Legal Speak : General Information

What You Don't Know

Tony DeWitt — Thu, 02 Dec 2010 17:53:00 GMT

It is amazing what you do not know. You probably do not know that zombies from outer space are eating [insert male politician's name here] brain. You probably didn't realize that [insert name of female political figure here] is actually performing voodoo animal sacrifices at midnight in the basement of her home. Aliens are among us because Area 54 houses alien spacecraft. Folger's and Maxwell House conspired to created sunrise in order to sell coffee. And the end of the world is set for December 21, 2012 (be sure to bring a date).

What's the point of all this silliness? Just this: not everything you receive in an email, nor everything you see on a website, nor everything that appears on television news is necessarily true. Parts of it may be true, but that's not the way to bet. Just like we tell people that if it seems too good to be true it probably is not, so too is it that if it seems too bad to be true, it likely isn't.

There is an email being circulated, one of many I'm sure, that claims that Barack Obama wanted to substitute the song I'd Like To Teach The World To Sing for the national anthem. Written in that breathless "you're not going to believe this" style, the email weaves fact (Mr. Obama was asked about the flag) with fiction (that he suggested adopting the song above as the national anthem). A quick trip to www.snopes.com solved the mystery. The email is a hoax, but those forwarding it are often convinced it is absolutely the gospel truth.

Ever since the *** used propaganda to great effect in marshaling Germany toward war in 1938, those who study communications have seen that mixing a few gallons of bald lies with a few drops of easily verified truth is an effective way to convince large bodies of people to act in a certain way. One of the most fundamental motivators is fear. If you can make a group of people scared of some other group, you can use that fear to control them. This is how Hitler used propaganda in the thirties, and the same tactics are at work today. All negative political ads rely on the idea that making you scared of the other guy has more effect than making you happy about the opponent. Both parties use the tactics.

Somewhere out there someone is mixing up these manure-filled emails and serving them up, and getting paid handsomely for it. It's wrong, and it's evil, but it's a lot like fishing. A fisherman can troll the best bait in the world through the water, but if the fish doesn't bite, the fish is safe. In an information age it is far too easy to check the bona fides of an internet rumor. All it takes is a visit to one of the many fact-checking websites out there. Information and education are power, but laziness is what liars and con men count on when deceiving people.

Forewarned is forearmed. If you read something on the internet and you think "wait a minute now..." that's your first clue. If it sounds too crazy to be real, it's probably really crazy.

Health Care Reform

Tony DeWitt — Tue, 30 Jun 2009 13:00:00 GMT

The trumpets have already sounded, and the fight is on over health care. The warriors are riding toward the battlefield in DC, and they are armed with their powerpoint slides, their position papers, and of course, their checkbooks.

On the one side we have the insurance companies who are not eager to compete for health care customers, and on the other, we have the consumers who are tired of having a wallet-ectomy every time they get sick. Add into the mix more than 90 million uninsured (or underinsured) citizens, and what you have is a recipe for the most jumbled, complex, mess of government regulation and oversight ever in the health care system. Is that good? Of course not!

The problem with the American political system is that every interest group, from the National Fisheries Institute (a trade association "committed to assisting its members to succeed in the global seafood marketplace") to the National Association of Catholic Diocesan *** and Gay Ministries has a lobbyist (and usually more than one) spreading its message and its cash around in large quantities on Capitol Hill. It has been said that if lobbyists could not buy meals for congressmen and their aides, 60 percent or more of the restaurants in the District of Columbia would have to close.

While there are more than a few congressman who won't sell out their political views for a five-star dinner, there are even more who will at least bring these interests groups into the tent and get them involved in the negotiations for the kind of massive government legislation that health care reform is going to have to be.

There are two problems with this approach. Given the amount of clout and the amount of influence the long-established lobbyists for very influential companies and industries have, the ability to craft a universal solution for healthcare gets hijacked by what kinds of changes the automakers need in such a health care plan. Similarly, large organizations of hospitals not only worry from the standpoint of who pays the bills, they recognize that they will be facing the same burdens with providing the same kinds of care for their employees that the national plan is going to involve. With so many voices screaming to be heard on the details, the broad outlines of the reform plan are as fluid as hot olive oil, and likely just as dangerous. And, if everyone gets a hand into the process, you can bet that the process will take so long that nothing will ever happen.

