Thursday, December 27, 2007
Sunday, December 23, 2007
Let's stick to a standard of care testimony. The expert may properly cite studies. These are authored by academics, most often. Clinicians spread advances by word of mouth, and they get accepted or rejected within weeks. Strong remedies will become self-evident at the gut level. Weak or ineffective remedies will fail to impress and get dropped.
If the expert proposes some standard of care, e.g. heart decelerations this many times require C-Sections, should we settle for academic studies? Shouldn't we demand the expert provide his own records on the management of similarly situated patients? If the expert can only provide 3 such records, does he qualify as an expert? Can one be expert after 3 repetitions of decision making? If he can provide a dozen such records, are they the totality of the records of similar patients, and not cherry picked records agreeing with testimony? One should demand all the records of the expert, and sample them. If a record is found that contradicts the testimony, a mistrial should be called, and the legal costs of both sides should be obtained from the lying expert's personal assets.
And, yes, experts should feel intimidated. With the absurd arrogance to dictate practices to the doctors of the entire state at the point of a gun, they should take the consequences of their lying prostitution to the land pirate.
If opposing experts testify in good faith, then a scientific controversy arises. The court has no competence to resolve it. Only additional data, confirmed by others may resolve a scientific controversy.
Whenever two legitimate experts testify, the case requires summary dismissal, as beyond the purview of the court. Failure to do so violates the procedural due process right to a fair hearing of the civil defendant.
Saturday, December 15, 2007
Sunday, December 9, 2007
The Constitution requires the showing of harm in a compelling state interest before abridging a freedom.
A licensing approach can stop harm without depriving others of adult pleasures.
Upon reaching adulthood, people could apply for separate licenses to drink alcohol, smoke, perhaps eat rich foods. People who committed crimes as juveniles should prove they have reformed. The clear and convincing standard of proof applies to licenses.
One commenter proposed insurance coverage for the harm from the adult pleasure.
Another objected to 1) loss of freedom; 2) the temptation of lawyers to increase fees, and to make the license a source of revenue.
The federal statute or constitutional amendment should prohibit any collateral purposes. It should restrict all licensing fees to the exact cost of processing, and prohibit any additional fee.
The licensing of the individual grants full freedom of enjoyment of the adult pleasure, until harm has started. The costs of all harms most often falls on the taxpayer.
Update: Not so far fetched. Here.
Sunday, December 2, 2007
Prohibition was a great period in American life. Crime decreased, in contrast to propaganda. The markers of alcoholism decreased, such as deaths from liver failure. Consumption only decreased by 50%. It had no popular support and failed. Draconian measures would be required to enforce it in the future. Laws should have popular support.
What about a licensing approach? Adults would receive a drinking license. Servers would have to verify licensure. The alcoholic adults would lose their licenses. Anyone supplying an unlicensed adult should go to jail for a short period. If harm, even to the alcoholic himself, the supplier is liable in torts. Paid supplying is an intentional tort with scienter, subject to exemplary damages. Unpaid supplying to negligence liability, after the jail term is served. If the supplier has no assets, the criminal conviction permits hard labor in restitution for the full value of the damage.
No data supports nor rebutts this approach. However, it leaves alone the 95% of people who drink without problems. It deters and seeks compensation from the enablers of the problem drinker. It seeks to reduce availability, but only to the problem drinker. As the drinker causes problems, reports from sources add points to the license, until withdrawn.
The Federal government may not mandate states pass any law. They may condition federal health payments for passage of such licensing. The Federal government certainly has a compelling government interest in reducing the impact of alcohol on health costs.
The licensing of the user approach, points, and mandatory insurance applies to all adult substances and pleasures.
Wednesday, November 28, 2007
Eugene Volokh has original thoughts about this question.
The boycott by all service and product providers of all lawyers is a good beginning to self-help in deterring the criminal cult enterprise that is the lawyer profession.
Sunday, November 25, 2007
If there is a duty to to identify, locate and serve notice, is there a duty to for a plaintiff claiming lack of informed consent about a medication or procedure?
Does nearly eliminate the tort of failure to warn?
Wednesday, October 17, 2007
This is the professional standard of due care for the lawyer. A recent law school grad, young, inexperienced, works as an assistant district attorney in the criminal law. He carries 100 cases. He has a small research budget for each. Each crime has several elements. Each element of a crime requires proof beyond a reasonable doubt (80% certainty). Each element requires not only proof it happened, but that the defendant intended each element to happen, again beyond a reasonable doubt. The prosecutor must often overcome pro-criminal bias in the jury of downtown courts. They make about $50K a year, for 80 hours a week.
The criminal prosecution wins in about 75% of cases. Why? They only bring strong cases. As to settlement of cases. Again, they plea bargain about 95% of cases, their equivalent of pre-trial settlement. Again, why such a high success rate? They only bring strong cases.
Contrast to medmal. Very experienced mid career people. They make $1 mil a year, carrying a few cases. They have research and investigation budgets with 6 numbers in them. There are 5 elements to a medmal case. No intent need be shown, only that it happened. The burden of proof is lower, the preponderance of the evidence (51% certainty). They have the victim sitting in court for the jury to pity. They select them to be cute and appealing. In medmal, over 75% of verdicts go to the doctor. Ugly people, smokers, uncouth people, even if clearly victims of medmal, need not apply. In judicial hellholes, like Philly, the rate of defense verdicts is 70%. Why? The overwhelming majority of cases are weak or frivolous. These fractions apply to even cases that never make it to trial. They fade away, as their hopelessness and injustice becomes apparent.
