels and finding a drug to match.
Leon Eisenberg, an early pioneer in psychopharmacology at Harvard, once made the notable historical observation that “in the first half of the 20th century, American psychiatry was virtually ‘brainless.’ . . . In the second half of the 20th century, psychiatry became virtually ‘mindless.’ ” The brainless period was a reference to psychiatry’s early infatuation with psychoanalysis; the mindless period, to our current love affair with pills. J.J., I saw, had inadvertently highlighted a glaring deficiency in much of modern psychiatry. Ultimately, his question would change the way I thought about my field, and how I practiced.
I originally became interested in psychiatry primarily because of my father: he is a psychiatrist practicing in San Francisco. But there was a darker side to my career choice. My mother suffered severe mental illness, with debilitating depressions and paranoid thoughts. One autumn day during my junior year in college, she committed suicide. Psychiatry then became personal, a way for me to come to terms with her illness.
Friday, April 9, 2010
The East Brunswick, NJ, Municipal Court and Traffic Offenses
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.
1) The traffic court is a fast moving revenue raiser.
2) The rails to settlement are fully greased.
3) Pressure increases progressively as one asserts a desire for a not guilty plea and a trial. It reaches an unbearable level of cost, quickly, for any productive party. That pressure includes physical threats by township police, albeit staying within the law. The threatening behavior worsens as one tries to assert more legal rights.
4) Defense attorneys at this level of traffic court are a waste of time and money. It suggested that one buy a court practice manual, cheaply. One will learn a great deal about the way things work and one's real choices. One may resell it after the case. The prosecutor has little or no knowledge of any case, and will accept any reasonable offer. If one cannot think of any offer, the prosecutor wants to help. The final pled infraction may have nothing to do with the accusation. But never claim innocence. It makes everyone angry.
Tuesday, April 6, 2010
Nice. Trial Lawyer Association Sues Other Trial Lawyer Association
"A Minnesota federal judge recently ruled that the American Association for Justice's trademark infringement lawsuit against an organization and individual using the name American Trial Lawyers Association and the acronym ATLA will go to trial.
On March 18, Judge Joan Ericksen of the District of Minnesota denied two summary judgment motions from defendants American Trial Lawyers Association Inc. and J. Keith Givens. Ericksen also granted a motion by the AAJ in ruling that it had not abandoned its trademark for its former name.
The American Association for Justice (AAJ), a plaintiffs' counsel advocacy group, was known as the Association of Trial Lawyers of America until July 2006, when the members voted to change its name. According to court papers, AAJ has changed its name several times since it was founded in 1946, and it registered the trademark "ATLA" with the U.S. Patent and Trademark Office in 1976.
AAJ member Givens reserved the corporate name the American Trial Lawyers Association Inc. with the Alabama secretary of state in March 2007 and filed for incorporation, along with his brother, Chase Givens, the same month. Ericksen's ruling noted that the group's purpose on its articles of incorporate was to provide a magazine and educational news "relevant to civil plaintiff and criminal defense trial lawyers." Givens' association sent letters to prospective members in June and November 2007, and the AAJ filed its lawsuit in November 2007.
The AAJ is opposing the American Trial Lawyers Association's PTO application for a trademark that includes its name and a drawing of Lady Justice. The PTO has suspended Givens' group's second trademark application, which features its name and the acronym ATLA, partly because of the pending lawsuit."
On March 18, Judge Joan Ericksen of the District of Minnesota denied two summary judgment motions from defendants American Trial Lawyers Association Inc. and J. Keith Givens. Ericksen also granted a motion by the AAJ in ruling that it had not abandoned its trademark for its former name.
The American Association for Justice (AAJ), a plaintiffs' counsel advocacy group, was known as the Association of Trial Lawyers of America until July 2006, when the members voted to change its name. According to court papers, AAJ has changed its name several times since it was founded in 1946, and it registered the trademark "ATLA" with the U.S. Patent and Trademark Office in 1976.
AAJ member Givens reserved the corporate name the American Trial Lawyers Association Inc. with the Alabama secretary of state in March 2007 and filed for incorporation, along with his brother, Chase Givens, the same month. Ericksen's ruling noted that the group's purpose on its articles of incorporate was to provide a magazine and educational news "relevant to civil plaintiff and criminal defense trial lawyers." Givens' association sent letters to prospective members in June and November 2007, and the AAJ filed its lawsuit in November 2007.
