Wednesday, March 4, 2015

Alabama Court Orders a Halt to Same-Sex Marriage Licenses -

Nina Simone sang "Alabama's got me so upset, Tennessee made me lose my rest, and everybody knows about Mississippi...Goddamn!"  Is it dejavu all over again or does Alabama's Supreme Court have a valid point about states rights and the jurisprudential principal of comity? - gwc

Alabama Court Orders a Halt to Same-Sex Marriage Licenses - "The Alabama Supreme Court on Tuesday night ordered probate judges around the state to stop issuing marriage licenses to same-sex couples, ruling in direct opposition to a federal judge that the state’s ban on same sex marriage did not violate the United States Constitution.

In a 7-to-1 decision, the court ruled that “Alabama law allows for ‘marriage’ between only one man and one woman,” and that the state’s probate judges “have a ministerial duty not to issue any marriage license contrary to this law.”

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Tuesday, March 3, 2015

Interim Report of President's Task Force on 21st Century Policing

President of the United States: Barack Obama
The President's Task Force on 21st Century Policing has issued an interim report.  The message is simple: protect and serve, work to develop trust.  Eighty five Americans were killed by police last month.  There are plausible expectations for almost all of them.  But necessity not plausibility is what is required for broad public trust of the police.  For that to happen facts like these reported by The Economist must change:
In 2012, according to data compiled by the FBI, 410 Americans were “justifiably” killed by police—409 with guns. That figure may well be an underestimate. Not only is it limited to the number of people who were shot while committing a crime, but also, amazingly, reporting the data is voluntary.
Last year, in total, British police officers actually fired their weapons three times. The number of people fatally shot was zero. In 2012 the figure was just one. Even after adjusting for the smaller size of Britain’s population, British citizens are around 100 times less likely to be shot by a police officer than Americans. Between 2010 and 2014 the police force of one small American city, Albuquerque in New Mexico, shot and killed 23 civilians; seven times more than the number of Brits killed by all of England and Wales’s 43 forces during the same period.

Some excerpts from the President's task force's interim report:

Guardian principle
1.1 RECOMMENDATION: Law enforcement culture should embrace a guardian mindset to build public trust and legitimacy. Toward that end, police and sheriffs’ departments should adopt procedural justice as the guiding principle for internal and external policies and practices to guide their interactions with the citizens they serve. How officers define their role will set the tone for the community. As Plato wrote, “In a republic that honors the core of democracy—the greatest amount of power is given to those called Guardians. Only those with the most impeccable character are chosen to bear the responsibility of protecting the democracy.” Law enforcement cannot build community trust if it is seen as an occupying force coming in from outside to rule and control the community. 

1.2.1 ACTION ITEM: The U.S. Department of Justice should develop and disseminate case studies that provide examples where past injustices were publicly acknowledged by law enforcement agencies in a manner to help build community trust. 

1.3 RECOMMENDATION: Law enforcement agencies should establish a culture of transparency and accountability in order to build public trust and legitimacy. This will help ensure decision making is understood and in accord with stated policy. 

1.3.1 ACTION ITEM: To embrace a culture of transparency, law enforcement agencies should make all department policies available for public review and regularly post on the department’s website information about stops, summonses, arrests, reported crime, and other law enforcement data aggregated by demographics.
 1.3.2 ACTION ITEM: When serious incidents occur, including those involving alleged police misconduct, agencies should communicate with citizens and the media swiftly, openly, and neutrally, respecting areas where the law requires confidentiality. One way to promote neutrality is to ensure that agencies and their members do not release background information on involved parties. While a great deal of information is often publicly available, this information should not be proactively distributed by law enforcement

Sunday, March 1, 2015

The Effect of Malpractice Reform on Emergency Department Care — NEJM

"Defensive medicine" that drives up the costs of medical care is a battle cry of "tort reformers".  It has had a big effect.  Even President Obama has endorsed "medical malpractice reform" as a cost-saver. Like other "serious people" he has been untroubled by the lack of evidence - because it is "common sense" (which is what we think before we study).  Made shamelessly, the argument is odd. It is, essentially, that doctors violate their oath to do no harm. They spend other peoples money and subject their patients to great expense and inconvenience for no good medical reason.  Just out of fear that if they don't do it they could be subjected to a groundless claim.