Why are these legal malpractices permitted? Because one cannot easily sue the opposing lawyer. One must overcome an impossible burden. One must have evidence the lawyer filed the claim knowing it had no validity. The claim must have an improper motive, such as to injure the defendant, rather than compensate the client. Short of a written confession or a videotaped conversation, these are impossible to prove. Due to their virtual immunity from legal malpractice claims by the other side, the product of the medmal lawyer remains weak and defective.
So they file 5 claims. Only one has merit and wins. That is enough to cover their costs and make a profit for a year, especially if they go after deep pockets such as a hospital.
Lawsuits will end the medmal crisis, help the lawyer profession improve, and markedly deter weak cases. This are impossible now. A law would have to pass to allow them.
One would not want to file frivolous lawsuits against the other side’s lawyer. So all elements of tort reform should be afforded them in new statutes. The doctor should not sue without a certificate of merit from a lawyer expert in medmal. The doctor should not be able to name uninvolved firm partners, etc. The doctor should not be allowed to shop for friendly venues.
This law bringing the benefits of lawyer malpractice to improve the performance of the profession will start World War III with our good friends in the legal profession. However, they will thank us later, when their performance improves from tort litigation.
They claim they have no duties to the other side, a crucial element of torts. That is just not true. Dozens of duties to the adverse third party exist in the Rules of Conduct, the Rules of Evidence, the Rules of Civil Procedure. The highest most reaches of the lawyer hierarchy support ending this lawyer immunity from accountability to the other side.
Friday, October 5, 2007
Then a vote took place. That vote reflected the opinion of the group. The first secret vote has validity.
1) There should be some provision to not count the views of any extremists.
2) The second and subsequent votes have no validity. They likely reflect the opinion of those with the greatest emotion, intimidating the rest who only want to reach a verdict so they may get back to their lives. An informational cascade follows any first secret ballot. This effect violates the fair hearing portion of the procedural due process right of the defendant.
3) The jurors are enslaved, with lives interrupted, and compensation insultingly low. Jurors are appropriately resentful of lawless enslavement. That low compensation reflects the real value the lawyer places on the service of the jury. Many high functioning individuals get out of jury duty, making the pool unrepresentative of the ability of the general population.
4) The beneficial features and requirements of the Wisdom of the Crowd gets canceled by modern jury selection and exclusion rules.
Wednesday, September 26, 2007
Why on earth would a conservative set loose 100's of 1000's of vicious violent criminals in a series of decision for which he voted or wrote? The sole explanation is the Rent Seeking Theory, to create lawyer jobs. Scalia has to take responsibility for the just beginning increase in the violent crime rate, after his series of criminal lover, senseless decisions: Apprendi / Blakely / Booker / Cunningham.
The full impact of most legal change takes a decade to fully develop. The public may look forward to accelerating increases in violent crime rates. Prosecutors, deterred by these criminal lover decisions, will be offering more favorable plea bargains. The sentencing guidelines had a small impact on decreasing crime rates in the 1990's to 2000's. The criminal, a valuable commodity for the criminal lover lawyer, could not be removed that way. So Scalia stepped in.
Scalia is responsible for the increase in violent crime and all future increases this decade. He must resign or preferably get impeached. Failing that, crime victims are justified in bringing street justice to help him understand their victimization.
Tuesday, September 25, 2007
So the answer to the above question is simple. Criminals make lawyers money. Crime victims do not, and may rot.
Congress may mandate, in exchange for law enforcement funding, a state statute eliminating this police immunity from liability to individual citizens. The crime victim could then encourage by litigation adherence by all police department to professional standards of policing.
Sunday, September 23, 2007
Immunity and Liability Are Stealthy Industrial Policy Imposed by the Lawyer, Communistic and Lawless
Kings before and after the execution of Louis XVI.
Railroads in the 19th vs in the 20th Century.
Females in divorce immune from any accountability for misconduct, do not even have to pay for a lawyer, the productive male has to pay the lawyer.
Abortion, immune, growing.
Tobacco use, was immune, now is liable. Grew, then shrank.
Lawyers and judges always immune, always growing in number.
Regulations and lawmaking. Immune and growing, no matter what harm.
Internet, immune and growing.
The KKK and black middle class. During Reconstruction, under the KKK Act, Grant hanged the KKK by the 100's. Black strivers achieved great success and prospered. After Reconstruction, the KKK had total immunity for mass murder and extra-judicial expropriation of black owned property. The KKK grew.
Doctors set their own standards of care. Juries favor them in 75% of verdicts, making them virtually immune. Health care sector is growing rapidly.
Health Maintenance Organizations have immunity for their funding decisions from ERISA. (Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004) 307 F.3d 298)
Criminals have nearly total immunity. 23 million crimes a year, only 1 in 10 is prosecuted.
Lawyers want to make money. They invent false legal doctrines, sell them to pro-lawyer biased judges and clueless juries. Lawyers set industrial policy in violation of the Commerce Clause. They regulate industry without input from either economists nor elected officials. Even the standard enactment process of regulation in the Executive Branch gets bypassed.
Tuesday, September 18, 2007
Yale is the vector for dozens of harmful Euro garbage policy ideas, enacted by both parties. For example, the law enabling and immunizing the HMO was enacted by Nixon. Most of its ideas end up as Democrat Party talking points or planks in their platform.
In the case of the law school, Yale transmitted Legal Realism from the German Free Law Movement. Its contract genius, Llewellyn, trained Cardozo. In Germany, the writing had overreached. So, a date next to a signature voided a will. The signature had to be the last writing, so said the rule. The Free Law Movement intended to soften that harshness, and make it more "English".
There was Legal Realism in the US, under which we continue to suffer. Horrible cult enforcers lawlessly impose their sick rent seeking ideas on the nation, taking it down.
In Germany, Free Law had another spawn, the Nazi Judiciary. It felt free to misinterpret or ignore the laws that would have slowed its murderous rampage down, to further its "policy considerations."