The AAJ is opposing the American Trial Lawyers Association's PTO application for a trademark that includes its name and a drawing of Lady Justice. The PTO has suspended Givens' group's second trademark application, which features its name and the acronym ATLA, partly because of the pending lawsuit."
Sunday, April 4, 2010
Planned Preliminary Motions for Careless Driving Charge in New Jersey
Traffic law is something the average person encounters every day. Naturally, it is not covered in law school. Does any one know of any law school offering any course in the rules of the road. I would appreciate hearing about it.
I am disputing this ticket. It has a potential 15 day jail sentence, a serious potential consequence justifying adequate discovery. It is a criminal charge, with a beyond a reasonable doubt burden on the prosecution.
Here is the law: 39:4-97. Careless driving
39:4-97. A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.
Amended 1951,c.23,s. 54; 1955,c.220,s. 2; 1995,c.70,s. 3.
It has been declared constitutional by the New Jersey Supreme Court despite an admission of vagueness. The reasoning for upholding the law is that no law can specify the endlessly wide range of dangerous driving.
I demanded full discovery on the records of the officer, including health, driving, complaints, productivity. Due to the subjective nature of the elements of the law, the credibility, character, training of the officer are material.
Here are the planned preliminary motions to dismiss.
1) Violation of Rule 7:7-7 (b) by the prosecution. This charge fulfills the consequence of magnitude in the form of possible jail time. It mandates the production of documents under the control of the government. I move for a dismissal of the charges since the violation made an adequate defense impossible. The subjective, opinion nature of the elements of the charge make the character, training, and knowledge of the officer highly material. I also request sanctions against the personal assets of the prosecutor, not those of the taxpayer for his refusal to obey the clear language of the Rule of Evidence. This stonewalling of discovery is by agents of the prosecutor. He should be held accountable.
2) The sole witness against me will be a fact witness. Yet the elements of the law call for an opinion. It should be against policy to allow the police to make up the law in accordance with their personal preferences. A fact witness may not express the opinions, calculations, and tastes called for in the law.
3) The subjective nature of the charge, and the absence of any objective, measurable damage, make the burden of beyond a reasonable doubt mathematically impossible to meet, unless the probability of damage was greater than 80%. There is no way to show that in the absence of any damage. There is no scientific evidence to support such an increase in the probability of damage.
4) Criminal evidence is subject to the Daubert standard for reliability of evidence. The speculative and subjective nature of the police charge violate the Daubert standard and require an expert opinion to help the court measure the actuarially proven increase in risk.
5) The prosecutor does not dispute that the officer violated four New Jersey traffic laws in this encounter. He just feels it does not matter. The prosecutor says, there is no rule the lawbreaking of the agent of the prosecutor should impact on the validity of the charges against the defendant. Yet, it should be against public policy for a court to reward law breaking with a favorable verdict. If the court allows such law breaking, and actually rewards it, it will get a lot more of it in the future. The court cannot immunize the violation of the law by the police without barring the fruit of the poisoned tree.
I am disputing this ticket. It has a potential 15 day jail sentence, a serious potential consequence justifying adequate discovery. It is a criminal charge, with a beyond a reasonable doubt burden on the prosecution.
Here is the law: 39:4-97. Careless driving
39:4-97. A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.
Amended 1951,c.23,s. 54; 1955,c.220,s. 2; 1995,c.70,s. 3.
It has been declared constitutional by the New Jersey Supreme Court despite an admission of vagueness. The reasoning for upholding the law is that no law can specify the endlessly wide range of dangerous driving.
I demanded full discovery on the records of the officer, including health, driving, complaints, productivity. Due to the subjective nature of the elements of the law, the credibility, character, training of the officer are material.
Here are the planned preliminary motions to dismiss.
1) Violation of Rule 7:7-7 (b) by the prosecution. This charge fulfills the consequence of magnitude in the form of possible jail time. It mandates the production of documents under the control of the government. I move for a dismissal of the charges since the violation made an adequate defense impossible. The subjective, opinion nature of the elements of the charge make the character, training, and knowledge of the officer highly material. I also request sanctions against the personal assets of the prosecutor, not those of the taxpayer for his refusal to obey the clear language of the Rule of Evidence. This stonewalling of discovery is by agents of the prosecutor. He should be held accountable.
