Sunday, January 2, 2011
There Is No Child Psychiatrist Shortage, Just Laziness
Pediatrics and Family Practice sees 4600 and 4200 visits a year. Child and Adult psychiatriy see 2100 ambulatory encounters in 2009, each. This implies there is no shortage of psychiatrist or of child psychiatrists. It implies they are half as productive, and lazy. We do not need more psychiatrists or child psychiatrists, we need more that are willing to work harder. Earnings have not increased much. That means our productivity has stagnated as well. If the productivity of psychiatrists could approach that of Pediatrics or Family Medicine, it would be equivalent to doubling the supply of psychiatrists. The latter would also have the justification for demands of higher salaries and wages.
Friday, November 26, 2010
Court Overturns Vermont Prohibition of Doctor Prescription Tracking
The decision is here. "Because we find that section 17 is an impermissible restriction on commercial speech under Central Hudson, we reverse and remand."
These prohibitions are part of a witch hunt against the prescribing of brand name medications to dark skinned people on Medicaid. They want to interfere with their use in drug sales, pitching, and detailing to doctors.
The drug company sales aside, these databases serve another purpose. They are the best indicator of a standard of care. If hundreds or thousands of doctors are prescribing the same thing, the same way, for the same off label purpose, then that is the very best, empirically based indicator of the standard of care.
Innocent defendants in medical malpractice suits, if accused of misusing medication, can get the database. It will show many doctors do the same thing. It is the best indicator. Guidelines represent the medicine of the past.
These prohibitions are part of a witch hunt against the prescribing of brand name medications to dark skinned people on Medicaid. They want to interfere with their use in drug sales, pitching, and detailing to doctors.
The drug company sales aside, these databases serve another purpose. They are the best indicator of a standard of care. If hundreds or thousands of doctors are prescribing the same thing, the same way, for the same off label purpose, then that is the very best, empirically based indicator of the standard of care.
Innocent defendants in medical malpractice suits, if accused of misusing medication, can get the database. It will show many doctors do the same thing. It is the best indicator. Guidelines represent the medicine of the past.
Friday, November 5, 2010
Update: Meeting with Pharmaceutical Company Corporate Counsel Next Week
As a courtesy, I sent a list of topics of interest ahead of the meeting. They canceled the meeting.
A couple of days before, a downtown Philly jury found the company not guilty of any fraud. These jurors are totally biased against corporations and anyone productive. For that verdict to have been handed down, the case must have been very weak. Judge just cancels the verdict. He says, the corporation will pay $millions anyway. He thus illustrates one of my points that the adversary must be counterattacked, at least with demands for total e-discovery.
I plan to buy a few shares of every drug company and then to file intervention claims when they decide to settle or to cave in to the enemies of clinical care.
A couple of days before, a downtown Philly jury found the company not guilty of any fraud. These jurors are totally biased against corporations and anyone productive. For that verdict to have been handed down, the case must have been very weak. Judge just cancels the verdict. He says, the corporation will pay $millions anyway. He thus illustrates one of my points that the adversary must be counterattacked, at least with demands for total e-discovery.
I plan to buy a few shares of every drug company and then to file intervention claims when they decide to settle or to cave in to the enemies of clinical care.
Friday, October 22, 2010
Judge Allows Deposition of Plaintiff Lawyer
I have advocated the legal accountability of the adversary and of the judge.The defense bar has an economic conflict of interest. It can replace the client rather easily. If the prosecution is deterred, it loses its job.
Court Allows Chevron to Depose Lead Plaintiffs Lawyer in Ecuador Case
Judge based his ruling on 'extraordinarily revealing' outtakes from the documentary 'Crude'
The American Lawyer
October 22, 2010
A federal judge in Manhattan has taken the extraordinary step of granting Chevron's motion to depose a counsel for its adversaries in the massive toxic tort litigation over oil contamination in Lago Agrio, Ecuador.
If Southern District of New York Judge Lewis A. Kaplan's ruling Wednesday in In re Application of Chevron Corp., 10 MC 00002, stands, Chevron's counsel from Gibson, Dunn & Crutcher and counsel for two former Chevron lawyers facing criminal charges in Ecuador will be able to ask lead plaintiffs attorney Steven Donziger questions, under oath, about his alleged attempts to influence a supposedly neutral expert appointed by the Ecuadorean court to offer a global damages assessment. The judge also has ordered Donziger to produce documents related to his interactions with the expert.
Kaplan based his ruling on evidence Chevron produced from outtakes of the documentary "Crude," which chronicles the Lago Agrio case. He called the outtakes "extraordinarily revealing."
"The outtakes contain substantial evidence that Donziger and others were involved in ex parte contacts with the court to obtain appointment of the expert; met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs' own consultants; and wrote some or all of the expert's final report that was submitted to the Lago Agrio court and the Prosecutor General's Office, supposedly as the neutral and independent product of the expert," Kaplan wrote.
Moreover, the judge concluded, the outtakes contained evidence that Donziger lobbied for criminal charges against the former Chevron lawyers in order to pressure Chevron in the Lago Agrio case.
Based on that evidence, the judge found, the need to obtain evidence from Donziger outweighed the general prejudice against deposing adversary counsel in civil litigation, particularly because Donziger was not acting only as a lawyer for the Ecuadorian claimants (whom he cannot actually represent in Ecuador).
"His principal functions have included lobbying, media and press relations, and politics," Kaplan wrote. "He has acknowledged in the outtakes that the purported civil litigation in Ecuador 'is not a legal case. It's a political battle' in which 'we need to get the politics in order in a country that doesn't favor people from the rainforest.'"
If Southern District of New York Judge Lewis A. Kaplan's ruling Wednesday in In re Application of Chevron Corp., 10 MC 00002, stands, Chevron's counsel from Gibson, Dunn & Crutcher and counsel for two former Chevron lawyers facing criminal charges in Ecuador will be able to ask lead plaintiffs attorney Steven Donziger questions, under oath, about his alleged attempts to influence a supposedly neutral expert appointed by the Ecuadorean court to offer a global damages assessment. The judge also has ordered Donziger to produce documents related to his interactions with the expert.
Kaplan based his ruling on evidence Chevron produced from outtakes of the documentary "Crude," which chronicles the Lago Agrio case. He called the outtakes "extraordinarily revealing."
"The outtakes contain substantial evidence that Donziger and others were involved in ex parte contacts with the court to obtain appointment of the expert; met secretly with the supposedly neutral and impartial expert prior to his appointment and outlined a detailed work plan for the plaintiffs' own consultants; and wrote some or all of the expert's final report that was submitted to the Lago Agrio court and the Prosecutor General's Office, supposedly as the neutral and independent product of the expert," Kaplan wrote.
Moreover, the judge concluded, the outtakes contained evidence that Donziger lobbied for criminal charges against the former Chevron lawyers in order to pressure Chevron in the Lago Agrio case.
Based on that evidence, the judge found, the need to obtain evidence from Donziger outweighed the general prejudice against deposing adversary counsel in civil litigation, particularly because Donziger was not acting only as a lawyer for the Ecuadorian claimants (whom he cannot actually represent in Ecuador).
"His principal functions have included lobbying, media and press relations, and politics," Kaplan wrote. "He has acknowledged in the outtakes that the purported civil litigation in Ecuador 'is not a legal case. It's a political battle' in which 'we need to get the politics in order in a country that doesn't favor people from the rainforest.'"
Sunday, October 3, 2010
DEA to Chronic Pain Patients: Suffer.
But the paper work always comes first. I would like to see organized medicine protect clinical care from these heartless lawyers setting sick DEA managing pain and interfering with care. They should join in a massive class action lawsuit, with a Section 1983 claim against the DEA. First, the DEA should be enjoined from enforcing its arbitrary and lawyerized rules. Second, the DEA should be made to pay for the damages in pain caused by their arbitrary delay. To deter.