Legal Realism and the Nazi Judiciary are siblings from the same mother. I do not call her a bitch, because her aim was rational, at the turn of the 20th Century. It's her crazy kids that went too far. Before we get all uppity, one difference between them was this. The Nazi Judiciary had a lone dissenter, out of the entire judiciary and German Bar. This judge was offered retirement or execution. He chose retirement. Legal Realism has no dissenter. At Nuremberg, the other judges were hanged for their lawlessness. Justice still awaits in the US.
Yale loves the Taliban, and seeks to recruit them as students.
Saturday, September 1, 2007
The corpse is a chattel (movable personal property). Chattel is subject to eminent domain. For example, a government took fixtures and may take vehicles.
Kelo, a recent Supreme Court case, allows condemnation of property for private use. In its 124 uses of the word, property, it never uses the term, real property, implying applicability of the decision to all property, including chattel. Taking a corpse in eminent domain has great benefit, and serves a noble public purpose by 1) drastically lowering the cost of care of the recipient after transplantation; 2) transforming a moribund patient into a tax payer, back at work. The value to the recipient and to the family is infinite, has no measurement.
Government deference to superstitious, religious objection by the family of the donor violates the Establishment Clause. A law does not violate the Free Exercise Clause (of religion) if it does not single out religious activity or belief, but is “neutral and of general applicability" (Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990)).
The Florida Supreme Court upheld the constitutionality of the corneal removal statute (Florida Statute 765.5185 allowing removal of cornea), even against the wishes of the family (State v. Powell, 497 So. 2d 1188 (Fla. 1986))." The U.S. Supreme Court has let these laws stand without ruling on their constitutionality. See Georgia Lions Eye Bank Inc. v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985); cert. denied 475 U.S. 1084, 106 S.Ct. 1464, 89 L. ed 721 (1986)."
The evidence establishes that this increase in the quantity and quality of available corneal tissue was brought about by passage of the statute and is, in large part, attributable to the fact that [the law] does not place a duty upon medical examiners to seek out the next of kin to obtain consent for cornea removal (Florida v. Powell).
These statutes have been considered very effective. For example, substantial increases in corneal transplants occurred after such a statute was passed in Georgia: from 25 in 1978 to more than 1,000 in 1984 (National Conference of Commissioners on Uniform State Laws, 1987)," so reports, the Board on Health Policy. The opt out, presumed consent approach gets detailed reviews here and here.
What would happen if this statute were passed by all the states, in order to continue receiving federal health funds?
"Organ removal by surgeons.
(1) If a patient needs an organ transplant, a surgeon not involved in the care of either donor nor recipient of the organ, upon request of a recognized Organ Procurement Organization, will provide the organ of a decedent whenever the following conditions are met:
a) The decedent has not affirmed an objection in a will or other writing, when an adult. The driver license will assert the refusal to consent to organ donation (opting out), and no longer the consent to organ donation. The surgeon must presume consent in the absence of presentation of a writing indicating withholding of consent to donate all organs after death.
b) The removal of the organ will not interfere with an investigation or autopsy.
c) The corpse will be returned to the estate. The fair market price of the corpse and reasonable burial costs will be paid to the estate.
No civil or criminal action is permitted against any involved surgeon, nor any assistant, nor any ancillary personnel, nor any employer, nor any hospital for failure to obtain consent of the next of kin, nor for any act of negligence, nor for any intentional tort, such as interference with the right of burial, in the removal of any organ from the corpse of the decedent.The estate should be compensated with the market value of the corpse, and reasonable funeral costs."
The real world experience of Europe and of Asia has answered with cross-sectional naturalistic studies, comparing equivalent nations' rates of transplantation, with and without presumed consent laws. Longitudinal experience yields the same result, when rates of transplantation increase in the same location after the passage of presumed consent laws.
"...rates of heart and lung donation were at least twice as high in the two countries with presumed-consent legislation (Belgium and Austria) as in the two countries that rely on a policy of explicit consent from the donor's next of kin (Germany and The Netherlands)." (J Transpl Coord. 1996 Dec;6(4):174-7).
"The impact of the presumed consent law and a decentralized organ procurement system on organ donation: quadruplication in the number of organ donors." (Transplant Proc. 1991 Oct;23(5):2685-6). And, "There was no change in the number of suitable donors, but there was an increase in the number of liver recovery surgeries and liver transplantation, and a lower refusal rate among suitable donors." (Transplantation. 2006 Nov 15;82(9):1234-7).
Kelo may over-rule the Uniform Anatomical Gift Act, and the AMA Ethical standard on presumed consent (CEJA Report, based on PA Med Society Resolution 2-A-04). This report throws AMA support behind presumed consent for organ donation if studies show a positive effect on the procurement of organs. "It is not known whether implementation of ethically appropriate models of presumed consent or mandated choice for deceased donation would positively or negatively affect the number of organs transplanted. Therefore, physicians should encourage and support properly designed pilot studies, in relatively small populations, that investigate the effects of these policies. Unless there are data that suggest a positive effect on donation, neither presumed consent nor mandated choice for deceased donation should be widely implemented."
Now, that worldwide experience has proved effective, the AMA no longer has an excuse.
Thursday, August 23, 2007
I. To convict of a crime requires the reading of minds, called the mens rea, the guilty mind. Thus a hunter who shot another to death, thinking him a deer goes home. The hunter who shot the other because the other's wife paid him to do it gets the death penalty. The same act with the same victim outcome has disparately differing results depending on the thinking of the criminal. The lawyer makes this more complicated by inserting a hybrid state of mind, criminal recklessness, with some amount of intent. In reality, half of crimes are committed while drunk, where even the criminal has no idea what intent he had. In some cases, the crime took place during an alcohol memory blackout. There is no evidence that this form of mind reading achieves any serious goal of the criminal law, such as public safety, nor any evidence that it protects the innocent from punishment. Where is the evidence the careless hunter is any less dangerous to the public than the disciplined contract killer?