If we are to get health reform, this is what must happen. A small commission of individuals must be developed. The commission would ideally include one representative from a large manufacturing industry (like the automakers), and one representative small businesses who currently pay for the majority of health care in the country. Congress could then name up to three additional representatives to represent the poor and uninsured, and at least one person who's only job was to look out for working people who pay way too much under the current system, and would like a system they can both understand and use. Included in the commission would need to be representatives from the hospitals and the health device makers, as well as one representative from the Pharmaceutical Industry, and one physician. If the number of players could be kept to nine, that would be workable. A non-voting member who is a federal judge would keep the commission on schedule and offer legal analysis if requested.

These commission members would have no support staff, and there would be one secretary whose job would be to record the meetings and draft up the recommendations. The commission would meet in an undisclosed location without telephones. Food would be provided, but the commission would be given a short two-week deadline within which to complete its work. No cell phones, no faxes, no emails and no communications with the outside world until the commission came up with a plan that would do the following:

1. Allow the currently uninsured access to quality health care at a rate that was affordable for a working family or single-mother.

2. Allow employees with a current health care plan they liked to keep it; and if the plan was not one of their liking, offer them similar options at different price points. (For example, a 21 year old might not want to have an option for long-term-care insurance, whereas a 58 year old might want such an option and be willing to pay for it.

3. Be fair to all payors in that people who had abused their bodies with drugs, alcohol, or other substances would be required to pay more than those who had not. Similarly, older Americans should pay more for coverage than the young, because they consume more health care.

4. Impose cost reductions and cost savings on the health care industry to reign in price inflation that always outstrips the national average.

5. Leave individual physician autonomy and decision-making unencumbered, but provide incentives for physicians who follow national practice models and who have fewer claims for medical negligence.

Without cutting off the access to the commission details will leak to the press, and those details would cause industry and other lobbyists to pressure commission members to oppose or support propositions that might negatively affect a particular industry, but would be ultimately positive for the country.

It is too bad that this approach isn't going to be advocated or tried, because it could work. The mess that will be made in Washington DC when health care reform takes center stage will more likely resemble the making of sausage than legislation.

Making the Law Work

Tony DeWitt — Fri, 26 Sep 2008 15:45:00 GMT

It is often said, erroneously, that ignorance of the law is no excuse. The fact is, ignorance is frequently an excuse, and juries determine if it's a good one. Societies regulate conduct by passing laws. Sometimes the law is a little slow in catching up with technology. So when computers became tools for hackers and criminals, laws were passed to forbid their use for unlawful means.

Next came "cyber-bullying" - a term coined by the media after a St. Louis area woman reportedly bullied a teen into committing suicide. Even though it will ultimately fail the test of the First Amendment, states and the federal government rushed to regulate this kind of conduct under the theory that it is somehow better to place restrictions on free speech than to encourage teenagers to end their lives. While I question the wisdom of this kind of lawmaking (i.e., passing a law because it makes legislators feel good), it was certainly within their right to do it. Someone will undoubtedly challenge it, and the Supreme Court tends to interpret the First Amendment broadly. The law is unlikely to punish wrongdoers but likely to keep otherwise nice people from acting like complete jerks.

This brings us to the case of Lori Drew, the St. Louis woman who federal prosecutors claim bullied Megan Meier, then 13, into suicide. Drew impersonated a teenage boy on MySpace, and apparently convinced Meier that there were problems with her worth as a human being. Don't misunderstand. I do not condone Drew's behavior. She must live with herself for the rest of her life knowing that the child died as a result of the mean things she said.

The US Attorney's office in St. Louis, run by Catherine Hanaway, is one of the most aggressive in the country at prosecuting federal crimes. The prosecutors in that office, many of whom I know, wouldn't hesitate a minute to file a case if indeed there was a case to be filed. But because they are great lawyers sworn to uphold the law, and because Ms. Hanaway prefers to enforce, rather than make, the law, that office declined to press charges because Drew didn't break the law.

Enter the federal prosecutors from Los Angeles, where MySpace is located. MySpace took aim at Drew under the Computer Fraud and Abuse Act (CFAA). CFAA was written to address hackers and others who violated protected business computers, hacking into account information, stealing identities, and otherwise engaging in electronic pillaging. It contains loose language that defines a "protected computer system" very loosely.