It is really just interest group bargaining - physicians hoping to reduce their insurance premiums - at the expense of their patients.  They did that in three states in the single-party democracy of the south.  The Rand Corporation studied it.  The result: no change in medical practice - but patients injured through carelessness had no remedy. - gwc

The Effect of Malpractice Reform on Emergency Department Care — NEJM

Daniel A. Waxman, M.D., Ph.D., Michael D. Greenberg, J.D., Ph.D., M. Susan Ridgely, J.D., Arthur L. Kellermann, M.D., M.P.H., and Paul Heaton, Ph.D.
N Engl J Med 2014; 371:1518-1525October 16, 2014DOI: 10.1056/NEJM

Many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending. Emergency physicians practice in an information-poor, resource-rich environment that may lend itself to costly defensive practice. Three states, Texas (in 2003), Georgia (in 2005), and South Carolina (in 2005), enacted legislation that changed the malpractice standard for emergency care to gross negligence. We investigated whether these substantial reforms changed practice.

Using a 5% random sample of Medicare fee-for-service beneficiaries, we identified all emergency department visits to hospitals in the three reform states and in neighboring (control) states from 1997 through 2011. Using a quasi-experimental design, we compared patient-level outcomes, before and after legislation, in reform states and control states. We controlled for characteristics of the patients, time-invariant hospital characteristics, and temporal trends. Outcomes were policy-attributable changes in the use of computed tomography (CT) or magnetic resonance imaging (MRI), per-visit emergency department charges, and the rate of hospital admissions.

For eight of the nine state–outcome combinations tested, no policy-attributable reduction in the intensity of care was detected. We found no reduction in the rates of CT or MRI utilization or hospital admission in any of the three reform states and no reduction in charges in Texas or South Carolina. In Georgia, reform was associated with a 3.6% reduction (95% confidence interval, 0.9 to 6.2) in per-visit emergency department charges.

Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.

(Funded by the Veterans Affairs Office of Academic Affiliations and others.)"

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DePuy Round 2 Hip Implant Settlement Explained // Childers, Schlueter & Smith, LLC

Plaintiffs lawyers explain to the new proposed settlement. - gwc
DePuy Hip Implant - Round 2 Settlement Explained
by Richard Schlueter //Childers, Schlueter & Smith, LLC