II. To collect a verdict or a settlement in torts law requires the prediction of future rare accidents. These have the reliability of predicting the winning lottery numbers.
III. The physiologically based results of a lie detector machine is banned from introduction as evidence in a trial. However, twelve strangers off the street are viewed as good truth detectors, by their use of their gut feelings.
IV. The most central doctrine of the law is the word, reasonable.
Monday, August 20, 2007
The benefits include the following. Let's go through the problems of each talking point.
(1) "• Judges would be assisted by neutral expert witnesses and guided by evidence-based practice guidelines. "
a) The neutral experts would be paper shufflers from academia, especially left wing biased, Ivy schools, with half the clinical experience of the clinicians. The deal in med school is that you get half the time off from patient care to do research. They are verifiers, not leaders nor originators, seeking grants awarded only to safe proposals. b) The guidelines would take on the force of law in the hands of the academic paper shufflers, and their biased lawyer collaborators on the bench. They would be parsed word for word, like an entertainment contract. And lawyer gotcha would be the extent of justice.
The guidelines are like restatements, summaries of studies. The studies verify 5 years later what clinicians have been doing. By the time of publication, clinicians have moved on. Studies use parametric statistics (from the formula describing the bell shaped curve). These validly predict the fractions in the bigger population, and certain assumptions must be satisfied for their validity. Clinical care is a series of on-off, single case experiments, more like flipping coins. These are better described by the binomial distribution curve. So clinical care violates the assumptions of parametric statistics. Guidelines are not relevant until the number of patients seen exceeds 100's of patients.
Guidelines are garbage science per se. They will change every two or three years. They will change because eventually, a single desperate clinician violated them. That change helped a desperate patient. Everyone then imitated the change. It got studied, verified, and included in the new guidelines years later. So reliance of the health court on guideline risks crushing innovation with the force of law and punishment.
(2) "• Awards would be more consistent. ... Health courts could make awards based on a schedule of benefits, similar to workers’ compensation."
(3)"• More patients would be compensated. Under the present tort system, plaintiffs must prove negligence by a doctor or hospital. With health courts, claimants need only show that the injury would not have occurred if best practices had been followed. The standard would be whether the injury was avoidable or preventable, not whether a physician fell below the standard of care. The entire process would be far less adversarial."
2) and 3) This workmen's compensation comparison fits. The health court will increase the filing for mild and moderate injuries. Patients will game the court, as they do workmen's comp. Costs of litigation and compensation will explode from 2-3% of the health budget to something closer to far higher workmen's compensation rates. Other lawyer experimentation with no-fault schemes such as with car insurance failed to lower total costs.
(4)"• Although more claims would be filed, the average award would be considerably lower. That’s been the experience with the Kaiser Permanente system in California where 6 million patients have signed agreements to resolve malpractice disputes through arbitration rather than jury trials."The total costs have not decreased.
(5) "• Perhaps most important, health courts would promote patient safety. Reporting information about injuries to a central data base would allow experts to determine why errors occur and how they can be prevented. The current punitive system encourages defendants to hide mistakes rather than examine them."Where is the evidence that workmen's comp promoted worker safety? Safety improves with technology, and the realization of the costs of injury.
The problems with the current torts approach do not require scrapping the entire approach. They include a majority of weak cases, established biases against defendants, pro-litigation biased rent seeking lawyers on the bench failing to enforce the rules as they stand, failure of lawyer discipline to improve their product.
A tort approach ending the self-dealt immunity of the lawyers would improve their lawsuits, decrease costs from its current baseline, and not inflict the above damages on a stressed and overly expensive health system.
Tuesday, August 7, 2007
Monday, August 6, 2007
1) law education is indoctrination, with 1L meeting more criteria of mind control;
2) the content of the core doctrines is supernatural;
3) the lawyer discipline system maintains tight control over any apostates.
Sunday, August 5, 2007
The indoctrination is so good, no law student knows it has taken place. No law student has consented to hidden indoctrination. They are taught to think like lawyers, which is quite different from their ordinary high intelligence. Anyone who has passed 1L cannot be retrieved.
This is a simple summary table of levels of persuasion. In 9 of 9 rows, legal education best fits the Indoctrination column.
It verges on "thought reform," being deceptive. These features of "thought reform" describe 1L even better than "indoctrination."
"The tactics of a thought-reform program are organized to:
- Destabilize a person's sense of self,
- Get the person to drastically reinterpret his or her life's history and radically alter his or her worldview and accept a new version of reality and causality,
- Develop in the person a dependence on the organization, and thereby turn the person into a deployable agent of the organization."
Saturday, June 30, 2007
The lawyer demands candor and self-reporting by parties. He learned this trick from Stalin. Meanwhile, the lawyer keeps self-dealt, lawyer privileges of secrecy for himself.
Defendants should naturally demand thorough e-discovery of all adverse parties, plaintiff, plaintiff lawyer, prosecutor, regulator, judge, jury (during voir dire). We do not mean the official work computer material only. Personal home computers should be demanded. If refused, motions for dismissal and sanctions should follow. Defendants should do their own internet research on each of these adversaries. Embarrassing material and costliness should be used to crush all the adversaries, as they seek to crush the defendant. Online credit card research and phone records, phone pictures, the works, have forensics rummage around. If any file is erased, it may represent a cover up, and procedurally exploited.
If a complainant gets no satisfaction from the licensing board, he has the option of filing a lawsuit in torts. A jury will then regulate the professional, based on the facts.
Not so for lawyers.
