Archive for June 23, 2006

A Frivolous Lawsuit

June 23, 2006

The Alabama Supreme Court decided an interesting medical malpractice lawsuit last week. Here are the facts:

On August 17, 1998, Dr. Boles removed a cancerous part of Burl Herman Parris's lung at Northeast Alabama Regional Medical Center (“RMC”) in Anniston. The surgery itself went well, but Burl stayed at RMC while he recuperated. Dr. Boles continued to treat Burl while Burl was a patient at RMC.

At 4:30 a.m. on September 7, 1998, a nurse telephoned Dr. Boles at his home. She informed him that Burl had “coded,” that his respiration and pulse were weak, and that he was nonresponsive. Dr. Boles then spoke to an emergency physician who told him that Burl was anemic and was suffering from gastro-intestinal bleeding. Dr. Boles did not go to the hospital in response to these conversations. At trial, Dr. Boles admitted that this type of bleeding was a potentially fatal surgical problem.

The nurse telephoned Dr. Boles again at 6:30 a.m. to tell him that Burl's respiration, pulse, and blood pressure were at dangerous levels. Dr. Boles did not go to the hospital, and he did not order that Burl be admitted to the intensive-care unit at RMC.

At 8:15 a.m., Dr. Boles received a third telephone call, informing him that other doctors were working to save Burl's life. Dr. Boles testified that after the third call he went to the hospital, where he “look[ed] at the code.” However, no one remembered having seen him at the hospital, and no hospital record reflects that he was present. Burl died later that morning.

Randall Parris, the administrator of Burl's estate, sued Dr. Boles; Southeastern Surgical Specialists, Inc., described in the appellants' brief as “Dr. Boles'[s] professional association”; and RMC, alleging wrongful death. The case went to trial in September 2003. At trial, Dr. Boles admitted that if he had gone to the hospital when he received the second telephone call at 6:30 a.m., “I probably could have saved [Burl's] life, quite possibly saved his life.” Randall Parris offered expert testimony indicating that Burl's life could have been saved had something been done before approximately 7:30 a.m. Dr. Boles also admitted that he lived only five minutes from RMC, that he was unoccupied on the morning of Burl's death, and that he deliberately chose not to return to the hospital.

The plaintiff won this litigation lottery; the run away jury awarded him 1.3 million dollars.  

The defendants did not challenge the amount. I do not know why. Surely this sickly old man’s life was not worth 1.3 million dollars. What did the doctor do that was so wrong? You can’t expect doctors to drop everything and run to the hospital just because some patient might need some help. Worst of all, we all have to pay higher insurance premiums and now foreign auto manufacturers won’t build plants in Alabama. This verdict hurts everyone. Because of one selfish dead person, we all suffer.  

Anyway, the defendants did appeal, arguing that the jury should have apportioned the award according to the level of the individual defendant’s fault. Normally, when the award is one of punitive damages, as this one was, that what the jury must do. However, Alabama’s statutes explicitly and specifically except from that rule cases, like this one, of wrongful death. Undeterred by the law, the defendants argued that 

the Court should disregard the plain meaning of the statute because it “conflicts with the purpose of punitive damages” and is “disharmonious with public policy.”  

In an opinion written by Chief Justice Nabers, the court properly rejected the call to legislate from the bench and said: “Uh, no.”  

Now then, if we want to penalize parties for filing frivolous lawsuits, who should pay whose attorney’s fees in this case?

Medical Marijuana

June 23, 2006

Got this in an e-mail and wanted to pass it along: 

Next week, Congress will vote on the Hinchey-Rorbacher amendment. This amendment would prevent the DEA from wasting taxpayer dollars by undermining state medical marijuana laws. Essentially, this amendment creates protection in states that have medical marijuana laws and stops the DEA from arresting cancer and AIDS patients who use marijuana to alleviate their pain. There’s a fact sheet enclosed here.

There are two highly important Congresspeople in Alabama who we need to vote “yes” on this bill: Rep. Artur Davis and Rep. Bud Cramer. Can any of your contacts in Alabama get to Rep. Artur Davis and Rep. Bud Cramer, and ask them to vote “yes”? We need them to vote for the Hinchey-Rohrabacher medical marijuana amendment when it comes up next week.

Before you rush to call your representative, I want you to be fully informed on the issue. So here is the text of the bill as it was presented last year:

None of the funds made available in this Act to the Department of Justice may be used to prevent the States of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont, or Washington from implementing State laws authorizing the use of medical marijuana in those States.

Here is Rep. Maurice Hinchey's (D-NY) arguments on the same bill when it was proposed last year:

This amendment would prohibit funds for the Department of Justice from being used to prevent patients in States that have medical marijuana laws from following those laws.

Over the past 9 years, 10 States have adopted laws which allow the use of marijuana for medicinal purposes: Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont, and Washington. They legalized the use of marijuana to relieve the intense pain that accompanies debilitating diseases, including AIDS, cancer, multiple sclerosis, and glaucoma. With the exceptions of Hawaii and Vermont, all of those laws were adopted by referendum, passed by the people.