2) The sole witness against me will be a fact witness. Yet the elements of the law call for an opinion. It should be against policy to allow the police to make up the law in accordance with their personal preferences. A fact witness may not express the opinions, calculations, and tastes called for in the law.
3) The subjective nature of the charge, and the absence of any objective, measurable damage, make the burden of beyond a reasonable doubt mathematically impossible to meet, unless the probability of damage was greater than 80%. There is no way to show that in the absence of any damage. There is no scientific evidence to support such an increase in the probability of damage.
4) Criminal evidence is subject to the Daubert standard for reliability of evidence. The speculative and subjective nature of the police charge violate the Daubert standard and require an expert opinion to help the court measure the actuarially proven increase in risk.
5) The prosecutor does not dispute that the officer violated four New Jersey traffic laws in this encounter. He just feels it does not matter. The prosecutor says, there is no rule the lawbreaking of the agent of the prosecutor should impact on the validity of the charges against the defendant. Yet, it should be against public policy for a court to reward law breaking with a favorable verdict. If the court allows such law breaking, and actually rewards it, it will get a lot more of it in the future. The court cannot immunize the violation of the law by the police without barring the fruit of the poisoned tree.
Monday, March 29, 2010
DOJ Responds to Freedom of Information Act Request for Suboxone Inspection Material
Looking forward to receiving it in electronic form, not in the form of a massive amount of paper.
Sunday, March 28, 2010
AMA Awareness of DOT Lawsuit
I have had hostile feelings against the AMA, because it does not represent the interests of the clinician. When it shows support for clinical care, I can forgive and forget. I have used their manual on the management of the impaired driver as an example of care. The association of DOT leaders has also supported discretionary reporting of drivers who have shown themselves to be impaired.
One must recall that Pennsylvania DOT requires the reporting of any patient at the time of a list of diagnoses, not after any evidence of impairment.
One must recall that Pennsylvania DOT requires the reporting of any patient at the time of a list of diagnoses, not after any evidence of impairment.
Disability Council Nominee Not Ready to Lead
22 year old, has Asperger Syndrome. One symptom is endless, mindless lecturing. It will become disruptive. The more these awful bureaucratic bodies are disrupted, the better off the public.
Worst of all is his report calling for laws to prohibit aversive conditioning, restraint, and seclusion in students with disabilities. This shows poor judgment and bias favoring chaos in the class room. This philosophy has become federal law recently, making the jobs of teachers unlivable. Now vicious, mentally disabled predators will assert their rights to attack adults and other children, with full lawyer immunity. Why would anyone pass such a self-defeating, pro-criminality law? The alternative to restraint and negative consequences? Greater staffing. The real losers? Taxpayers. These children who will yield zero return on educational investment, now generate massive government make work. The other winners, lawyers suing teachers for trying to prevent injuries. Students who are violent will be forced on entire classes, and learning can stop for hours until the rage attacks ends, perhaps hours later.
I strongly urge the victims of these vicious predators to sue the Federal government, and state officials, including this nominee. If these pro-criminal advocates want to set guidelines, they should be held accountable for all injuries resulting from their advocacy.
March 27, 2010
Nominee to Disability Council Is Lightning Rod for Dispute on Views of Autism
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.
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
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.
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.
Sunday, March 21, 2010
Reply to a Motion to Dismiss on the Pleading
If the case gets past this point, discovery will follow.
Friday, March 12, 2010
Rare Good News for the Victims of Government Bullying, $6.5 Million Verdict Against Government Inspectors
A rare instance of accountability.
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.
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.
Thursday, March 11, 2010
Doctor Collects from Insurance in Small Claims Court
This is straight collections of debt in small bundled amounts in Small Claims. The doctor represented himself, but did his legal homework, in anticipating and finding the rebuttal for the company's arguments.
I would like to see many doctors go beyond debt for services to patients, to charging for filling out pre-authorization forms, spending time on the telephone for approval, for retrieval of medical records. These are for the benefit of the insurance company. They represent contract in law, generating a debt called quantum meruit.
From the article.