No executive branch. No legislature.
A supreme court writes the Rules of Conduct, a legislative act. It hires a prosecutor to investigate complaints. Prosecution is an executive function. This prosecutor rarely acts on public complaints against lawyers. He mostly acts on complaints from lawyer hierarchy members, such as judges. If this prosecutor finds enough to act further, he prosecutes the lawyer, before the supreme court, his own employer. If the prosecutor is an employee of the court, they have to face him every day. Defendants come and go. The prosecutor is prosecuting before his employer, the Supreme Court of the state.
Friday, June 29, 2007
Hat tip to the doctor bashing news of the day collecting symtym.
Wednesday, June 27, 2007
"Institution-level analyses showed that although students at both schools suffered, one school was perceived as more controlling than the other, predicting greater difficulties for its students." This outcome was measured by grades, bar exam results, and self-starting motivation in the first legal job.
I have demanded the scientific evidence from Dr. Lewis that national standards serve patients better than local standards. She is shunning this demand. Why? There is no straightforward rule or evidence of the superiority of one over the other.
A doctor practices in a rural location where patients must drive long distances in snow for routine care. They do their follow up care over the internet. The patient may take their own blood pressure, and the doctor may recommend a change in medication, called into the local pharmacy. Something goes wrong. The patient sues the doctor for negligence. The well paid expert from Hopkins has never run a medical practice over the internet. He testifies an in person examination is the national professional standard of due care. The jury agrees with his persuasiveness. A massive verdict goes to the plaintiff, with exemplary damages to deter such telemedicine.
Now, this doctor stops seeing patients on the internet. Other doctors learn from his verdict, and they stop seeing patients on the internet. Now, aged, frail people are driving long distances in the snow, causing many horrendous accidents on snow covered roads. Far more people are now hurt, some not driving to doctors' appointments.
The application of a retrograde national standard has now hurt many more people than the local standard of care ever had.
Dr. Lewis has to address the scenario where the local standard is better than the national standard.
This has a 100% certainty. All advances came from isolated local standards, adopted years later at a national level.
Not only will the proposal of Dr. Lewis hurt people, it may crush innovation.
I have patience. I will await her data showing national standards help patients more than local standards. Otherwise, the reverse should be implemented. States recognizing national standards as the standard of due care, should reverse their rule, and return to the reliance on local standards.
Monday, June 25, 2007
Verispan knows the entire content of every script written in the US. Not cheap but gives the totality of the practices of all doctors in the jurisdiction. For mid-4 figures, they can answer the question, how many doctors in a jurisdiction have prescribed the same medication to patients with the same demographic features?
Saturday, June 23, 2007
In the past, the Supreme Court has found persuasive the practice of a majority of states to establish the same legal doctrine in all the states. They reason, if a majority of states have a law, it likely is state standard of care in lawmaking. Her count of 29 of 50 states will likely persuade the Supreme Court, should they ever cert such a case. For example, a plaintiff in a locality rule state loses the medmal case. She would have won, if a national standard were the rule. They appeal to the Supreme Court. The Court will likely overturn the verdict for the defense, based on the majority of states' using a national standard, and not the locality rule.
This pro-plaintiff, lawyer garbage, endorsed by the left wing, clinician bashing AMA misses a few points.
1) Her lawyer assertions are conclusory. There is no scientific evidence to support this lawyer, self-serving argument. I demand her scientific and epidemiological evidence that a national standard of expert testimony has ever helped a single patient. Attorney Lewis has not yet provided these data.
2) Her anti-doctor, lawyer rent seeking promoting utterances bash local innovation. As a lawyer, she shows her contempt for the innovative local clinician. The latter leads clinical care, with the academic paper shuffler merely verifying local practices, years later. Years later still, the data get published. These are reviewed years after that for the writing of cookbook, obsolete guidelines, setting nationals standards. These reflect the medicine of 7 years before, which no local doctor is doing anymore. So, combat scene medical innovations are local. Years later, the good ones help the entire nation's civilians. They would be subject to lawyer second guessing, using obsolete, ineffective, nationals standards. At one point, the digging into the bullet wound of President Garfield, with unwashed fingers of established academic experts, that had just touched horses, that was a national standard. This national standard killed, by sepsis, a President with a survivable wound. Her argument coin, that national standards may elevate inferior local standards, has an obverse side. Superior, creative local care may be quashed, and deterred by obsolete national standards. Academic paper shuffling experts may bash the practices of more experienced, smarter local practitioners.
3) Local differences often reflect factors not controlled by a physician. For example, if only 20 year old generics are on the insurance formulary, nothing the doctor does will provide care in accordance with national standards. This local doctor basher still wants to hold them accountable, to enrich her clinical care plundering lawyer pals.
4) Her pro-plaintiff arguments violate the Tenth Amendment, and the Lopez limits on burdening the states. They over-reach into state prerogative, without policy or legal justification. She wants to impose wrongheaded legal standards from above, from the lofty academic heights where her ilk resides, to generate testimony fees for national academics clueless about local conditions. These academics often have less clinical experience or knowledge than the locals. In many cases, the locals know more about patient care than the experts, because they have done more of it.
This article is a type of guideline making. If any physician defendant finds it used in a claim against him, the defendant should ask the defense attorney to file a cross claim against attorney, Michelle Huckaby Lewis, her employers, JAMA, and the AMA for the legal harm they have caused, without the slightest scientific support in clinical care. To deter.
Thursday, June 14, 2007
1. Double Dipping. Marshall was Secretary of State for Pres. John Adams, until inauguration, March 4, 1801. He served as Chief Justice of the Supreme Court February 4, 1801. Jefferson won the election, breaking an electoral tie, February 17. Article I, Section 6, the Incompatibility Clause, prohibits simultaneous service in the Executive and Legislative branches. Service in the Judicial branch is not expressly forbidden (4).