It took two days to get the painkiller.
Mr. Lorenz, 75, lives in a nursing home in St. Louis. Until recently, the nurses would have sent an order to the pharmacy for the Percocet, based on instructions phoned in from the clinic — a longstanding practice for nursing homes, which typically do not have a full-time doctor on staff.
But now that practice has come under the scrutiny of the Drug Enforcement Administration. Last November, the pharmacy serving Mr. Lorenz’s nursing home announced that it would no longer dispense certain narcotics without a written or faxed prescription from a doctor.
For Mr. Lorenz, this meant a weekend of pain. The doctor at the pain clinic was not available, and the nursing home’s doctor on call would not write a prescription without examining Mr. Lorenz in person. For the next two days, Mr. Lorenz said, “I was miserable. I needed it to get straightened out. It was killing me.”
Staff members assured him that the drug was on its way at least six or seven times, said Mr. Lorenz, a former Marine and police officer.
“It’ll be there by midnight. It’ll be there by 2 a.m. The pharmacist kept saying he needed to talk to the doctor. It was real, real rough.”
Nursing homes and doctors say patients like Mr. Lorenz have become unintended casualties in the war on drugs because of a new level of enforcement intended to prevent narcotics from getting into the wrong hands. About 1.4 million Americans live in nursing homes.
The D.E.A. is investigating pharmacists in “about five states” for dispensing the drugs to nursing homes without direct written orders from a doctor, said Gary L. Boggs, an executive assistant in the agency’s Office of Diversion Control.
Earlier this year, the Senate’s Special Committee on Aging heard testimony from long-term-care professionals describing delays in delivering pain medications to patients. Two Democratic committee members, Senators Herb Kohl of Wisconsin and Sheldon Whitehouse of Rhode Island, have urged Attorney General Eric H. Holder Jr. to find a solution.
“We keep hearing the right things from the D.E.A. on this issue, but we haven’t seen any action,” Mr. Kohl said through an aide.
Mr. Boggs said the agency was just trying to protect patients. “This isn’t a matter of us being bureaucratic pencil pushers,” he said. “What we see is nurses unilaterally calling in prescriptions, or pharmacists dispensing controlled substances without a prescription, then trying to get a doctor to sign a prescription for a patient he never saw.”
In the meantime, doctors say, their patients suffer — sometimes for half an hour, sometimes for several days.
“There’s just a lot of potential for error in the process,” said Dr. Jonathan Musher, a geriatrician and past president of the American Medical Directors Association, a trade group of long-term-care doctors and administrators, which has sought a change in the requirements.
The problems are most common when patients first arrive at nursing homes from hospitals, Dr. Musher said.
For example, he recently had a patient move to a nursing home after a hip fracture. At the time, she was not on narcotic pain medication. That night the nurse called Dr. Musher to say that the woman was in pain. “I was told I had to call the pharmacist,” he said. “O.K., what’s the pharmacist’s number? The nurse has to call me back, she wasn’t sure. I get a call back with the number. I call the 800 number and leave a message. I get a call back a half hour later.
“So now there’s been a 45-minute delay. Now he tells me I have to fax in a prescription. I’m not home, so I say I will do it in 15 minutes. After I fax it, I call the nursing home, and they haven’t heard anything from the pharmacist. Finally I told them to send the patient to the hospital.”
She got her medication, “but that’s something we don’t want to do,” Dr. Musher said. “There are health issues with transfer, as well as the costs of transfer.”
Critics of the nursing home industry say the bigger problem is that facilities are not providing adequate medical care to their patients.
A Battle Against Prescription Drugs Causes Pain
By JOHN LELAND
Roland Lorenz has surgical screws in his back and neck and a pin in his upper leg, and when his pain reared up one recent weekend, he knew he needed something strong. He had just been to a pain clinic, where the doctor ordered an increase in his dosage of Percocet, a narcotic.It took two days to get the painkiller.
Mr. Lorenz, 75, lives in a nursing home in St. Louis. Until recently, the nurses would have sent an order to the pharmacy for the Percocet, based on instructions phoned in from the clinic — a longstanding practice for nursing homes, which typically do not have a full-time doctor on staff.
But now that practice has come under the scrutiny of the Drug Enforcement Administration. Last November, the pharmacy serving Mr. Lorenz’s nursing home announced that it would no longer dispense certain narcotics without a written or faxed prescription from a doctor.
For Mr. Lorenz, this meant a weekend of pain. The doctor at the pain clinic was not available, and the nursing home’s doctor on call would not write a prescription without examining Mr. Lorenz in person. For the next two days, Mr. Lorenz said, “I was miserable. I needed it to get straightened out. It was killing me.”
Staff members assured him that the drug was on its way at least six or seven times, said Mr. Lorenz, a former Marine and police officer.
“It’ll be there by midnight. It’ll be there by 2 a.m. The pharmacist kept saying he needed to talk to the doctor. It was real, real rough.”
Nursing homes and doctors say patients like Mr. Lorenz have become unintended casualties in the war on drugs because of a new level of enforcement intended to prevent narcotics from getting into the wrong hands. About 1.4 million Americans live in nursing homes.
The D.E.A. is investigating pharmacists in “about five states” for dispensing the drugs to nursing homes without direct written orders from a doctor, said Gary L. Boggs, an executive assistant in the agency’s Office of Diversion Control.
Earlier this year, the Senate’s Special Committee on Aging heard testimony from long-term-care professionals describing delays in delivering pain medications to patients. Two Democratic committee members, Senators Herb Kohl of Wisconsin and Sheldon Whitehouse of Rhode Island, have urged Attorney General Eric H. Holder Jr. to find a solution.
“We keep hearing the right things from the D.E.A. on this issue, but we haven’t seen any action,” Mr. Kohl said through an aide.
Mr. Boggs said the agency was just trying to protect patients. “This isn’t a matter of us being bureaucratic pencil pushers,” he said. “What we see is nurses unilaterally calling in prescriptions, or pharmacists dispensing controlled substances without a prescription, then trying to get a doctor to sign a prescription for a patient he never saw.”
In the meantime, doctors say, their patients suffer — sometimes for half an hour, sometimes for several days.
“There’s just a lot of potential for error in the process,” said Dr. Jonathan Musher, a geriatrician and past president of the American Medical Directors Association, a trade group of long-term-care doctors and administrators, which has sought a change in the requirements.
The problems are most common when patients first arrive at nursing homes from hospitals, Dr. Musher said.
For example, he recently had a patient move to a nursing home after a hip fracture. At the time, she was not on narcotic pain medication. That night the nurse called Dr. Musher to say that the woman was in pain. “I was told I had to call the pharmacist,” he said. “O.K., what’s the pharmacist’s number? The nurse has to call me back, she wasn’t sure. I get a call back with the number. I call the 800 number and leave a message. I get a call back a half hour later.
“So now there’s been a 45-minute delay. Now he tells me I have to fax in a prescription. I’m not home, so I say I will do it in 15 minutes. After I fax it, I call the nursing home, and they haven’t heard anything from the pharmacist. Finally I told them to send the patient to the hospital.”
She got her medication, “but that’s something we don’t want to do,” Dr. Musher said. “There are health issues with transfer, as well as the costs of transfer.”
Critics of the nursing home industry say the bigger problem is that facilities are not providing adequate medical care to their patients.
Wednesday, September 22, 2010
Judge: Despite Defense Jury Verdict Drug Company Must Pay
Bizarre.