When Drew obtained a MySpace identity she was confronted with the "terms of service" for the MySpace system. One thing the terms forbid is using someone else's identity. If you do, MySpace can kick you off the service. Incredibly, the prosecutors in Los Angeles charged Drew with a federal crime under CFAA for violating the terms of service of MySpace by lying and impersonating the boy who Meier thought didn't like her. Under the government's theory, violating the terms of service of an online community like MySpace converts a computer user's activities from lawful to criminally unlawful.

Why should this worry nurses who might never use MySpace? Because many health care facilities are going toward paperless records, and that means nurses and administrators will have log-ins and passwords and will be setting rules for access to the computer. Suppose a night nurse who just went off shift calls back to the facility and says "I forgot to chart Mr. Smith's Lasix." Being a kind soul, a day shift nurse enters the nurses password and user ID, charts the drug, and the night shift nurse avoids coming to the facility.

Under the government's theory, because the day shift nurse "impersonated" the other user, and because this is likely not permitted by the facility's rules, the day shift nurse would be subject to indictment even though she had no criminal intent because she exceeded her authorized access and did so knowing that she was using someone else's identification.

Drew is well represented. Her counsel have filed numerous motions to dismiss. They have been joined by the Electronic Freedom Foundation, a watchdog group formed to protect constitutional rights in an electronic age. Recent media reports suggest that the judge is carefully considering these motions.

While the prosecutors may likely think it wrong that Drew did what she did, they should be sticking to enforcing the laws that are written, and not trying to reverse engineer existing laws to criminalize behavior that is not criminal.

Brother, Can You Spare a Click?

Tony DeWitt — Tue, 23 Sep 2008 15:40:00 GMT

There is a fabulous folktale about the gossip who, seeking atonement, goes to the village religious leader and begs to be forgiven for spreading gossip. The religious leader tells him to go home, open a pillow, and scatter the feathers to the wind, and return the next day. The gossip does so, and returns seeking forgiveness. The religious teacher tells him to go pick up all the feathers and he'll be forgiven. The gestalt of the story is that a story once repeated takes on a new life, and it is not possible to get the message to all who've heard it that the message was wrong.

Political candidates and parties have figured this out. That's why they often repeat things that are frequently untrue. Too many people believe what they want to believe, and are sure that if the story ran on the news, it must be true. Telling lies about people causes them injury, and it is for this purpose the law of libel and slander exist. Libel is a written false statement that injures a person's reputation; slander is a spoken false statement.

If you went through my email box and did a random sample of my correspondents you would find emails from a variety of individuals all of whom would tell you, if you asked them, that they were decent, upright, God-fearing people who don't gossip and who would never spread a lie or a false statement about others. And yet, if you looked through my email archives, you'd find at one time or another that at least a dozen of them have sent me one or more of the top ten urban myths or legends as a true story.

In recent months you may have seen the following stories circulate on email:

A lawyer bought expensive cigars, insured them, smoked them and collected the insurance money only to be charged with arson.
Barack Obama was sworn into office on the Quran.
Starbucks slighted the troops in Iraq.
Barack Obama has been endorsed for President by the Ku Klux Klan.
Sarah Palin banned books from the Wasilla, Alaska, public library.
Microsoft will send you $1,000 if you forward enough emails.
Sarah Palin posed for a photo holding a rifle wearing a flag bikini.
Bill Cosby is a write-in candidate for president.
The new dollar coins were designed to omit the phrase "in God we Trust."

Every one of those stories is false. Each has been carefully debunked by the folks at Snopes. In spite of this, people get these in their email, and without thinking, they forward them on to the next 30 people on their email list. They don't intend to spread those feathers in the wind, and they don't intend to injure companies like Starbucks or Target, but they do. Companies like these are not brick buildings; they a organizations with people who depend on them for jobs.

The folks at Snopes are constantly updating their database with facts about these kind of stories. They can tell you that AOL and Microsoft are not going to send you $1,000 for forwarding an email to every human being on the planet. They can tell you that criminals are not really using burundanga-soaked business cards to knock out victims. In the event you didn't know it, burundanga is an extract of the datura plant that contains certain organic compounds that might have an effect on the nervous system.