2. Nepotism. James Marshall, the brother was assigned the task of delivering the Justice of the Peace Commissions. These were not judgeships, but at will, executive branch agency jobs for the
administration of the District of Columbia. Salary was to come from the executive branch. James failed to deliver Marbury's commission prior to midnight, March 3. Jefferson was cousin to Marshall. They hated each other.
3. Personal Involvement. The undelivered commissions were left in the office of the Secretary of State Marshall. Marshall judged his own conduct in this case.
4. Supreme Court Jurisdiction. Mr. Marbury claimed the Judiciary Act of 1789 permitted a trial at the Supreme Court on a writ of mandamus. Article III, Section 2, The Original Jurisdiction Clause, assigns appellate jurisdiction in such matters. The Supreme Court so held, to their credit. But it chose to go on with the case. It held Section 13 of the Judiciary Act, conferring such jurisdiction to be unconstitutional. Although, it felt it proper to grant Marbury his writ, the unconstitutionality of that Section precluded doing so by lack of jurisdiction.
5. Conflict of Interest. There was a little tension between Federalist Court and Republican Congress. They canceled the Supreme Court sessions of June and December, 1802. They repealed the Circuit Court Act, forcing the Justices to ride circuit, once again. They removed Justice Pickering for alcoholism and insanity. They impeached Justice Chase, but failed to remove him.
6. Misreading. Section 13 of the Judiciary Act allows mandamus remedy where the Court has jurisdiction. It does not extend jurisdiction, in violation of Article III. If it were read properly, Congressional discretion to enlarge jurisdiction, in the Exceptions and Regulation Clause, would permit enlargement of jurisdiction. The central holding is therefore incorrect (5).
7. Judicial Power to Increase Judicial Power. In its trickiness and dodging, it is equally wrong to refrain from carrying out a duty to mandate delivery of a commission. May a Judge "refuse to do justice under the law in order to advance his own personal power and that of other judges"? (6)
Judge Disqualification in 1803
In English common law, judges could be disqualified for money interest in a case (7). The Act of May 8, 1792, permitted disqualification if the Judge was "concerned in interest," had "acted in the cause, or had "been of counsel."(8). In those days, judicial temperament was supposed
to overcome bias, as a judge duty.
Judge Disqualification Today
28 USC Section 4559 applies to Federal Judges, including those on the Supreme Court (9).
Marbury grounds for modern disqualification would include: "personal knowledge of disputed evidentiary facts", "served in governmental employment and in such capacity participated as counsel, adviser or material witness", "a person within the third degree of relationship"
No waiver from the party adversely affected is permitted (Section 455 (e)).
There is no mechanism of enforcement if a Supreme Court Justice refuses to recuse voluntarily.
Exclusionary Rule II
What product or method of service from 1803 is acceptable today? None. If someone tried to sell carriages from those days for daily use, tried to practice the medicine of those days, they deserve to be arrested as a threat to public safety.
Why is a corrupt decision from 1803 holding sway? The answer is lawyer cover up, indoctrination of the nation, and worse, of themselves, and lawyer self-dealing. This cover up is for power, in furtherance of judge tyranny.
Summary impeachment is appropriate for challenged judges who violate federal statute on disqualification. Congress is unlikely to go through that difficult, time consuming process.
Failing impeachment, the decision should be voided automatically by statute. It is not enough to cancel the vote of the disqualified Justice. Given the secrecy and cover up at the Court, it is unknown if the disqualified Justice tried to convince, made deals, or otherwise influenced peers. That decision must be voided as "bearing the fruit of the poisoned tree." Marbury v Madison should be the first case so voided.
1. Barron, JA, Dienes, CT, McCormack, W, Redish, MH: Constitutional Law: Principles and Policy Cases and Materials. LexisNexis, Newark, NJ, 2002. Pp.11-12.
2. Chemerinsky, E. Constitutional Law, Principles and Policies. Aspen, New York, NY. 2002. Pp. 39-46.
3. Paulsen, MS: Marbury's Wrongness. Const Comment. 20: 343-357, 2003.
4. Id. at 350.
5. Id. at 353, summarizing several critics of this misreading.
6. Id. at 357.
7. Flamm, RE: Judicial Disqualification, Recusal and Disqualification of Judges, Aspen, New York, NY, 1996. P. 9.
8. Id. P. 10.
9. Bassett, DL: Judicial Disqualification in the Federal Appellate Courts, IA L Rev 87:1214-1256, 2002.
Monday, June 11, 2007
1) Atkins spent so much time with lawyers, his intelligence performance improved. IQ changes with education. Atkins now qualifies for the death penalty, based on his IQ test performance.
2) The Court used an obsolete definition of mental retardation, a test score. Overall function now defines MR, with greater reliability. Thus someone running a successful drug dealing business in a rough area since childhood likely has superior social and business skills. I would like to see the Justices survive that environment.
3) The Court had refused to grant a writ of certiorari to a California appellate decision banning the use of IQ tests to qualify minority students for special education help, to help. Yet it permits the use of IQ in the death penalty, to punish.
4) All behavior is brain based. It is not the fault of a professional pitcher that he can throw a ball at 95 mph. Perhaps, he should not get the consequence of a lucrative contract. Brain function problems are irrelevant to qualification for consequences of behavior, whether positive or negative. Clearer, more intense consequences help those who have trouble learning from experience.
This case may have inspired a new approach to remediation for slow learners. It should be researched in a systematic way. Send half a sample of students with MR to special education class, the other half to intern in lawyers' offices. See which group performs best on retesting a year later.