Judge: Pharma Company Overcharged State by $27.6 Million
The Legal Intelligencer
September 22, 2010
A Commonwealth Court judge has ordered pharmaceutical company Bristol-Myers Squibb Co. to stop inflating the wholesale price of its drugs purchased by the state's pharmaceutical drug programs for the poor and for the elderly. Commonwealth Court Judge Robert E. Simpson said in a Sept. 10 order in Commonwealth of Pennsylvania v. Bristol-Myers Squibb Co. that Bristol-Myers, headquartered in New York City, violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law with unfair or deceptive practices. The judge said Bristol-Myers owes $27.6 million to the state of Pennsylvania for the price of drugs charged in violation of fair trade practices.
But the judge said in his order that he was not awarding damages or attorney fees. The judge said he did not have sufficient information to calculate civil penalties because the plaintiff's expert did not limit his information to how many times the average wholesale price changed for Bristol-Myers Squibb's drugs from 1991 until 2004 and the expert may have included drugs not subject to the litigation.
Simpson's order followed a defense jury verdict in the case. The jury did not find common-law negligent misrepresentation or fraudulent misrepresentation by Bristol-Myers Squibb, Simpson wrote, but he said that the standard under the unfair trade practices law is different. A plaintiff's lack of reliance on the representation and a plaintiff's knowledge that a representation is inaccurate are not "complete defenses in an enforcement action brought in the public interest," Simpson said.
Wednesday, September 15, 2010
Meeting with Pharmaceutical Company Corporate Counsel Next Week
The doctor is the real customer for prescription medications. The doctor can also get legal standing by buying a share of company stock. Such ownership would allow the doctor to intervene when a company is about to make a mistake detrimental to the interest of the doctor and of the patients.
I hope the attorney will allow recording of the meeting so it may be posted here.
Here are some areas of concern.
1) Most of the enforcement actions of the DOJ on behalf of the FDA have been of mala prohibita, with no evidence of any harm to patients. Off label promotion most often benefits patients. If it can be shown to have helped some patients. Therefore they are pretextual (false) uses of the law to raise revenue for the government. These prosecutions should get enjoined as a matter of policy to protect research, the interests of patients, and the independence of street clinicians to help patients.
2) Why not attack the prosecutor, the FDA officials, the whistleblowers, and the judges? They are mortal enemies to clinical care and deserve no human consideration. Personal destruction should be a standard price paid by all enemies of clinical care. It can start with total e-discovery of their personal and government computers. As a start, the government is the biggest subscriber and downloader of child porn. The prosecutor will say, these images are part of his job. Sure. That is what all perps say. Let him explain them to the FBI. Every utterance should be parsed for a violation of a professional rule of conduct and reported to the appropriate investigatory authority. Let these enemies of clinical care undergo perpetual state of being the target of an investigation. Such a tactic in the past resulted in the end of a long line of lawsuits, the exit of the lawyer from that field, and the experts never testifying again.
3) Off label use and promotion is the biggest source of undiscovered medical advance at no additional cost. If a company is accused of such, it should ask the judge, to dismiss the case as a matter of policy. Such prosecutions deter the massive lode of medical advances yet to be mined.
4) Black box, class warning labels not applicable to a member should be resisted to avoid the deterrence of the non-specialist.
5) The campaign against industry sponsorship of continuing education, sandwiches, pens, etc. is not driven by misguided, crazed left wing ideologues. It is driven by evil insurance companies. They want to end the prescribing of brand name medications to dark skinned people on Medicaid, to enhance the profitability of their government contracts. Senator Grassley, on a witch hunt against drug companies is a paid stooge of Blue Cross/Blue Shield. When people write to persuade me to switch to obsolete medications. I offer to come over, and to give these medication to their pets. They refuse. So, why would I should feel pressure to switch to a generic when these are not acceptable for use in animals?
6) I may buy a share of stock in every pharmaceutical company. That would give me standing to file an intervention claim every time a phony settlement is agreed upon. These settlement hurt the shareholder and the public interest. They should be blocked on policy grounds and any prosecution enjoined.
7) I propose the establishment of a public interest interest law firm funded by $million each year from each pharmaceutical company. It would sue the enemies of clinical care, and hound them, including the bureaucracy. It would campaign to hobble and eliminate the FDA, as an obstacle to medical progress.
I hope the attorney will allow recording of the meeting so it may be posted here.
Here are some areas of concern.
1) Most of the enforcement actions of the DOJ on behalf of the FDA have been of mala prohibita, with no evidence of any harm to patients. Off label promotion most often benefits patients. If it can be shown to have helped some patients. Therefore they are pretextual (false) uses of the law to raise revenue for the government. These prosecutions should get enjoined as a matter of policy to protect research, the interests of patients, and the independence of street clinicians to help patients.
2) Why not attack the prosecutor, the FDA officials, the whistleblowers, and the judges? They are mortal enemies to clinical care and deserve no human consideration. Personal destruction should be a standard price paid by all enemies of clinical care. It can start with total e-discovery of their personal and government computers. As a start, the government is the biggest subscriber and downloader of child porn. The prosecutor will say, these images are part of his job. Sure. That is what all perps say. Let him explain them to the FBI. Every utterance should be parsed for a violation of a professional rule of conduct and reported to the appropriate investigatory authority. Let these enemies of clinical care undergo perpetual state of being the target of an investigation. Such a tactic in the past resulted in the end of a long line of lawsuits, the exit of the lawyer from that field, and the experts never testifying again.
3) Off label use and promotion is the biggest source of undiscovered medical advance at no additional cost. If a company is accused of such, it should ask the judge, to dismiss the case as a matter of policy. Such prosecutions deter the massive lode of medical advances yet to be mined.
4) Black box, class warning labels not applicable to a member should be resisted to avoid the deterrence of the non-specialist.
5) The campaign against industry sponsorship of continuing education, sandwiches, pens, etc. is not driven by misguided, crazed left wing ideologues. It is driven by evil insurance companies. They want to end the prescribing of brand name medications to dark skinned people on Medicaid, to enhance the profitability of their government contracts. Senator Grassley, on a witch hunt against drug companies is a paid stooge of Blue Cross/Blue Shield. When people write to persuade me to switch to obsolete medications. I offer to come over, and to give these medication to their pets. They refuse. So, why would I should feel pressure to switch to a generic when these are not acceptable for use in animals?
6) I may buy a share of stock in every pharmaceutical company. That would give me standing to file an intervention claim every time a phony settlement is agreed upon. These settlement hurt the shareholder and the public interest. They should be blocked on policy grounds and any prosecution enjoined.
7) I propose the establishment of a public interest interest law firm funded by $million each year from each pharmaceutical company. It would sue the enemies of clinical care, and hound them, including the bureaucracy. It would campaign to hobble and eliminate the FDA, as an obstacle to medical progress.
Sunday, August 15, 2010
Harvard Law Review Mate: Obama Narcissitic, Lazy, Being Groomed From Beginning
Obama's tuition payments, and admission with poor grades remain a mystery.He may have been sponsored by Saudi elements.
Unlike organized medicine, the AAPS is doing something to oppose Obamacare by filing a lawsuit in federal court. It has survived the summary judgment phase, and should be supported.
I do not believe the argument will work. The law forces people in repose to act to buy a product.
Well, the government does that a lot. It forces duties that are detrimental to the public, the time to fill out tax forms, jury duty, registration for the draft. These have been upheld by the Supreme Court. The attorney believes the vote will be 4 to 4 with Kennedy casting the deciding vote to overturn the law.
I support the aims of the organization and its actions, even if some members do not have mainstream views.
Unlike organized medicine, the AAPS is doing something to oppose Obamacare by filing a lawsuit in federal court. It has survived the summary judgment phase, and should be supported.
I do not believe the argument will work. The law forces people in repose to act to buy a product.
Well, the government does that a lot. It forces duties that are detrimental to the public, the time to fill out tax forms, jury duty, registration for the draft. These have been upheld by the Supreme Court. The attorney believes the vote will be 4 to 4 with Kennedy casting the deciding vote to overturn the law.
I support the aims of the organization and its actions, even if some members do not have mainstream views.