Fla. doctor beats insurer -- in small claims court
In the Courts. By Amy Lynn Sorrel, amednews staff. Posted March 1, 2010.
Physicians are not known for taking health insurer payment abuses lying down, having marched big carriers into state and federal courtrooms in a series of successful class-action lawsuits over the years.
But one Florida physician caught an insurance giant from an angle it was not expecting when he launched an attack in small claims court. The dermatologist's strategy: to win back the roughly $130,000 he contends Humana Inc. owed his practice in unpaid bills since at least 2007, even if it took filing a few small claims at a time.
The strategy worked. The doctor has recouped nearly all of the money."If doctors have a legitimate right to be paid based on services they provided, insurance companies should pay. And if they think they can get away with nonpayment, [doctors] should be aggressive in whatever manner it takes," said Steven Rosenberg, MD, president of Palm Beach Dermatology Inc. in West Palm Beach.
Letters to Humana seeking to resolve the claims on behalf of himself and other doctors in his practice brought no recourse. After his lawyer wrote to the insurer, Dr. Rosenberg said he got a promise from Humana that it would expedite the claims.
"But here we were a year and a half later, and we were still doing this process," he said. "We basically kept getting the runaround, and we got frustrated that Humana was not responding to all our efforts."
He explored hiring an attorney to take his case to civil court. But the 40% contingency fee that would have come from whatever judgment the practice collected was not appealing.
At that point, Dr. Rosenberg put his medical research skills to work. He discovered that for the same $350 he paid the attorney to write to Humana he could file a petition against the company in Palm Beach County small claims court, where parties can represent themselves.
Because damages could not exceed $5,000 per claim, Dr. Rosenberg bundled a few bills together worth that amount, filled out a simple claim form, attached a check and, in the fall of 2009, sued the insurer in small claims court for violating Florida's prompt-payment law.
"Palm Beach Dermatology Inc. has worked for the last 29 months to remedy the issue via Humana's claims appeal/special projects process and through their appointed attorney with no resolution," the one-page complaint stated.
Legal maneuvering
Dr. Rosenberg was met in court by an attorney Humana sent to defend the case. But he was familiar with his legal rights, having been a past president of the Florida Society of Dermatology & Dermatologic Surgery and a former state medical board member, so he successfully rebuffed some of the lawyer's legal maneuvers.
When the attorney tried to argue that the dermatology practice did not obtain the requisite prior authorization before treating patients, the doctor countered that state law gave patients direct access to dermatologists without a referral. And to the insurer's contention that Palm Beach Dermatology failed to first collect payment from patients before seeking reimbursement from the insurer, Dr. Rosenberg fired back that state law prohibited such practices.
Then came a settlement offer. Humana agreed to pay the first set of claims and the doctor's filing fees, totaling $5,340, according to a court judgment dated Oct. 6, 2009. Dr. Rosenberg said the case was heard within a month of filing the lawsuit and resolved the same day.
But he warned Humana's lawyer that the case was only the beginning. "I told him this was the first of 25 claims we were going to be filing."
He took the insurer to court a second time and won again in January. Shortly after he filed the second case, Dr. Rosenberg said the practice began receiving checks in the mail from Humana totaling $90,000.
The insurer sent two representatives to the office to go through the remaining outstanding claims. Since then, Humana has restituted nearly all of the $130,000 Palm Beach Dermatology was owed, Dr. Rosenberg said. "We didn't really know if it was going to work but figured it was worth a try. Obviously, Humana got the message this was going to cost them."
I would like to see many doctors go beyond debt for services to patients, to charging for filling out pre-authorization forms, spending time on the telephone for approval, for retrieval of medical records. These are for the benefit of the insurance company. They represent contract in law, generating a debt called quantum meruit.
From the article.
Fla. doctor beats insurer -- in small claims court
In the Courts. By Amy Lynn Sorrel, amednews staff. Posted March 1, 2010.
Physicians are not known for taking health insurer payment abuses lying down, having marched big carriers into state and federal courtrooms in a series of successful class-action lawsuits over the years.
But one Florida physician caught an insurance giant from an angle it was not expecting when he launched an attack in small claims court. The dermatologist's strategy: to win back the roughly $130,000 he contends Humana Inc. owed his practice in unpaid bills since at least 2007, even if it took filing a few small claims at a time.