On Friday, February 20, 2015, DePuy/ Johnson & Johnson agreed to pay approximately $420 million more to resolve approximately 1400 additional DePuy ASR lawsuits. The order came from the Court extending the settlement offer to Plaintiffs who had revision surgery after August 31, 2013 up through January 31, 2015.  hip
From the beginning of this litigation, almost five years ago, our goal at Childers, Schlueter & Smith has been to prosecute cases aggressively until DePuy accepted responsibility for its actions and offered to settle viable cases, or until viable cases were tried before a jury.  While we are pleased that DePuy has proposed a second round of settlements now for certain plaintiffs.
There are a number of very important issues we want all ASR patients to be aware of given this recent proposal:
1)      This is not a blanket, one-size-fits-all settlement proposal. DePuy’s proposal set outs specific terms which determine the individual settlement amounts for each person’s case (see below). As we have always maintained, all ASR cases are different.  Because of the differences in each case, the proposed settlement amounts for all claimants will be different.
2)      The settlement proposal is just that – a proposal – which you are not required to accept.  Individual claimants in any case can accept or reject any settlement offer.  At CSS, we evaluate each case and determine, as precisely as possible, the amount of compensation you would likely receive under the proposed settlement and whether it makes sense to continue under the program. For most it does, for a few select others it may not.
DePuy ASRWhat are the terms of the settlement?
DePuy is offering the proposed settlement to citizens and residents of the United State who: 1) had an ASR hip implanted in the U.S.: and 2) whose ASR hip was revised between August 31, 2013 and January 31, 2015. DePuy is only making the settlement proposal to patients who received an ASR hip. The proposal does not cover any other hip implant device manufactured by DePuy.
DePuy’s settlement proposal lists a number of factors which will determine the value of a settlement offer, such as whether you suffered a loss of income, whether you required another surgery after the revision of the ASR hip, your age, smoking history, and/or obesity.  As noted above, we are in the process of determining how these factors apply to our client’s cases right now and can do the same on new cases if you act fast.
Payment of Liens
If you choose to accept DePuy’s proposed settlement, they have also agreed to pay any liens that may be asserted by your medical providers or health insurance companies.  Liens are monies owed to repay your insurance company for the funds they paid relating to your ASR hip implant, or monies still owed to your medical providers for services they provided that relate to your ASR hip implant.  Ordinarily, such liens would be paid by you out of the settlement proceeds you receive.  In light of the fact that you have had revision surgery, the liens associated with your case could be significant.  We believe DePuy’s agreement to pay your liens is a benefit to anyone who chooses to accept DePuy’s proposed settlement.
Broadspire benefits
The Broadspire benefits that have been provided so far have been of great benefit to most of our ASR clients that are uninsured.  These benefits have been limited. In anticipation of the program potentially stopping, we urge you to provide us with documentation of all out of pocket expenses and lost wages that you have not already provided us, so we can submit them to Broadspire for processing if they were incurred prior to January 31, 2015.
What is the timeframe to decide to accept or reject DePuy’s proposed settlement?
To be eligible, you must register your case with DePuy by the stated deadline. Following that registration period, there will be a final enrollment date for all eligible claims where all the applicable medical records and settlement materials have to be properly submitted. We are currently waiting on the announcement of the enrollment deadline date. Once we have that date and the documents are made available, we will prepare settlement packets for our clients review and signature. We also have the capacity to do this on any new claims submitted to our office in the very near future.
DePuy’s walk away option
DePuy will have a walk away option. The percentage of enrollment is still to be announced. If enrollment is less than the target percentage, DePuy can choose to walk away and not pay you any settlement at this time.  DePuy can also choose, however, to continue with the settlement if less than the target percentage of people accept it, but they do not have to do so.  If less than target percentage of the eligible people agrees to the proposed settlement, DePuy must decide whether to continue with or withdraw the proposal by a date that will be published shortly.
Our next steps
As noted above, the law firm of Childers, Schlueter & Smith continues to investigate and take on new DePuy ASR clients that need assistance with their potential claims. We are evaluating all cases under the terms of the proposed settlement, and we will take all steps needed to ensure your rights are protected. As time is limited, you must act now if you want to put our firm’s experience to work for you. As always, if you have any questions, please can contact our office for more information on the Round 2 DePuy ASR Hip Implant Settlement. All calls are confidential and all initial consultations are free of charge

Study Questions Potential Healthcare Savings Gained by Tort Reform | Atlanta Legal Examiner | Atlanta Georgia Personal Injury Lawyer

Study Questions Potential Healthcare Savings Gained by Tort Reform | Atlanta Legal Examiner | Atlanta Georgia Personal Injury Lawyer:

by M.Brandon Smith // Childers, Schlueter & Smith, LLC

"Although many proponents of tort reform believe that fear of malpractice lawsuits prompts physicians to order unnecessary tests and indirectly drives up medical costs, a Rand Corporation study recently published in the New England Journal of Medicine found otherwise.

The study analyzed the experience of emergency room doctors in Georgia, South Carolina, and Texas after the states raised the burden of proof for malpractice lawsuits to gross negligence for emergency care, basically requiring that doctors knowingly provide improper care to a patient to be found liable. 

 Rand researchers analyzed more than three million Medicare claims for three metrics – how often ER physicians ordered advanced imaging studies, the rate of inpatient admissions following ER visits, and total charges for an ER visit, and compared the data to that of neighboring states with lower bars for malpractice lawsuits. The researchers found that only Georgia exhibited a small drop in charges per patient, and nothing else really changed, according to a Washington Post report. 

 Defensive Medicine

According to the Congressional Office of Technology Assessment (OTA), defensive medicine “occurs when doctors order tests, procedures, or visits, or avoid high-risk patients or procedures, primarily (but not necessarily or solely) to reduce their exposure to malpractice liability.” 