Thursday, August 5, 2010
AMA Study: Medical Malpractice Ubiquitous and Has Big Impact on Clinical Care
The solution is to allow the adverse third party to sue the lawyer for legal malpractice. It appears 90% of claims are weak, and the filing of a weal claim is legal malpractice. The lawyer will argue, the lawyer cannot have a duty to the adverse party. It would make his job impossible. This is not true. The lawyer has dozens of duties to the adverse third party, enumerated in the Rules of Civil Procedure, of Evidence, of Conduct, in hundreds of precedent setting case decisions.
August 5, 2010 — More than 42% of physicians have been sued for medical malpractice at some point in their careers, and more than 20% were sued at least twice, according to a new American Medical Association (AMA) report.
An average of 95 claims were filed for every 100 physicians — almost 1 per physician — the AMA's Physician Practice Information survey of 5825 physicians, fielded in 2007 and 2008, found.
Despite the pervasive threat of litigation across 42 different specialties surveyed, two thirds of claims are dropped or dismissed, and physicians prevail 90% of the time in cases that go to trial, the study found. Still, the costs to physicians in terms of malpractice premiums and to the entire healthcare system resulting from the practice of defensive medicine are quite high. Average defense costs per claim range from a low of $22,000 among claims that are dropped or dismissed to a high of more than $100,000 for cases that go to trial.
"Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence how and where physicians practice, when they retire, and how often they practice wasteful defensive medicine," AMA Immediate Past-President J. James Rohack, MD, told Medscape Medical News. "This litigious climate hurts patients' access to physician care at a time when the nation is working to reduce unnecessary healthcare costs.
"Unfortunately, there are no real surprises in this study for us," said Dr. Rohack, a cardiologist in Temple, Texas. "It reconfirms the need for a solution to our current tort system. If the nation is ever going to control the rise in healthcare costs, we have to eliminate wasteful defensive medicine spending."
Other highlights in the report include:
From Medscape Medical News
Malpractice Threat to Physicians Pervasive, AMA Study Finds
| |
An average of 95 claims were filed for every 100 physicians — almost 1 per physician — the AMA's Physician Practice Information survey of 5825 physicians, fielded in 2007 and 2008, found.
Despite the pervasive threat of litigation across 42 different specialties surveyed, two thirds of claims are dropped or dismissed, and physicians prevail 90% of the time in cases that go to trial, the study found. Still, the costs to physicians in terms of malpractice premiums and to the entire healthcare system resulting from the practice of defensive medicine are quite high. Average defense costs per claim range from a low of $22,000 among claims that are dropped or dismissed to a high of more than $100,000 for cases that go to trial.
"Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence how and where physicians practice, when they retire, and how often they practice wasteful defensive medicine," AMA Immediate Past-President J. James Rohack, MD, told Medscape Medical News. "This litigious climate hurts patients' access to physician care at a time when the nation is working to reduce unnecessary healthcare costs.
"Unfortunately, there are no real surprises in this study for us," said Dr. Rohack, a cardiologist in Temple, Texas. "It reconfirms the need for a solution to our current tort system. If the nation is ever going to control the rise in healthcare costs, we have to eliminate wasteful defensive medicine spending."
Other highlights in the report include:
- Nearly 61% of physicians aged 55 years and older have been sued.
- There is wide variation in the effect of liability claims between specialties. The number of claims per 100 physicians was more than 5 times greater for general surgeons and obstetricians/gynecologists than it was for pediatricians and psychiatrists.
- Before they reach the age of 40 years, more than 50% of obstetricians/gynecologists have already been sued.
- Ninety percent of general surgeons aged 55 years and older have been sued.
Sunday, August 1, 2010
Never Events: Trojan Horses for Death Panels
These are errors in care that are so outrageous, they should never happen. Should they occur, the payment authority has no obligation to pay for the work done. In the case of psychiatry, these are unjust. Patients who want to kill themselves cannot really be stopped 100% of the time. As to patient elopment, if there are escapes from high security prisons, mental health units should not be held to any higher standard of security. Medicare and Medicaid began denying treatment for these preventable complications. The assumption is that they all stem from clinical error, which are 100% avoidable.
In a study of surgery, factors such as the severity of symptoms, complexity of comorbidity both affected outcomes, and were beyond the control of the clinician. (Arch Surg, 145: 148-151, 2010). These very sick patients were more likely to develop post-operative pneumonias.
What will be the effects if these never events are permitted to be used as a pretext to not pay for expensive and complicated care?
1) denial of Care. Clinicians will refuse to perform procedures on patients with severe symptoms or complex comorbidities, because of the greater chance of a never event;
2) government entities and their agents, wealthy, powerful insurance companies will be unjustly enriched at the expense of smaller health care providers;
3) further defunding of health care, and shrinkage of availability, especially to very ill, complicated patients;
4) ironic increases in never events, as these are covered up, and the factor cluster analyses needed will not be done to make system wide changes necessary to prevent them in the future;
5) the non-payment represents a Fifth Amedment taking without a fair hearing;
6) punishment of a person for the intentional acts of another, such as elopment or suicide, violates procedural due process rights;
7) the non-payment may violate the ADAAA rights of severely ill people.
In a study of surgery, factors such as the severity of symptoms, complexity of comorbidity both affected outcomes, and were beyond the control of the clinician. (Arch Surg, 145: 148-151, 2010). These very sick patients were more likely to develop post-operative pneumonias.
What will be the effects if these never events are permitted to be used as a pretext to not pay for expensive and complicated care?
1) denial of Care. Clinicians will refuse to perform procedures on patients with severe symptoms or complex comorbidities, because of the greater chance of a never event;
2) government entities and their agents, wealthy, powerful insurance companies will be unjustly enriched at the expense of smaller health care providers;
3) further defunding of health care, and shrinkage of availability, especially to very ill, complicated patients;
4) ironic increases in never events, as these are covered up, and the factor cluster analyses needed will not be done to make system wide changes necessary to prevent them in the future;
5) the non-payment represents a Fifth Amedment taking without a fair hearing;
6) punishment of a person for the intentional acts of another, such as elopment or suicide, violates procedural due process rights;
7) the non-payment may violate the ADAAA rights of severely ill people.
Saturday, July 10, 2010
1952 Cunningham in the Rain
Some may disapprove of driving such a car in the rain. However, no race would have been called off for rain. And the experience of being there was deeply moving. This car won a 12 hour all out race in 1953. So, live with it, all overweening, pansy car critics.
It should be noted, no car was harmed in the filming of this clip. Back inside, it had a thorough blow drying with compressed air hoses.
Coming Shortage of Physicians
If there is a shortage of something, shouldn't its price go up? The earnings of New Jersey physicians are in free fall. And HMO's carry legal immunity and appear to be above the law.
It is usually argued that tort liability is a substitute for violent revenge. If that is true, then the obverse is true. Immunity fully justifies violence.
Addressing the Anticipated New Jersey Physician Shortage
7 July 2010
By Patricia A. Costante
In recent months, there have been several reports published that have forecasted dramatic physician shortages in New Jersey. The New Jersey Physician Workforce Task Force Report published by the New Jersey Council of Teaching Hospitals projects a shortfall of more than 2,800 physicians by the year 2020. Even more alarming is the fact that the 2009 report of the Resident Exit Survey (an annual report prepared by New Jersey Council of Teaching Hospitals) shows a precipitous decline in the number of graduating medical residents who are choosing to practice in New Jersey. In 2009, only 32% of graduating residents stated that they intended to establish a practice in New Jersey, which represents a 15 percent decline in just one year. This report indicates that the anticipated 2,800 physician shortage may be closer to 3,250.