The strategy worked. The doctor has recouped nearly all of the money."If doctors have a legitimate right to be paid based on services they provided, insurance companies should pay. And if they think they can get away with nonpayment, [doctors] should be aggressive in whatever manner it takes," said Steven Rosenberg, MD, president of Palm Beach Dermatology Inc. in West Palm Beach.
Letters to Humana seeking to resolve the claims on behalf of himself and other doctors in his practice brought no recourse. After his lawyer wrote to the insurer, Dr. Rosenberg said he got a promise from Humana that it would expedite the claims.
"But here we were a year and a half later, and we were still doing this process," he said. "We basically kept getting the runaround, and we got frustrated that Humana was not responding to all our efforts."
He explored hiring an attorney to take his case to civil court. But the 40% contingency fee that would have come from whatever judgment the practice collected was not appealing.
At that point, Dr. Rosenberg put his medical research skills to work. He discovered that for the same $350 he paid the attorney to write to Humana he could file a petition against the company in Palm Beach County small claims court, where parties can represent themselves.
Because damages could not exceed $5,000 per claim, Dr. Rosenberg bundled a few bills together worth that amount, filled out a simple claim form, attached a check and, in the fall of 2009, sued the insurer in small claims court for violating Florida's prompt-payment law.
"Palm Beach Dermatology Inc. has worked for the last 29 months to remedy the issue via Humana's claims appeal/special projects process and through their appointed attorney with no resolution," the one-page complaint stated.
Legal maneuvering
Dr. Rosenberg was met in court by an attorney Humana sent to defend the case. But he was familiar with his legal rights, having been a past president of the Florida Society of Dermatology & Dermatologic Surgery and a former state medical board member, so he successfully rebuffed some of the lawyer's legal maneuvers.
When the attorney tried to argue that the dermatology practice did not obtain the requisite prior authorization before treating patients, the doctor countered that state law gave patients direct access to dermatologists without a referral. And to the insurer's contention that Palm Beach Dermatology failed to first collect payment from patients before seeking reimbursement from the insurer, Dr. Rosenberg fired back that state law prohibited such practices.
Then came a settlement offer. Humana agreed to pay the first set of claims and the doctor's filing fees, totaling $5,340, according to a court judgment dated Oct. 6, 2009. Dr. Rosenberg said the case was heard within a month of filing the lawsuit and resolved the same day.
But he warned Humana's lawyer that the case was only the beginning. "I told him this was the first of 25 claims we were going to be filing."
He took the insurer to court a second time and won again in January. Shortly after he filed the second case, Dr. Rosenberg said the practice began receiving checks in the mail from Humana totaling $90,000.
The insurer sent two representatives to the office to go through the remaining outstanding claims. Since then, Humana has restituted nearly all of the $130,000 Palm Beach Dermatology was owed, Dr. Rosenberg said. "We didn't really know if it was going to work but figured it was worth a try. Obviously, Humana got the message this was going to cost them."
Monday, March 8, 2010
East Brunswick, NJ, Traffic Court - Careless Driving Charge
I recommend attending this court for its entertainment and eye opening effects. The high school honor student with a little alcohol in her breathalyzer test received the maximum sentence permissible under the law. The obviously illegal alien testifying from jail on closed circuit television has no identification papers. So what does the judge do? She dismissed the charges.
I demand full discovery on the state police. The information on the police officer is highly relevant because there is no objective measurement of careless driving. This female judge refuses to grant this request. I reserve my objection for a future appeal.
I demand full discovery on the state police. The information on the police officer is highly relevant because there is no objective measurement of careless driving. This female judge refuses to grant this request. I reserve my objection for a future appeal.
Wednesday, March 3, 2010
DEA Opens Campaign to Intimidate and Deter Doctors Prescribing Buprenorphine (Suboxone), Then Hypocritically Plays Innocent
The real reason for this campaign?
The Congress wanted more buprenorphine used. The DEA does not want this expensive, brand name medication used in poorer, dark skinned patients. They want the latter on cheap methadone. Even the inspectors may have no awareness of the real motivation.
Doctors feel intimidated. There is an infinite number of deficiencies to be found in every record on earth. There is no evidence that record keeping correlates with quality of care, with patient outcomes, with the prevention of diversion, with fewer overdose deaths.