 Actions may be considered defensive medicine even if performed for legitimate reasons, such as a belief in a procedure’s effectiveness, a desire to reduce medical uncertainty, or a financial incentive, as long as the primary motive is to avoid malpractice risk. The motive need not be conscious, and some medical practices become so routine that physicians are oblivious to the fact that liability concerns originally motivated their use."

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Thursday, February 26, 2015

In Memory of Daniel — Reviving Research to Prevent Gun Violence — NEJM

In Memory of Daniel — Reviving Research to Prevent Gun Violence — NEJM

by Chana A. Sacks, M.D.  (Massachusetts General Hospital)

At the moment that Daniel was shot, I had just fallen asleep after a night on call in the cardiac intensive care unit. My attending during that rotation was Robert Gerszten, who offered us insights from the burgeoning field of metabolomics and cardiovascular disease: that alterations in levels of blood metabolites may precede chronic illnesses by decades — knowledge that might someday enable us to identify people at risk for diseases years before the first clinical manifestation. Contemplating the possibilities of this concept, caring for critically sick patents, and studying the vast cardiology literature, I found my mind filled with a complex amalgam of thoughts that often made post-call sleep restless.
Meanwhile, 150 miles away, the day had started like any Friday. My cousin Mark walked his oldest son to the bus stop at the end of the driveway. James always left for school first, and on that December day, it was still dark. At the sound of flip-flops on asphalt, Mark and James turned to see 7-year-old Daniel bounding toward them in his pajamas; he had woken up early and sprinted outside to see his older brother off to school. Then Daniel and Mark snuggled on the couch, played foosball in the basement and then “Jingle Bells” on the piano. At 8:30, it was Daniel's turn to trek down the driveway. Mark remembers holding Daniel's little hand for the whole walk to the yellow school bus that took his youngest son to Sandy Hook Elementary School.
The next week is a blur...

Wednesday, February 25, 2015

The Great Society Speech = Lyndon Johnson - 1964

President Johnson signing the Civil Rights Act
by Matthew Dallek // George Washington University

The Speech That Launched the Great Society

The Speech at University of Michigan, May 22, 1964

President Lyndon B. Johnson declared that the government, working with a citizenry motivated to improve community life, had to make cities more livable, protect the natural environment, and provide education that gave all citizens regardless of race or class the chance to rise in society and find meaning in life.
The speech was a spiritual invocation as much as a political statement to fulfill Jefferson’s promise in the Declaration of Independence to give all the right to “pursuit of happiness.”
“The Great Society,” Johnson declared, “…demands an end to poverty and racial injustice,” but it also had to be “a place where every child can find knowledge to enrich his mind and enlarge his talent…where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community.”

The Great Society, he added, meant making the nation’s cities places where “future generations can come together, not only to live, but to live the good life.” It was a place where “America the beautiful” and “our natural splendor” were protected from the pollution that threatened to destroy “the water we drink, the food we eat, the very air we breath.”

While Johnson’s 1964 speech dwelled on the problems of the cities, the environment, and education, the constellation of programs that came to be known as the Great Society addressed a much wider agenda. They included not only Medicare, Medicaid and civil rights legislation but also the creation of a department of Housing and Urban Development and the National Endowment for the Arts and the Humanities, to name just a few.
“The liberal assumption that rising wealth more widely distributed would liberate Americans for the ‘pursuit of happiness’ had proven…inadequate,” [principal drafter Richard]  Goodwin wrote of the genesis of the speech. The address, he argued, represented “the only possible direction for liberating, progressive change”.

Tuesday, February 24, 2015

House Bill Seeks to Amend Illinois' Premises Liability Act | The National Law Review

House Bill Seeks to Amend Illinois' Premises Liability Act | The National Law Review: "llinois Representative Jack D. Franks (D - McHenry County) has introduced a Bill (HB 1441) that would amend the Illinois Premises Liability Act to eliminate a court's ability to decide that a landowner does not owe a duty to protect those coming on his/her premises against conditions that are open and obvious.