While the recent reports from the New Jersey Council on Teaching Hospitals have brought renewed attention to the issue, the impending physician shortage is not a new concept. Since 2005, a number of reports and studies have been published by at least 29 states and the Association of American Medical Colleges that have stated that the United States will be facing a shortage of 150,000 doctors by 2025.
The anticipated physician shortage in New Jersey will likely be felt at perhaps the worst possible time, as we all start to experience the impact of President Obama’s healthcare reform. Under the Patient Protection and Affordable Care Act, primary care physicians, identified as general practitioners, internists, family physicians and pediatricians, will play a significant role in coordinating the care of each of their patients, especially those with multiple chronic conditions. The New Jersey Physician Workforce Task Force has concluded that there is already a current shortage within primary care specialties. As New Jersey’s insured population gets set to expand by nearly 1.3 million patients, the supply of primary care physicians will clearly be insufficient to respond to the growing need. There are also many specialties that are predicted to have shortages, particularly neurosurgery and pediatric subspecialties.
It is usually argued that tort liability is a substitute for violent revenge. If that is true, then the obverse is true. Immunity fully justifies violence.
Addressing the Anticipated New Jersey Physician Shortage
7 July 2010
By Patricia A. Costante
In recent months, there have been several reports published that have forecasted dramatic physician shortages in New Jersey. The New Jersey Physician Workforce Task Force Report published by the New Jersey Council of Teaching Hospitals projects a shortfall of more than 2,800 physicians by the year 2020. Even more alarming is the fact that the 2009 report of the Resident Exit Survey (an annual report prepared by New Jersey Council of Teaching Hospitals) shows a precipitous decline in the number of graduating medical residents who are choosing to practice in New Jersey. In 2009, only 32% of graduating residents stated that they intended to establish a practice in New Jersey, which represents a 15 percent decline in just one year. This report indicates that the anticipated 2,800 physician shortage may be closer to 3,250.
While the recent reports from the New Jersey Council on Teaching Hospitals have brought renewed attention to the issue, the impending physician shortage is not a new concept. Since 2005, a number of reports and studies have been published by at least 29 states and the Association of American Medical Colleges that have stated that the United States will be facing a shortage of 150,000 doctors by 2025.
The anticipated physician shortage in New Jersey will likely be felt at perhaps the worst possible time, as we all start to experience the impact of President Obama’s healthcare reform. Under the Patient Protection and Affordable Care Act, primary care physicians, identified as general practitioners, internists, family physicians and pediatricians, will play a significant role in coordinating the care of each of their patients, especially those with multiple chronic conditions. The New Jersey Physician Workforce Task Force has concluded that there is already a current shortage within primary care specialties. As New Jersey’s insured population gets set to expand by nearly 1.3 million patients, the supply of primary care physicians will clearly be insufficient to respond to the growing need. There are also many specialties that are predicted to have shortages, particularly neurosurgery and pediatric subspecialties.
Saturday, July 3, 2010
Distress About the Doubling of Army Suicides
One refers the Army to colleagues in the Air Force. Without hand wringing, nor $50 million study, they cut the rate, at little additional cost.
The results were duplicated when assertive case management was instituted in a nation. Same effect from aggressive management in an HMO.
The results were duplicated when assertive case management was instituted in a nation. Same effect from aggressive management in an HMO.
Effect of Obamacare on Doctors
The news is mostly bad.
Obamacare and its Impact on Doctors
14 June 2010
By Robert E. Moffit
Don’t expect doctors to give the Patient Protection and Affordable Care Act a clean bill of health. The act will reinforce the worst features of existing third-party payment arrangements in both the private and public sectors — arrangements that already compromise the professional independence and integrity of the medical profession.
Doctors will find themselves subject to more, not less, government regulation and oversight. Moreover, they will become increasingly dependent on unreliable government reimbursement for medical services. Medicare and Medicaid payment, including irrational government payment updates, are preserved (though shaved) and expanded to larger portions of the population.
The Act creates even more bureaucracies with authority over the kinds of health benefits, medical treatments and procedures that Americans get through public and private health insurance. The new law provides no serious relief for tort liability. Not surprisingly, various surveys reveal deep dissatisfaction and demoralization among medical professionals.
Under the new law, an estimated 18 million of the 34 million who would gain coverage over the next 10 years would be enrolled in Medicaid, a welfare program jointly administered and funded by the federal government and the states.
Such a massive Medicaid expansion will displace private health coverage, and expand government control over health care financing and delivery. Physician payments in the major entitlement programs, Medicare and Medicaid, are well below the prevailing rates in the private sector. On average, doctors in Medicare are paid 81 percent of private payment; physicians in Medicaid are paid 56 percent of private payment. Needless to say, today there are sporadic access issues for patients in Medicare, and major access problems for patients in Medicaid.
The new law does not substantially change the general pattern of the government’s systems of physician payment. Indeed, it only expands their reach and adds new regulatory restrictions. For example, beginning this year, the new law will prohibit physicians from referring patients to hospitals in which they have ownership, with the exception of hospitals that treat a large number of county patients enrolled in Medicaid.
Obamacare and its Impact on Doctors
14 June 2010
By Robert E. Moffit
Don’t expect doctors to give the Patient Protection and Affordable Care Act a clean bill of health. The act will reinforce the worst features of existing third-party payment arrangements in both the private and public sectors — arrangements that already compromise the professional independence and integrity of the medical profession.
Doctors will find themselves subject to more, not less, government regulation and oversight. Moreover, they will become increasingly dependent on unreliable government reimbursement for medical services. Medicare and Medicaid payment, including irrational government payment updates, are preserved (though shaved) and expanded to larger portions of the population.
The Act creates even more bureaucracies with authority over the kinds of health benefits, medical treatments and procedures that Americans get through public and private health insurance. The new law provides no serious relief for tort liability. Not surprisingly, various surveys reveal deep dissatisfaction and demoralization among medical professionals.
Under the new law, an estimated 18 million of the 34 million who would gain coverage over the next 10 years would be enrolled in Medicaid, a welfare program jointly administered and funded by the federal government and the states.
Such a massive Medicaid expansion will displace private health coverage, and expand government control over health care financing and delivery. Physician payments in the major entitlement programs, Medicare and Medicaid, are well below the prevailing rates in the private sector. On average, doctors in Medicare are paid 81 percent of private payment; physicians in Medicaid are paid 56 percent of private payment. Needless to say, today there are sporadic access issues for patients in Medicare, and major access problems for patients in Medicaid.
The new law does not substantially change the general pattern of the government’s systems of physician payment. Indeed, it only expands their reach and adds new regulatory restrictions. For example, beginning this year, the new law will prohibit physicians from referring patients to hospitals in which they have ownership, with the exception of hospitals that treat a large number of county patients enrolled in Medicaid.
Monday, June 28, 2010
Daubert Applies to the Criminal Trial. New Jersey Limits the Effect of Eyewitness Testimony
The trial itself is Medieval garbage from the disputation method of Scholasticism, as a method of arriving at some answer to an important question. There are no validation nor even reliability data available to this essential legal methodology.
New Jersey is a leader in addressing problems with eyewitness testimony
By Emilie Lounsberry
Inquirer Staff Writer
McKinley Cromedy spent five years behind bars in New Jersey after a rape victim testified she was certain he was the one who attacked her.
Cromedy's lawyer questioned the ability of the woman, who is white, to differentiate among black men like the defendant, but the jury convicted Cromedy on the strength of the victim's memory.
DNA eventually showed he didn't do it, and the New Jersey Supreme Court responded with a bold move: It ordered trial judges across the state to instruct juries about the difficulties of cross-racial identification.
More than a decade later, New Jersey remains a leader nationally in efforts to deal with the problem of misidentification. A report filed last week with the state high court said that even more steps were needed to take advantage of the wealth of scientific studies casting light on the issue.
"New Jersey is a vanguard state," said Duquesne University law professor John T. Rago, among those working on the issue in Pennsylvania as part of an examination of the underlying causes of wrongful convictions.