I filed Freedom of Information Act requests for all buprenorphine related training materials, communications and policy discussions.
The Congress wanted more buprenorphine used. The DEA does not want this expensive, brand name medication used in poorer, dark skinned patients. They want the latter on cheap methadone. Even the inspectors may have no awareness of the real motivation.
Doctors feel intimidated. There is an infinite number of deficiencies to be found in every record on earth. There is no evidence that record keeping correlates with quality of care, with patient outcomes, with the prevention of diversion, with fewer overdose deaths.
I filed Freedom of Information Act requests for all buprenorphine related training materials, communications and policy discussions.
Saturday, February 27, 2010
Institute of Medicine Attacks Industry Sponsored Continuing Education
Previewed here. Free registration required.
Some problems.
1) No evidence that continuing medical education serves to improve care or patient outcomes. The doctor has almost no recall of any program or of any reading. His patient experiences are seared in. One goes to a doctor not for book learning but for experience.
2) First Amendment. These doctors forget that the Free Speech Clause is a coin with two sides. One is the freedom to listen to any speech one wishes. The banning of CME programs is unlawful.
3) Conflict of Interest. The alternative to commercial CME is more bureaucracy or putting the $2 billion through medical schools, where the members of the Institute happen to work. We do not appreciate the failure to disclose this conflict of interest in their advocacy.
4) Low Quality Will be Unattractive. Government and other bureaucracies do nothing well. Their low quality and surly service will turn off clinicians.
5) Pretextual. There is no crisis in CME. This witch hunt is one against brand medications. If the sponsors were generic makers, nothing about this subject would have come up.
6) Campaign of doctor intimidation. The taking a pen with a logo may constitute a kick back. The reason? See Item 5.
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.
Saturday, February 20, 2010
Court Overturns Certificate of Merit Requirement for Medmal Claim
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.
Every doctor should put away $10,000 to fund lawsuits and administrative complaints holding plaintiffs, experts, and lawyers accountable.
Thursday, February 18, 2010
Georgia Supreme Court Allows Demand for Med Mal Expert's Own Record of Treatment in Similar Case
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."
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."
Saturday, February 13, 2010
System Rigged Airtight Against Falsely Accused Doctors - The Hyde Test
The lawyer hierarchy is totally biased against doctors. It will allow no compensation for the falsely accused doctor, despite clear provision in the Hyde Amendment. This is the second such pro-rent seeking, lawyer biased ruling for this extremist court (see United States v. Manchester Farming Partnership, 2003 C09 11 (USCA9, 2003))
That is why the innocent defendant should counterattack the federal prosecutor, the prosecution expert, and any anti-doctor judge, but during the trial itself. Count on there being no restorative justice after the trial is won. That is true despite the fact the lawyer took their high fees and costs at the point of a gun.
It should start with total e-discovery of the personal and work computers of these enemies of clinical care. I had proposed enjoining a prosecution for an agency for which I worked, at my own expense. They decided against the counterattack. They accepted a plea bargain for one quarter the amount in contention and a compliance program for five years. The cost and disruption of the compliance program dwarfed the cost of a totally guilty verdict. They would have been far better off completely losing the case.
The government is the biggest downloader and subscriber to child pornography. If any is found on a thorough forensic examination of the federal prosecutor's computers, each should be reported to the FBI, and to the Office of Professional Responsibility.
Next, organize direct actions by patients and doctors against these vicious predators. It should begin with a boycott of the lawyers by all product and service providers.
These execrable, biased, anti-doctor appellate judges arbitrarily overturned a lower court decision to award the massive legal costs to the doctor.
"In a Jan. 8 decision, the 9th U.S. Circuit Court of Appeals overturned a rare award to a physician for legal fees he spent defending himself in what turned out to be a failed health care fraud prosecution. Nevada otorhinolaryngologist Mark Capener, MD, denied any wrongdoing, and a jury in 2006 acquitted him of criminal fraud charges after a trial judge dismissed most of the claims.
Although appellate judges agreed that Nevada prosecutors committed several mistakes throughout their investigation, the court said the errors did not rise to the level of misconduct that warranted any recompense."
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."
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."
Sunday, February 7, 2010
Irresponsible Opioid Prescribing
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
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
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