The Illinois Premises Liability Act states (in part) that "The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." A longstanding exception to this duty under Illinois common law (and in other jurisdictions nationwide) is that "a party who owns or controls land is not required to foresee and protect against an injury if the potentially dangerous condition is open and obvious." Rexroad v. City of Springfield, 207 Ill. 2nd 33, 44 (2003). This is known as the "open and obvious rule."

It is also well-established case law that the question of whether or not a duty exists is a question of law for the court to decide. Forsythe v. Clark USA, Inc., 224 Ill. 2nd 404, 411 (1991).

There are exceptions to the "open and obvious rule," however, Representative Franks' Bill seeks to limit the application of the rule by excluding it as something a court can consider it determining whether or not a landowner owes an entrant a duty by adding the following language to the Premises Liability Act:

"Whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, under Section 2-116 if the Code if Civil Procedure and shall not be considered with respect to any other issues of law or fact, including duty." (Emphasis added).

The proposed amendment would expose landowners to additional liability for open and obvious conditions, and make cases with these circumstances more difficult to defend"

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Shire, Maker of Binge-Eating Drug Vyvanse, First Marketed the Disease -

Monica Seles, retired tennis star, now shilling for Shire
The big drug companies are market makers - first they help create a diagnosis, then they sell the cure.   Not that there is no such thing as binge eating.  A recently acquired box of Girl Scout cookies (chocolate thin mints) had a very brief half-life in my hands.  - gwc

Shire, Maker of Binge-Eating Drug Vyvanse, First Marketed the Disease -

by Katie  Thomas

 "As Shire introduces an ambitious campaign to promote Vyvanse but also to raise awareness about the disorder, some are saying the company is going too far to market a drug, a type of amphetamine, that is classified by the federal government as having a high potential for abuse. Shire’s track record is adding to the worry: The company helped put another once-stigmatized condition — attention deficit hyperactivity disorder — on the medical map and made billions of dollars from the sale of drugs, like Vyvanse and Adderall, to treat it. In recent years, federal officials have cited the company for inappropriately marketing Vyvanse and other A.D.H.D. drugs."

The retired tennis player Monica Seles spent this month making the rounds of television talk shows, appearing on everything from “Good Morning America” to “The Dr. Oz Show” to share her personal struggle with binge eating.

“It took a while until I felt comfortable talking about it,” she said in a People magazine interview, explaining that she secretly devoured food for years while she was a professional athlete. “That’s one of the reasons I decided to do this campaign: to raise awareness that binge eating is a real medical condition.”

But that is not the only reason. Ms. Seles is a paid spokeswoman for Shire, which late last month won approval to market its top-selling drug, Vyvanse, to treat binge-eating disorder, a condition that once existed in the shadow of better-known disorders like anorexia and bulimia but was officially recognized as its own disorder in 2013 by the American Psychiatric Association.

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Monday, February 23, 2015

J&J to Pay as Much as $420 Million More in ASR Hip Accord - Bloomberg Business

J&J to Pay as Much as $420 Million More in ASR Hip Accord - Bloomberg Business:

by Jef Feeley

(Bloomberg) -- Johnson & Johnson agreed to pay as much as $420 million more to resolve lawsuits over recalled hip implants that were excluded in 2013 from a $2.5 billion settlement of claims that the devices were defective and caused metal poisoning in patients.
J&J’s DePuy unit agreed to push back the deadline for recipients of the company’s ASR implants to file settlement claims to Jan. 31 of this year, according to a filing Friday in federal court in Toledo, Ohio. That will allow as many as 1,400 patients who’ve had ASR hips removed since 2013 to seek about $300,000 each in compensation under the original 2013 accord.
“By extending the benefits of the previously announced U.S. Settlement Program to an additional group of ASR patients, we are again providing fair compensation” to artificial hip recipients “without the delay and uncertainty of protracted litigation,” Mindy Tinsley, a DePuy spokeswoman, said in an e-mail Friday.
“J&J has seen the handwriting on the wall about these hip cases and they’ve figured it out: It’s better to settle all of these suits and get this debacle behind them,” said Erik Gordon, a professor at the University of Michigan’s business and law schools who teaches about class-action settlements.

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