Thousands of patients have testified, explained, and acknowledged that marijuana helps relieve symptoms, such as nausea, pain, and loss of appetite associated with serious illnesses. These people have found that marijuana is the only remedy that improves their quality of life. Yet the DEA has been targeting these people for arrest and sending them to jail. This needs to stop.

It is unconscionable that we in Congress could possibly presume to tell a patient that he or she cannot use the only medication that has proven to combat the pain and symptoms associated with a devastating illness. How can we tell very sick people that they cannot have the drug that could save their lives simply because of a narrow ideology and bias against that drug in this Congress?

A 1999 Institute of Medicine report for the National Academy of Sciences described the legitimate use of medical marijuana. It stated: “Until a nonsmoked rapid-onset cannabinoid drug delivery system becomes available, we acknowledge that there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana. Today there is no such alternative available.''

This amendment would affect only the States that allow the use of medical marijuana by preventing the Justice Department from arresting, prosecuting, suing, or otherwise discouraging doctors and patients in those States from following the laws of those States to relieve their physical injuries and conditions.

In the Supreme Court's majority opinion last week, Justice John Paul Stevens wrote that the issue can be addressed “through the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.'' With this amendment, we intend to use the powers granted us in the Constitution and reaffirmed by the Supreme Court last week to do just that.

Opponents of this amendment have tried to misrepresent it. This amendment does not encourage the recreational use of marijuana. It does not encourage drug use in children. It does not legalize marijuana. It would give relief to people suffering from horrific diseases and allow their doctors to decide which drugs will work best to do so. Organizations including the Nation's largest medical organization, the 2.7 million member American Nurses Association, the American Public Health Association, the American Academy of Family Physicians, and the New York State Medical Society, among others, have publicly endorsed the medical use of marijuana.

Our amendment is about compassion, in allowing patients the simple right of using the most effective medicine possible. Taxpayers' dollars should not be spent on sending seriously or terminally ill patients to jail. A vote for this amendment is a vote for States rights and for compassion. Ten States have decided to use medical marijuana in their laws. The Federal Government should not stand in their way.

Because I am fair and balanced, here is Rep. John Peterson (R-PA) opposing last year's bill:

I rise to oppose this amendment. Marijuana is not a harmless drug. The National Institute on Drug Abuse, the American Medical Association and other science-based research institutes have documented the substantial risks of using marijuana. The FDA, on the other hand, has already approved Marinol, which contains THC, a derivative of the active chemical in marijuana, totally undermining claims that there is any need for medical marijuana.

Granting for the sake of argument that marijuana is harmful, why does that mean it ought to be banned under all circumstances? All drugs are harmful if used improperly, yet we still let doctoros prescribe them. Should we ban oxycontin because of Rush Limbaugh?

If passed, this amendment would open the door for drug dealers to use medical marijuana exemptions as cover for their growing and selling operations.

And even if that occurred, you could still prosecute them. The bill only protects the prescription and use of medical marijuana. If that is what they are growing it for, there is no crime. If they are growing it for something else, you can go get 'em, cowboy.

Up until recently, no adequate testing had been done in this country on the devastating effects of marijuana use. If only the young people of America knew of the study that just has been released recently that marijuana use curtails the development of the brain. We have very young people in this country using marijuana, and marijuana curtails the growth of our brain, and our brain is not mature until we are 25 years of age. Anything we do that encourages young people to use marijuana will have a devastating impact on their mental capacity.

Note the absence of any citation to the 'study.' And, again, the bill simply prevents the federal government from overriding the clearly expressed will of the people in the states that have protected medical marijuana. The bill does not make marijuana use generally legal. It protects doctors and patients in states that have allowed those doctors to prescribe marijuana for those suffering patients.

I speak with a little experience on this. I have some friends who grew up when marijuana was the hot issue, and some of the brightest young people I knew became somewhat dull and have remained that way all of their life because the recent study proves that marijuana use curtails the growth and development of the brain.

Does this explain Jeff Sessions? Ha Ha. Anyway, note how Peterson thinks his own personal experience should trump the scientific evidence presented in favor of medical marijuana, and how he thinks his own beliefs should trump the duly enacted laws of the states who allow medical marijuana.

I have never had a physician tell me that it was needed in his portfolio to treat medical diseases and pain. I have never had a physician, and I have been in the health care field, in the legislative process, for 20 some years.

Once again, Peterson doesn't need studies, he has his own experience on which to rely. Great, but how are the rest of us supposed to know, absent research and documentation, whether what you say you have experienced is generally true, or an anomaly? Laws need to be based on verifiable facts, not the reminiscences of particular representatives.

Medical marijuana is not something that is needed in this country. It is a drug that stops the development of the brains in our youth, and it should not become legal in any way, in my view.

What relationship does sentence number two have to sentence number one? Why does the alleged fact that a drug can cause harm if ABUSED mean it should not be PROPERLY used? If the mere fact that a drug is potentially harmful meant the drug was illegal for all purposes, we would have no medicines at all. The bill does not open the door to abuse. It allows a doctor to prescribe it to a patient. This is a well regulated activity. It is not a free for all. Peterson is either stupid or he is intentionally misrepresenting the issue.

So there you have it, honest reporting from a trusted source. Now make up your own minds.


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