Just like you should never be suckered by a story of an investment that sounds too good to be true (like a 50% return in two months), you shouldn't believe something just because it came to you in an email. And if the email contains the words "I checked this out and it's for real," that is almost always a tip off that the story is false.

So, the next time someone sends you an email with an outrageous claim about a presidential candidate or that forwarding an email will send you children to college for free, take a moment, go to www.snopes.com, and save yourself the hassle of forwarding the message. Instead, reply to the sender and include the link to the snopes site. You'd be surprised how much less stupid email you get. Join with me. Together we can stop stupid emails.

The Unsung Heroes

Tony DeWitt — Tue, 29 Apr 2008 17:16:00 GMT

This week I would like to take a moment to say hello to some people who do not know me or the local legal professionals where they work. These are the thousands of facility operators, managers, administrators, nurses and clinicians who operate nursing facilities that not only comply with the law, but go beyond the minimum standards imposed by the local state and federal regulations. They are the unsung heroes you don't see on the local news.

"Man bites dog" - that makes news. "Facility reduces falls by 90%" - that usually doesn't make news. And that's an oversight that should be corrected.

Readers of this blog find numerous citations to the hundreds of bad things that go on in nursing homes. Residents are sexually assaulted, have their belongings stolen, and their bank accounts emptied. These stories make the news. These stories draw the attention of the media because they are so bad. So when someone talks to me about why I write about these terrible events I usually say it is because those are the stories that provide the best lessons in the law. Sure, it may rub some salt into a wound, but the illustrations are helpful to those who want to do the right thing. It is the truth of what I do.

But recently the shoe, so to speak, has been placed back on the other foot. I have recently been forced to watch a group of trial attorneys in Mississippi plead guilty to bribing a judge. It is a sad affair, a noteworthy trial attorney who forced big tobacco to the settlement table brought down by the stupid actions of the lawyer he hired. The media makes it sound as though judicial bribery is a common occurrence, and also that it only occurs with plaintiff's lawyers. I can assure you it is both rare and an equal opportunity offender when it occurs.

No one spends three years getting a law degree only to throw it out the window by trying to bribe a judge. But with the media, perception is often reality, and so the reality for lawyers in the recent days has been that we are assumed to be driven by financial gain, motivated by greed, assume that ethics is an optional course in law school, and are generally bent on bringing down civilization as we know it.

Yet, for every lawyer that is accused of wrongdoing, there are hundreds more in the bar who are working to achieve social justice. Like the nurses and administrators who do their best for facility residents, these lawyers spend their own time and often their own money trying to help people with legal problems.

On a regular basis, lawyers donate their time to people who cannot pay. Recently, a gentlemen had trouble with a collection agency who had sued him on a debt that was eight years old. The debt was barred by the statute of limitations, but the lawyers on the other side had left these dates off the petition so as to get a default judgment by the Court. The young man was a state employee making barely more than minimum wage. He did not have the $2000 retainer our firm requires on routine matters. So I undertook his cause without charge. I did that because it was the right thing to do, and I am far from alone in doing that.

In Cole County, Missouri alone, every year lawyers for the Legal Care project donate thousands of hours to help the indigent. Every day members of the legal profession do charitable work by representing civic associations (ballet companies, theatre groups, alumni associations, etc.) for free.

But, how would the general public know that? Unless they were members of the associations, or were married to members of the bar, they'd be uninformed because most of the time lawyers do not talk about what they do for free.

So, it occurred to me that I was guilty, with respect to nursing facilities, of always talking about the bad facilities that give bad care, and not the fine facilities that provide better patient care than anyone else in the region. And there may be some terrific lessons to be learned from those stories too.

You see, I know you're out there. I would love to hear about the facilities that exceed the standards from the people doing that exceptional work. And I will reflect their stories here. Contact me off line at aldewitt@aldewitt.com and I will pass along those who are out there leading the pack.

Code of Ethics

Tony DeWitt — Tue, 15 Apr 2008 14:29:00 GMT

One recent trend among trial lawyers is to cross-examine witnesses on the stand with their association's code of ethics. The ANA has a very complete code of ethics, and it is doubtful that many nurses know it as well as they should. The problem with not knowing the code of ethics is that at some point every nurse has to make tough choices, and without a good basis in the ethics of the profession, that's hard to do.