Rago and others said Pennsylvania has a way to go to catch up with its neighboring state on the possible pitfalls of eyewitness testimony, which is among the most powerful evidence in criminal cases.
"There hasn't been much in the way of reform in Pennsylvania at all," said Gary Wells, a psychology professor at Iowa State University who was one of seven experts to testify before the special master who filed the New Jersey report on the issue.
A final report to the Pennsylvania Senate, due in late summer, is expected to explore eyewitness identification.
"It's not an easy issue," said Rago, who said the 51 committee members were examining scientific advancements focusing on a number of avenues of criminal investigation.
The problem with eyewitness identification has come to light because of DNA testing, the great equalizer in the criminal justice system because it helps to convict the guilty and clear the innocent.
About three-quarters of the 254 defendants exonerated nationally by DNA testing, including Cromedy, had been convicted largely on the basis of eyewitness testimony.
"It was him," the young rape victim testified in 1994, telling a jury that Cromedy had attacked her in her basement apartment near the Rutgers University campus in New Brunswick.
New Jersey is a leader in addressing problems with eyewitness testimony
By Emilie Lounsberry
Inquirer Staff Writer
McKinley Cromedy spent five years behind bars in New Jersey after a rape victim testified she was certain he was the one who attacked her.
Cromedy's lawyer questioned the ability of the woman, who is white, to differentiate among black men like the defendant, but the jury convicted Cromedy on the strength of the victim's memory.
DNA eventually showed he didn't do it, and the New Jersey Supreme Court responded with a bold move: It ordered trial judges across the state to instruct juries about the difficulties of cross-racial identification.
More than a decade later, New Jersey remains a leader nationally in efforts to deal with the problem of misidentification. A report filed last week with the state high court said that even more steps were needed to take advantage of the wealth of scientific studies casting light on the issue.
"New Jersey is a vanguard state," said Duquesne University law professor John T. Rago, among those working on the issue in Pennsylvania as part of an examination of the underlying causes of wrongful convictions.
Rago and others said Pennsylvania has a way to go to catch up with its neighboring state on the possible pitfalls of eyewitness testimony, which is among the most powerful evidence in criminal cases.
"There hasn't been much in the way of reform in Pennsylvania at all," said Gary Wells, a psychology professor at Iowa State University who was one of seven experts to testify before the special master who filed the New Jersey report on the issue.
A final report to the Pennsylvania Senate, due in late summer, is expected to explore eyewitness identification.
"It's not an easy issue," said Rago, who said the 51 committee members were examining scientific advancements focusing on a number of avenues of criminal investigation.
The problem with eyewitness identification has come to light because of DNA testing, the great equalizer in the criminal justice system because it helps to convict the guilty and clear the innocent.
About three-quarters of the 254 defendants exonerated nationally by DNA testing, including Cromedy, had been convicted largely on the basis of eyewitness testimony.
"It was him," the young rape victim testified in 1994, telling a jury that Cromedy had attacked her in her basement apartment near the Rutgers University campus in New Brunswick.
Thursday, June 24, 2010
Letter from Medical Directors of Pharmacy Benefit Plan to Psychiatrists
The letter outlined the data from one perspective, and failed to provide any balance about the use of neuroleptic tranquilizers in children.
Here are some problems with this advocacy.
1) Failure to disclose a conflict of interest. If these directors get bonuses based on unused funds, they profit personally from the use of generics. That should be disclosed.
2) Mass prescribing. It is not advisable to enter a theater and to yell, everyone in here is to start to take Lithium. As mass prescribing is not acceptable, mass unprescribing is too.
3) These medical directors are paper shufflers, telling experienced clinicians how to prescribe. It is not only an act of medicine, it is an act of supermedicine, bossing the doctors of the entire state.
4) Agency. These are agents of contractors that are quasi-governmental organizations. Doctors who get sued for following their suggestions should file cross claims against them, their agencies, and state officials, as individuals.
5) Golden Rule. Would providers take these medications themselves? Over 95% of providers would take second generation tranquilizers and not first generation ones. I doubt any of these medical directors would allow me to feed their dogs Haldol or Thorazine.
6) The question of the use of first generation tranquilizers is not settled. It is misleading to present as such. A counterpoint box should be included in any future communication.
Here are some problems with this advocacy.
1) Failure to disclose a conflict of interest. If these directors get bonuses based on unused funds, they profit personally from the use of generics. That should be disclosed.
2) Mass prescribing. It is not advisable to enter a theater and to yell, everyone in here is to start to take Lithium. As mass prescribing is not acceptable, mass unprescribing is too.
3) These medical directors are paper shufflers, telling experienced clinicians how to prescribe. It is not only an act of medicine, it is an act of supermedicine, bossing the doctors of the entire state.
4) Agency. These are agents of contractors that are quasi-governmental organizations. Doctors who get sued for following their suggestions should file cross claims against them, their agencies, and state officials, as individuals.
5) Golden Rule. Would providers take these medications themselves? Over 95% of providers would take second generation tranquilizers and not first generation ones. I doubt any of these medical directors would allow me to feed their dogs Haldol or Thorazine.
6) The question of the use of first generation tranquilizers is not settled. It is misleading to present as such. A counterpoint box should be included in any future communication.
Sunday, June 20, 2010
The Arrogance of the Plaintiff Expert is Exceeded by Only by Inexperience, Lack of Common Sense, and Ignorance of the Law: The 15-Minute Med Check
Dr. Douglas Mossman is a better columnist than the horrible person he replaced. I do not want him gone, as I demanded his predecessor be gone. The latter must have generated massive protests against his anti-clinician bias. Dr. Mossman, nevertheless, has a conflict of interest, which he has failed to disclosed. As the head of a forensic psychiatry service, he likely does better when litigation is needlessly churned over. If anyone learns he is testifying as a plaintiff expert, I would appreciate the information, so that I may begin to act against this clinician basher.
This column is useful. However, it should have a counterpoint section to correct its anti-clinician bias.
Dr. Mossman misleads by omission.
1) The clinician must exercise clinical judgment. There is no such thing as a 15 minute med check standard of care. The duration of a session is clinical decision based on need. Some patients need 2 minutes every 6 months. Others need 2 hours a day to prevent a catastrophe. The majority of patients get no time at all, since they do not come back after they improve. Is there a duty to hunt these down and to force a 15 minute med check on them, against their wills? No. They need a zero minute med check, and will call if they worsen again.
2) His false utterances were they to be made in testimony would have to meet the Daubert Standard or the Frye Standard for scientific expert testimony, depending on the state. The clinician should find which applies in his state. Then every utterance of the plaintiff expert should be subjected to their standards. Both are named after Supreme Court of the US cases, and are the law of the land. The federal Rules of Evidence have incorporated the Daubert standard as a statutory requirement for expert testimony.
3) That being said, there is no correlation between the extent and quality of the medical record and quality of care. The record requirement is to intimidate, and to harass the clinician. It makes the life of people like Dr. Mossman easier, as well. They can find more words to use against the innocent defendant. If I am a patient suffering from some injury or crushing chest pain or intense depression, and the doctor is documenting me, I am getting pretty angry. I am going to toss that stupid laptop and that notepad from the window. Remind the Doc, the pain is here, and it is agonizing, stop record keeping and start taking care of my suffering.
Doctors like Dr. Mossman are really enablers and collaborators of the lawyer profession oppressor, as it seeks to plunder and destroy clinical care. The personal counterattack on these disloyal experts should be pitiless.
This column is useful. However, it should have a counterpoint section to correct its anti-clinician bias.
Dr. Mossman misleads by omission.
