Saturday, June 23, 2007

The Locality Rule

JAMA, increasingly, a left wing propaganda organ of the American Medical Association, has a review. The doctor bashing, biased lawyer who wrote it advocates that all states adopt a national standard of due care in medical malpractice claims, as 29 states do. The rest allow a statewide standard, a same- or similar-community standard. This anti-doctor lawyer finds the locality rule ethically "troubling." The local standard rule may make it difficult for the plaintiff to find a doctor to testify against another. She finds the locality rule promotes substandard medicine. She advocates, "more evidence-based, a resource based, nationwide standard of care should be adopted in all jurisdictions." To further lawyer plundering of clinical care, she claims this legal doctrine, "would better enable plaintiffs to find experts willing to testify and further promote justice for all parties."

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.


matrix said...

Thank you so much for telling it for what it is. We are having fun in Tennessee where the state bar is upset as it passed a state wide standard of practice FOR Attorneys! Now, the state trial bar is trying to have it overturned so they can claim a locality standard. They just show us that it all depends on if you are the palintiff or the defendant.

Supremacy Claus said...

Matrix: Suggest FDA pre-emption of local products liability standards, the land pirates have kittens.