Sunday, June 10, 2007
Give penicillin to only 1 in 10 pneumonia patients. Give penicillin at 1/10th the proper dose. Give penicillin 7 years after the onset of pneumonia. Price penicillin at $1 million a dose. Among those receiving penicillin, include 20% without pneumonia at all. How does penicillin look as a remedy?
The dose-response curve has so far not appeared in the death penalty debate.
Law making and not making law are both human experimentation on a massive scale. It requires markedly above average care and verification. Pilot testing in small jurisdictions should prove a remedy. Then, apply the remedy to a larger jurisdiction. When the court impedes the death penalty, it saves the life of a convicted murderer. It does not seem to care about any possibility that it increases the murder rate and other criminal victimization rates.
An experiment should be undertaken in controlled environment, such as two large prisons. In one, all murder by inmates get a rapid death penalty response. In another, no death penalty may apply. Count the criminal victimization rates in each prison.
The Dose-Response Curve must be worked out for all remedies, especially legal remedies. Few if any legal remedies has a scientific study ahead of time. If anyone knows of some, I would like to start to collect them. Some legal remedies have post remedies studies. Many turn out to be catastrophic and get repealed. This is irresponsible, unauthorized human experimentation by lawyer with ghoulish results. Any remedy missing a prior study is a crime against humanity. Worse, it makes judges appear to be acting like know nothing two year-olds, throwing valuable vases about, chaotically, knowing nothing about what they are doing. It brings opprobrium on the rule of law. This has to change at this late date in history.
1) What dose is too little and will fail to work?
2) What dose is too high and will be toxic?
3) What is the window of time during which the correct dose must be applied? If a breast tumor is the size of a pea, it responds to surgical removal. If time has passed, and it is the size of a softball and has spread to the lymph nodes, surgery will not work.
4) What types of people will respond (host factors)?
5) How many times will the remedy have to get applied before being declared ineffective?
6) What are the limits of the remedy?
7) What is the cost of the remedy, excluding rent seeking and gouging?
8) Prove the remedy is superior to others or to doing nothing.
Scientific evidence and proof of a remedy, with the above parameters is required, or a remedy violates the procedural due process right to a fair trial, as well as a human experimentation treaty.
Thursday, June 7, 2007
This claim supports the point that lawyer Rent Seeking Theory trumps all ideology and political loyalty. Conservative, liberal, it makes no difference. Generating lawyer jobs and cashing in on torts comes before all else for the lawyer.
Wednesday, June 6, 2007
Other utterances risk jailtime.
Saturday, May 26, 2007
"... the public interest demands that attorneys, in the proper exercise of their functions as such, not be liable to adverse parties for acts performed in good faith and for the honest purpose of protecting the interests of their clients."
Smith v. Griffiths, 327 Pa. Super. 418, 476 A.2d 22 (1984)
“All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and eight and justice administered without sale, denial or delay.”
Section 11. Pennsylvania Constitution
Lawyer Duties to the Adverse Party
Torts will improve a service or product, as a goal. It must make the injured party whole for the carelessness of the defendant. The lawyer profession has been deprived of these great benefits so far. The lawyer is the first party, the client, the second party. The client has privity, an economic relationship with the lawyer, and a legal right to a professional standard of performance and due care. The adverse third party is the other side. It is a neutral term. A plaintiff might get recourse from a defense attorney filing a frivolous defense claim.
Benefit of Third Party Tort is Not Available to the Lawyer
The U.S. Supreme Court granted immunity to the lawyer, from third party torts litigation, in 1880. National Savings v Ward, 100 US 195 (1880). Bank had no recourse for a lawyer’s negligent title search on a mortgaged property, due to lack of privity. No other group has privity as an absolute obstacle to torts. No liability is possible in the absence of fraud, collusion, or privity of contract today. A court held that a doctor suing a lawyer for legal malpractice, in filing a frivolous lawsuit, had no suit because the lawyer had no duty of care to him, committed no irregular act in filing a frivolous lawsuit against him, and the legal costs, humiliation, interference with work, emotional distress alleged were not sufficient to constitute a special injury. Friedman v Dozorc, 412 Mich. 1, 312 N.W.2d 585, 1981. There are no known exceptions in other states, with many similar lawsuits.
How about the abuse of process claim? The lawyer files a claim with “the intention for which it was designed.” One must prove the claim had 1) an ulterior motive, 2) was an intentional act with an improper purpose. Short of a videotaped confession, these hurdles are impossible, especially between people who did not know each other. In another suit for abuse of process, the lawyer maintained the allegations after knowing they were not true. “...that duty does not give rise to a third party action for abuse of process unless the third party can point to a specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.” Mozzochi v Beck, 529 A.2d 171, 174, Conn., 1987. The Dean of a law school did get a $50 million settlement from a lawyer who publicly bragged, “I'd haul his ass into court and smack him,” on videotape, repeatedly played in court. The money went to another lawyer in a settlement right before verdict. No outsider would have succeeded.
See this article.
Malicious prosecution requires 1) a special injury, not one expected from being prosecuted; 2) absence of probable cause; 3) malice. These are impossible to prove in the real world, in the absence of a taped confession.
There is absolute immunity from defamation for statements in legal proceedings. Lawyers are free to allege false facts, to act outrageously to inflict emotional distress on the opposing party, to negligently misrepresent facts, to invade people’s privacy, and to intentional inflict emotional distress.
In the absence of a statute, it is entirely permissible to perjure oneself in a legal proceeding and to suborn perjury. In New York, the statute permits treble damages from a lawyer guilty of “deceit or collusion with intent to deceive the court or any party.” NY Jud Law § 487. No such statute exists in Pennsylvania.
The philosophy is that the judge should regulate the proceeding and not torts. The lawyer claims that torts is one of the best ways to regulate an enterprise.