1) The clinician must exercise clinical judgment. There is no such thing as a 15 minute med check standard of care. The duration of a session is clinical decision based on need. Some patients need 2 minutes every 6 months. Others need 2 hours a day to prevent a catastrophe. The majority of patients get no time at all, since they do not come back after they improve. Is there a duty to hunt these down and to force a 15 minute med check on them, against their wills? No. They need a zero minute med check, and will call if they worsen again.
2) His false utterances were they to be made in testimony would have to meet the Daubert Standard or the Frye Standard for scientific expert testimony, depending on the state. The clinician should find which applies in his state. Then every utterance of the plaintiff expert should be subjected to their standards. Both are named after Supreme Court of the US cases, and are the law of the land. The federal Rules of Evidence have incorporated the Daubert standard as a statutory requirement for expert testimony.
3) That being said, there is no correlation between the extent and quality of the medical record and quality of care. The record requirement is to intimidate, and to harass the clinician. It makes the life of people like Dr. Mossman easier, as well. They can find more words to use against the innocent defendant. If I am a patient suffering from some injury or crushing chest pain or intense depression, and the doctor is documenting me, I am getting pretty angry. I am going to toss that stupid laptop and that notepad from the window. Remind the Doc, the pain is here, and it is agonizing, stop record keeping and start taking care of my suffering.
Doctors like Dr. Mossman are really enablers and collaborators of the lawyer profession oppressor, as it seeks to plunder and destroy clinical care. The personal counterattack on these disloyal experts should be pitiless.
Wednesday, June 16, 2010
Law Student Outside of Top 8 Schools Have It Really Tough
It is time to view the lawyer profession as a regulated utility product. We are overlawyered. Underlawyering has equally bad consequences. There a just right amount of lawyering, likely about 500,000 fewer than the current 1.3 million lawyers now working. Like predators, they are overly decimating our economic and safety environment.
Sunday, June 13, 2010
Wake Up, Fellow Law Professors, to the Casualties of Our Enterprise
Brian Tamanaha
It’s grim reading. The observations are raw, bitter, and filled with despair. It is easier to avert our eyes and carry on with our pursuits. But please, take a few moments and force yourself to look at Third Tier Reality, Esq. Never, Exposing the Law School Scam, Jobless Juris Doctor, Temporary Attorney: The Sweatshop Edition, and linked sites. Read the posts and the comments. These sites are proliferating, with thousands of hits.
Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.
Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures. Many graduates can’t get jobs. Many graduates end up as temp attorneys working for $15 to $20 dollars an hour on two week gigs, with no benefits. The luckier graduates land jobs in government or small firms for maybe $45,000, with limited prospects for improvement. A handful of lottery winners score big firm jobs.
And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.
This dismal situation was not created by the current recession—which merely spread the pain up the chain into the lower reaches of elite schools. This has been going on for years.
The law graduates posting on these sites know the score. They know that law schools pad their employment figures—96% employed—by counting as “employed” any job at all, legal or non-legal, including part time jobs, including unemployed graduates hired by the school as research assistants (or by excluding unemployed graduates “not currently seeking” a job, or by excluding graduates who do not supply employment information). They know that the gaudy salary numbers advertised on the career services page—“average starting salary $125,000 private full time employment”—are actually calculated based upon only about 25% of the graduating class (although you can’t easily figure this out from the information provided by the schools). They know all this because they know of too many classmates who didn’t get jobs or who got low paying jobs—the numbers don’t jibe with their first hand knowledge.
Sunday, June 13, 2010
Wake Up, Fellow Law Professors, to the Casualties of Our Enterprise
Brian Tamanaha
It’s grim reading. The observations are raw, bitter, and filled with despair. It is easier to avert our eyes and carry on with our pursuits. But please, take a few moments and force yourself to look at Third Tier Reality, Esq. Never, Exposing the Law School Scam, Jobless Juris Doctor, Temporary Attorney: The Sweatshop Edition, and linked sites. Read the posts and the comments. These sites are proliferating, with thousands of hits.
Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.
Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures. Many graduates can’t get jobs. Many graduates end up as temp attorneys working for $15 to $20 dollars an hour on two week gigs, with no benefits. The luckier graduates land jobs in government or small firms for maybe $45,000, with limited prospects for improvement. A handful of lottery winners score big firm jobs.
And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.
This dismal situation was not created by the current recession—which merely spread the pain up the chain into the lower reaches of elite schools. This has been going on for years.
The law graduates posting on these sites know the score. They know that law schools pad their employment figures—96% employed—by counting as “employed” any job at all, legal or non-legal, including part time jobs, including unemployed graduates hired by the school as research assistants (or by excluding unemployed graduates “not currently seeking” a job, or by excluding graduates who do not supply employment information). They know that the gaudy salary numbers advertised on the career services page—“average starting salary $125,000 private full time employment”—are actually calculated based upon only about 25% of the graduating class (although you can’t easily figure this out from the information provided by the schools). They know all this because they know of too many classmates who didn’t get jobs or who got low paying jobs—the numbers don’t jibe with their first hand knowledge.
Sunday, June 13, 2010
Desuetude: A Simple Tool to Clean the Regulatory and Statutory Codes of Bad Laws
There is a procedural due process right to notice. It says, one must warn the public of a new rule or of an arrest warrant or a new law suit claim before enforcing it. Notice gives the person an opportunity to fight enforcement of this damaging decision. In the case of the criminal law, the Sixth Amendment requires one be informed of specific charges.
If a law or regulation prohibits a behavior but has not been enforced in 5 years, then it provides false notice. And false notice can be as oppressive and unconstitutional as lack of notice.
Instead of opening yet another bureaucratic office, why not enact legislation that any rule or statute not enforced for five years is repealed. A list of such laws should be drawn up at the end of each session of the state legislature, and all such laws should be repealed formally.
This simple tool reflects the opinion of officials who have not enforced the rule. The officials themselves nullify the rule by their not enforcing it.
Only West Virginia has case law supporting desuetude,
"The seminal modern case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:
1. The statute proscribes only acts that are malum prohibitum and not malum in se;
2. There has been open, notorious and pervasive violation of the statute for a long period; and
3. There has been a conspicuous policy of nonenforcement of the statute.
This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003)[1]"
If a law or regulation prohibits a behavior but has not been enforced in 5 years, then it provides false notice. And false notice can be as oppressive and unconstitutional as lack of notice.
Instead of opening yet another bureaucratic office, why not enact legislation that any rule or statute not enforced for five years is repealed. A list of such laws should be drawn up at the end of each session of the state legislature, and all such laws should be repealed formally.
This simple tool reflects the opinion of officials who have not enforced the rule. The officials themselves nullify the rule by their not enforcing it.
Only West Virginia has case law supporting desuetude,
"The seminal modern case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:
1. The statute proscribes only acts that are malum prohibitum and not malum in se;
2. There has been open, notorious and pervasive violation of the statute for a long period; and
3. There has been a conspicuous policy of nonenforcement of the statute.
This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003)[1]"
Thursday, June 3, 2010
Traffic Court as a Bunko Operation
Inconvenience as a Law Tool
They make 100 people come at 9 AM. There is an order of appearance which the judge claims was set by the Supreme Court of New Jersey. Those with plea agreements, the prisoners in the jail, those who want a trial who are represented by attorneys, and lastly, those who want a trial and are representing themselves. This order will become clearer later. I had demanded discovery in a prior appearance, and they had sent me a videotape of the traffic stop and the notes on the ticket. They had not sent me anything about the officer. This is needed because the elements of careless driving are so subjective, the character of the accuser is material. None of that was sent. One famous careless driving charge was that against Tiger Woods recently. When I sent a second demand letter of the prosecutor, they replied by moving up my court date by 5 days. I called the clerk who absolutely refused to reschedule it to the later date. I demanded to speak to the chief judge about scheduling and the unfairness of changing it at the last minute. He refused to accept my call. The defendant is an innocent party, and the judge is too good to take a phone call after making a very disruptive schedule change.