Provision one of the ANA code says:

"The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems."

As a trial attorney, that lofty sounding position gives me a lot to work with where there has been a suggestion that a nurse has been less than compassionate, less than respectfull, or was restricted by considerations of a person's economic status or personal hygiene. The following excerpt is from a deposition of a nurse in a nursing home case. The nursing home was eventually sold and the company that owned it put out of business. The CEO and the Chairman of the Board were both sent to federal prison. So what follows is awful. But it illustrates how the code of ethics can be used to illustrate just how bad a nurse's failure was.

The nurse being deposed is the director of nurses. We will not use her name because she was honest, because she was in a horrible situation, and because she should not be held up to ridicule. For the same reason, I won't identify the facility. The violations occurred ten years ago, and the facility has changed hands. Hopefully the nurse has found other employment.

12 Q. (By Mr. ___) I want to recite for you a

13 portion of the American Nurses Association code of

14 ethics and ask you whether you agree with it, okay?

15 A. Certainly.

16 Q. "The nurse's primary commitment is to the

17 patient, whether an individual, family, group or

18 community." Would you agree with that statement?

19 A. Repeat it for me.

20 Q. "The nurse's primary commitment is to the

21 patient, whether an individual, family, group or

22 community." Would you agree with that statement?

23 A. I agree that the nurse's primary

24 responsibility is to the patient. I don't know how the

25 second part of the sentence applies, but --

1 Q. Fair enough. You would agree then that the

2 nurse's primary commitment is to the patient, fair?

3 A. Yes.

4 Q. Let me ask you about this ethical statement.

5 "A fundamental principle that underlies all nursing

6 practice is respect for the inherent worth, dignity and

7 human rights of every individual. Nurses take into

8 account the individual needs and values of all persons

9 in all professional relationships." Do you agree with

10 that ethical statement?

11 A. Yeah.

***

18 Q. And do you agree with it?

19 A. I think so, yeah.

20 Q. Okay. You said you think so. I just want to

21 give you an opportunity --

22 A. Read it again. Let me listen.

23 Q. Let me just read the first portion of it, and

24 see if you agree with that statement. "A fundamental

25 principle that underlies all nursing practice is respect

1 or the inherent worth, dignity and human rights of every

2 individual." Do you agree with that statement?

3 A. Yes.

***

18 Q. And that there is a recognition in the code

19 of state regulations and in the code of federal

20 regulations that governs your contact, that each person

21 is entitled to that dignity and respect and the highest

22 degree of care practicable. Do you agree with that?

23 A. Yes.

24 Q. And that's the obligation that you have as a

25 nurse with charge over those residents to make sure that

1 that is carried out; isn't that true?

2 A. Yes.

3 Q. Let me ask you this question. Does

4 permitting a patient to lie in their own urine for up to

5 eight hours in any way show respect for the inherent

6 worth, dignity and human rights of an individual?

7 A. No.

8 Q. Does permitting a patient to lie in their own

9 *** and letting them get the *** on their hands and

10 in their hair in any way show respect for the inherent

11 worth, dignity and human rights of that individual?

12 A. Repeat that for me.

13 Q. Does permitting a patient to lie in their own

14 *** and permitting them get the *** on their hands

15 and in their hair in any way show respect for the

16 inherent worth, dignity and human rights of an

17 individual?

18 A. Within the confines of a nursing home, it

19 can't always be prevented.

20 Q. Does permitting a patient to lie in their

21 *** for hours at a time in any way show respect for

22 that person's dignity?

23 A. No. I think we discussed that already.

24 Q. Well, we discussed it in the context of

25 someone laying in their own urine for hours, and now I'm

1 asking you if you permit a patient to lie in their own

2 *** for hours at a time, that would not show respect

3 for their dignity or worth; would it?

4 A. No, it is not.

5 Q. And that is something that is preventable; is

6 it not?

7 A. Yes, to lay there for hours is preventable.

There were numerous other awful examples of patient neglect that were recited. The nurse testified honestly that the facility and its nurses did not live up to the ethical codes of nursing.