One element to proving legal malpractice is the existence of a duty of the tortfeasor to the injured victim. (1) The lawyer believes that he has no duty to the adverse third party. The law is otherwise, as sampled below, from statute and established case law. If a lawyer carelessly violates a rule or regulation meant to protect the plaintiff or is intended to prevent the harm suffered, that violation is called negligence per se. (2) The specifics are less important than 1) their definite enumeration in writing, in clear language, in the law; 2) their great number, far from exhausted by this list. All came from ordinary references. None is original.
Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Conduct
(From, Rotunda, RD. Professional Responsibility. West. St. Paul, MN, 2004. Pp. 251-279.)
Rule 3.1. Lawyers may not assert frivolous positions, claims, defenses, or motions. Dilatory tactics are prohibited, even in criminal cases. The lawyer may not delay merely to harass or injure another. If representation has no reasonable basis or chance of support from future discovery, or is for an improper motive, it is subject to disciplinary action.
Rule 3.3 (a). The lawyer cannot “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to be directly adverse to the position of the client and not disclosed by opposing counsel.”
Rule 3.4 (a) and (d). Frivolous discovery requests prohibited. Duty of diligent compliance with proper discovery request.
Rule 3.4 (f). The lawyer may not assert personal knowledge of any fact, nor express an opinion about the justness of the claim.
Rule 3,5. This rule forbids ex parte (out of court) communication in the absence of lawyer for the other side to rebut any claim or to argue against any request.
Rule 3,5 (b). Forbids ex parte communication through the clerk of the judge.
The lawyer must reveal his client’s name. Attorney-client privilege does not cover identity of client.
The lawyer may not assist (act in concert, as an agent) the client to violate the criminal law, nor intentionally violate a civil obligation (except breach a contract or make a good faith claim to property). The lawyer has to withdraw if knows facts indicating such violations. The lawyer may not aid such client conduct by encouraging it, advice on reducing its risks, or any act that furthers such law violation. The lawyer may not knowingly assist a tortfeasor in the tortious act.
Candor Toward the Court. No false statement of fact nor of law to the court. Rule 3.3 (a)(2). Must disclose pertinent opposing legal authority in the jurisdiction, then argue against them on behalf of client. Would the judge feel fooled if the lawyer said he knew of no opposing authority? This is true even if finding opposing law or fact would be covered by attorney work product privilege.
Cannot have a claim with a “misrepresentation knowingly made, or made with reckless ignorance of truth or falsity of representation.” Rules of Prof. Conduct, Rule 8.4(c).
Unprofessional conduct will be sanctioned. Thomas v Tenneco Packaging Co., 293 F.3d 1306 (11th Cir. 2002). Insulting remarks about opposing counsel. Comments calling into question the fitness of opposing counsel. Threats. Discriminatory slurs. Impugning the character of opposing counsel.
Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Evidence and Evidence Case Law
(From, Rothstein, PF, Raeder, MS, Crump, D: Evidence, State and Federal Rules. West, St. Paul, MN, 1997.)
Lawyer should not weep. (Ferguson v Moore, Tenn. 1897; People v McGrane NY App. Div, 1960)
Per diem argument impermissible. How much would the members of the jury want to undergo the pain and suffering of the plaintiff for one day, and multiple by the expected duration.
May not liken any party to famous hero or villain.
Cannot include in any opening or closing argument, any statement not supported by the evidence, or distorting applicable law.
May not imply he knows something the jury does not when attacking the credibility of a witness.
May not urge jury to disregard facts or the law.
May not use “golden rule argument” (do unto others as you would have them do onto you). Jury has duty to base verdict on evidence and law.
Outside of opening and closing statements, lawyer may not address the jury.
May not use evidentiary objections to communicate with the witness or jury, nor to fluster the witness, not to break the impact of the opponent. (Speaking objections.)
Should not object during opening and closing statements of other side.
May not introduce evidence of insurance coverage.
May not spring surprise evidence without advance warning in the course of discovery.
May not offer evidence not worth the time to receive it.
Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Civil Procedure
Rule 11. Every pleading, motion or case document must be signed by an individual lawyer, that the lawyer has read it, that it was formed after reasonable inquiry, that it is well grounded in fact, that it is warranted by existing law or good faith argument to extend, modify, or reverse existing law. The signature certifies that the filing has no improper purpose. The court may punish the party or the attorney for a violation. This great rule was amended after an uproar by filers of improper documents to permit a 21 day take backsies. The permissible sanctions include a presumption against the document’s assertion, the payment of the other side’s legal fees resulting from the frivolous motion.
Cannot file a claim with a legal theory that is overly imaginative (“... beyond the bounds of acceptable zealous advocacy.”). In Re Jafree (1982) 93 Ill 2d 450, 67 Ill Dec 104, 444 NE2d 143.
Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Criminal Procedure
May not directly nor indirectly adversely comment on defendant’s invocation of the Fifth Amendment privilege to not testify.
May not argue there is reasonable doubt in statement to jury.
May not tell jury, defendant intends the ordinary consequences of an act.
If the error rate of a laboratory test is 1 in 100, one may not say, the sample could not match more than 1 in a million people in the local population.
The product rule forbids multiplying probabilities of events that correlate anyway (odds of man with mustache and a beard).
1. Duty today is to those whose relationship is to benefit the plaintiff. It covers knowledge, skill, prudence, diligence. Next, we need causation of the injury, without a foreseeable intervening cause. Harm can be economic, but for the lawyer’s failure. The plaintiff must show, he would have won the original trial. He must show, he could have collected from the defendant had he won the case. The lawyer has “judgmental immunity” if the law is uncertain.
2. Luban, D. Ethics and Malpractice, 12 Miss. Coll. L. Rev. 151 (1991).