True Aim of Traffic Court Appears to Be Revenue Raising
But sit in the back of the court at the start of the day, and within 10 minutes one understands what the place is really about. Within 10 minutes, 5 people have pled to the amended charge of unsafe driving, with $123 fine, $33 in court costs, and a $250 New Jersey state surcharge. A dozen consecutive defendants are pleading to the same charge, unsafe driving, and thanking the court. They have been let off easy, and without points. So this court is rolling along, and is making around $10,000 an hour.
Hardly Working
The judge works a half hour, and needs a break for a half hour, perhaps to avoid fatigue. He opens with the explanation that their traffic charge is a criminal charge requiring the prosecution meet the burden of proof of beyond a reasonable doubt. He will not tolerate rudeness. If your cell phone rings in court, it will be confiscated, and the owner will be put last in line for the day.
The bailiff calls out the list of names, 5 at a time. They stand in line to speak to the prosecutor. The latter is different each time, knows nothing about the charge, asks about it. Then, you got it he offers unsafe driving charge with the above fine, but no points in New Jersey. The problem for me is that unsafe driving still gets 2 points in Pennsylvania. And the sole charge without points is speeding by less than 5 mph. The prosecutor did not disclose that. I had to learn it from the practice manual of the Municipal court, which I bought used.
There is a light hearted camaraderie on the line to the prosecutor. The vast majority of people are recent immigrants with accents, and the rest are working class guidos from the area, which is in Soprano country.
Send in the Goons
I get into the office, and I tell the prosecutor that he has been stonewalling the discovery I demanded, and that mistake will change his life. He says, you are threatening me, and calls the police. I reply that asserting a legal right is not a threat and that he has libeled me to the police, now in the room, hand on pistol, yelling, sit down, and be quiet. I want to avoid the disorderly conduct charge and an arrest that day, so I comply.
Continuances to Break Innocent Defendants
Another defendant is Israeli. His police officer does not show up for a trial. The judge grants the prosecution a continuance, to return another day with the police officer. The defendant complains he has already lost a day of work, and his wife is pregnant in Israel. The judge demands he show him a ticket to Israel, proving he is going there. The defendant does not have one, but continues to argue about the burden being imposed.
Send in the Goons Again
The judge stands up, and demands he be quiet. The defendant continues to complain. Four East Brunswick police officers surround him, hands on weapons. The defendant and I get the message. There will be no trial, never. He decides to accept a plea bargain, despite his feeling he is innocent.
I accepted an unrelated charge that carries no points in Pennsylvania, and that is half the cost of the most common plea, unsafe driving. It carries no points in New Jersey but does in Pennsylvania. I accept a plea to driving 1 to 4 miles over the speed limit, the sole moving violation without points in Pennsylvania. The fine is $100, doubled in a 65 mph zone, plus $33 court costs, for a total of $233, instead of $433 for unsafe driving. The New Jersey prosecutor does not tell me Pennsylvania law. I had to find out Unsafe Driving still carries points in Pennsylvania from research of used library editions of the manuals on the New Jersey driving laws.
Rules of Conduct for Judges I run into my new Israeli friend at the pay booth. I offer to write a letter of complaint to the Judicial Review Board for the outburst by the judge. He declines, stating he still has to drive in the vicinity and does not want to be targeted.
Upon return to the court with the plea ticket, the atmosphere is completely different. The judge is calm, he apologizes for his temper outburst. There are no goons. Everything is friendly and business like.
Same goes with my plea deal.
They make 100 people come at 9 AM. There is an order of appearance which the judge claims was set by the Supreme Court of New Jersey. Those with plea agreements, the prisoners in the jail, those who want a trial who are represented by attorneys, and lastly, those who want a trial and are representing themselves. This order will become clearer later. I had demanded discovery in a prior appearance, and they had sent me a videotape of the traffic stop and the notes on the ticket. They had not sent me anything about the officer. This is needed because the elements of careless driving are so subjective, the character of the accuser is material. None of that was sent. One famous careless driving charge was that against Tiger Woods recently. When I sent a second demand letter of the prosecutor, they replied by moving up my court date by 5 days. I called the clerk who absolutely refused to reschedule it to the later date. I demanded to speak to the chief judge about scheduling and the unfairness of changing it at the last minute. He refused to accept my call. The defendant is an innocent party, and the judge is too good to take a phone call after making a very disruptive schedule change.
True Aim of Traffic Court Appears to Be Revenue Raising
But sit in the back of the court at the start of the day, and within 10 minutes one understands what the place is really about. Within 10 minutes, 5 people have pled to the amended charge of unsafe driving, with $123 fine, $33 in court costs, and a $250 New Jersey state surcharge. A dozen consecutive defendants are pleading to the same charge, unsafe driving, and thanking the court. They have been let off easy, and without points. So this court is rolling along, and is making around $10,000 an hour.
Hardly Working
The judge works a half hour, and needs a break for a half hour, perhaps to avoid fatigue. He opens with the explanation that their traffic charge is a criminal charge requiring the prosecution meet the burden of proof of beyond a reasonable doubt. He will not tolerate rudeness. If your cell phone rings in court, it will be confiscated, and the owner will be put last in line for the day.
The bailiff calls out the list of names, 5 at a time. They stand in line to speak to the prosecutor. The latter is different each time, knows nothing about the charge, asks about it. Then, you got it he offers unsafe driving charge with the above fine, but no points in New Jersey. The problem for me is that unsafe driving still gets 2 points in Pennsylvania. And the sole charge without points is speeding by less than 5 mph. The prosecutor did not disclose that. I had to learn it from the practice manual of the Municipal court, which I bought used.
There is a light hearted camaraderie on the line to the prosecutor. The vast majority of people are recent immigrants with accents, and the rest are working class guidos from the area, which is in Soprano country.
Send in the Goons
I get into the office, and I tell the prosecutor that he has been stonewalling the discovery I demanded, and that mistake will change his life. He says, you are threatening me, and calls the police. I reply that asserting a legal right is not a threat and that he has libeled me to the police, now in the room, hand on pistol, yelling, sit down, and be quiet. I want to avoid the disorderly conduct charge and an arrest that day, so I comply.
Continuances to Break Innocent Defendants
Another defendant is Israeli. His police officer does not show up for a trial. The judge grants the prosecution a continuance, to return another day with the police officer. The defendant complains he has already lost a day of work, and his wife is pregnant in Israel. The judge demands he show him a ticket to Israel, proving he is going there. The defendant does not have one, but continues to argue about the burden being imposed.
Send in the Goons Again
The judge stands up, and demands he be quiet. The defendant continues to complain. Four East Brunswick police officers surround him, hands on weapons. The defendant and I get the message. There will be no trial, never. He decides to accept a plea bargain, despite his feeling he is innocent.
I accepted an unrelated charge that carries no points in Pennsylvania, and that is half the cost of the most common plea, unsafe driving. It carries no points in New Jersey but does in Pennsylvania. I accept a plea to driving 1 to 4 miles over the speed limit, the sole moving violation without points in Pennsylvania. The fine is $100, doubled in a 65 mph zone, plus $33 court costs, for a total of $233, instead of $433 for unsafe driving. The New Jersey prosecutor does not tell me Pennsylvania law. I had to find out Unsafe Driving still carries points in Pennsylvania from research of used library editions of the manuals on the New Jersey driving laws.
Rules of Conduct for Judges I run into my new Israeli friend at the pay booth. I offer to write a letter of complaint to the Judicial Review Board for the outburst by the judge. He declines, stating he still has to drive in the vicinity and does not want to be targeted.
Upon return to the court with the plea ticket, the atmosphere is completely different. The judge is calm, he apologizes for his temper outburst. There are no goons. Everything is friendly and business like.
Same goes with my plea deal.
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