The impact of such testimony on a jury is difficult to understate. The nurse admits that she agrees that human dignity is important, but that it can't always be maintained. Her attempt to separate out skilled nursing facilities by saying "it can't always be prevented" merely opened the door for the lawyer who pointed out the things that could be prevented.

Most nursing home cases are not as serious and the conditions are not as hellish. But imagine how these questions could be used in a deposition where the allegation is a failure to monitor the patient for falls? "Would failing to answer a call light for thirty minutes for a patient with a history of falls in any way show respect for the inherent human dignity...."

If it's been a while since you've looked at your professional code of ethics and responsibilities imposed by your state's statutes, it is a good idea to take a look at that today and do so. If it has been a while since there was an inservice on ethics, there is no time like the present to hold that inservice. Ethical questions are interesting, stimulate discussion, and often lead to quality improvement in well-run organizations. Those pay dividends in the long term.

The Best Hospital in America

Tony DeWitt — Thu, 03 Apr 2008 15:26:00 GMT

In a few weeks Advance for Respiratory Care Practitioners, the magazine that I started off with in 1988, will be celebrating its 20^th year. This made me think back to the times in my life when I was a caregiver and the many different places I worked, including:

Mary Lanning Memorial Hospital, Hastings, NE
Kirksville Osteopathic Hospital, Kirskville, MO
St. Mary's Hospital, West Palm Beach, FL
Blessing Hospital, Quincy, IL
Mt. Sinai Hospital, Hartford, CT
St. Charles Hospital, Oregon, OH; and
Vencor Hospital, St. Louis, MO

While I learned many things (both good and bad) at many of these places, two of them are special because they were the places that formed the core of my beliefs about what is both good and bad in the health care professions.

St. Mary's Hospital in West Palm Beach, Florida, was located minutes away from Riviera Beach, a popular spot for tourists and a place where thousands of "snow birds" sought respite from the cold climate up north. The hospital was a 350 bed facility and it was run by a religious order that cared a great deal about meeting its calling to provide care for the suffering and disenfranchised.

It was there, as a therapist, that I practiced my very best respiratory care as a clinician. I worked with neonates, attended deliveries, went on transports, worked in the emergency room, and hung out for long stretches in the ICU and CCU. At one time a fellow therapist, a lovely young lady named Victoria Parks, taught me that it was easy to make iced tea in a graduated cylinder, and we frequently walked through the ICU drinking our tea from the same type of receptacles that nurses emptied their Foley bags into.

We made sure never to leave one in a patient's room, however. We were probably too cute for our own good, but even today that memory makes me smile. But it wasn't all fun and games: Vickie and I worked a lot of 18 hour days in that ICU, and did a lot of good with a lot of people. St. Marys' was the place that made me proud to be a therapist, and I wept like a child when the day came to move on.

Blessing Hospital, in Quincy Illinois, was the hospital I went to after St. Marys, and it was where I learned to be a manager. I had expert tutelage from Harry Wolin, my vice president, and eager assistance from my second-in-command, Rebecca Bean. What made Blessing such a great place to work (other than the two people just mentioned) was its focus on what was good for the patient - not just in terms of medicine. If you wanted to raise the cost for a procedure, you had to justify it, and it had to be approved by a board committee before being implemented.

The board at the hospital constantly sought to keep health care costs down - a far cry from what many boards do today. Blessing was the best hospital I ever worked for, and probably at that time the best hospital in America. It owed that to a man named Larry Swearingen, who was the CEO and who ran the organization like it was personal to him. It was never just a job to Larry. He cared, and everyone who worked for him knew it.

So here's the legal angle to all of this. Great organizations, that are well managed and encourage the best in performance from their clinicians and staff, these are the facilities that are rarely sued, and even more rarely, will a jury render a verdict against them. This is because juries like people who try to do their best for the patient, even if they might accidentally make an error now and then. I always say the best insurance policy is a good patient relationship, and Blessing proved that over and over again.

On the plaintiff side of the aisle we say that unless the jury likes your client, they won't help your client. The same is true on the other side. If the jury doesn't dislike the defendant, they are less apt to make a finding against them. When an organization cultivates a culture of excellence like St. Mary's, or a culture of community trust, like Blessing, the payoff is never visible in the balance sheet as a separate line item. But it is very much visible in the bottom line.

The Technicality

Tony DeWitt — Thu, 20 Mar 2008 17:17:00 GMT

"I just don't understand how someone can be a murderer, and a court can just let them out of jail on a technicality."

My friend who made that statement had seen media reports about a young woman whose murder conviction was overturned "on a technicality."

Like medical shows that demonstrate patients converting from asystole to sinus rhythm after defibrillation, the television media is often more interested in telling a story than understanding the legal basis for appellate action. Because it is important to understand the process, I thought I might devote this post to explaining "technicalities." Frequently when a state or federal appellate court overturns a conviction on appeal, the media says that the conviction was "overturned on a technicality."

The inference is that some hyper-technical application of law resulted in an injustice and allowed a guilty person to walk free. In most cases, when an appellate court overturns a conviction, it normally means only that the government will have to try its case a second time. It usually does not result in the release from confinement of the person who appealed. In many instances, in order to avoid the expense of a new trial, and in recognition of the exceptionally long times it takes to get an appellate opinion, state's attorneys will simply enter into an agreement with the offender to allow them to plead guilty to a lesser offense and get out of jail with "time served." Often when the media report these events they characterize them as a miscarriage of justice. But a study of appellate opinions would suggest that in most cases they are anything but.

Take the case of Christy Weatherford Cole, a young woman from southern Missouri who was convicted of second degree murder under what lawyers call the "felony murder rule." Under the rule, a conviction for a felony that leads to the death of another is all it takes to lock the offender up for life, even if the offender had nothing to do with the death other than being involved with some other crime. The rule was meant to encompass the situation where two burglars enter a residence to steal, are surprised by the owner, and the owner is shot by one of the offenders. The offender who shot the owner will face charges for murder in the first degree. The other offender is charged with the owner's murder (second degree) under the felony murder rule. In this situation but for the criminal act of the two conspirators, there would be no death. It seems fair to charge murder under these circumstances.

Unfortunately the application of the rule is often extended well beyond its original intent, and often with palpable injustice. Certainly this is the case in Ms. Cole's case where the felony was child endangerment, and the murder was committed by the woman's abusive boyfriend. The Court described the events on the day at issue as follows:

In March 2003, [boyfriend] was living with defendant and her three young sons. Defendant's three-year-old son, William, argued with his mother about having a drink of soda pop before eating his meal. Defendant did not want William to consume liquids before eating. She was concerned that he would not eat if he consumed liquid before his meal. [Boyfriend] was angry about William arguing with defendant. William was stomping his feet. This aggravated [Boyfriend] more. He told defendant to send William to him. [Boyfriend] undertook to discipline William by picking him up and laying him across his lap on his back. [Boyfriend] had his hands around William's neck. The back of William's head was pushed against a table next to the chair where [Boyfriend] was sitting. [Boyfriend] threw William across the room. William went limp. Defendant put clothes on William and she and [Boyfriend] took William to the ambulance shed in Gainesville, Missouri. William was then taken to the Gainesville Clinic where he was examined by medical personnel. Following examination, William was transported by helicopter to a Springfield, Missouri, hospital where he was diagnosed as severely neurologically depressed. A CT scan revealed retinal bleeding and subdural and subarachoid bleeding consistent with blunt force trauma. On April 1, 2003, William's injuries were determined to be irreparable. Care was terminated that day. William was pronounced dead late that afternoon.

State of Missouri v. Christy Weatherford Cole (the boyfriends name has been redacted)

Ms. Cole was a single mother with a boyfriend. Like many such relationships in families with altered family dynamics, the boyfriend was easily irritated by children, and frequently violent in disciplining the children. Cole appears to have been easily manipulated by the boyfriend. Although there was no evidence that the boyfriend ever previously caused serious injury to children, in this case he threw a small child across the room resulting in the child's death. He then prevailed on Cole to help him cover up his wrongful acts.

Cole was charged with the felony of endangering a child by placing him in contact with the boyfriend. The state charged a felony charge which required them to prove that Cole placed the child in danger "knowingly." The second count of the indictment charged felony murder based on the charge of child endangerment. In other words, by convicting the woman of child endangerment, the jury was also convicting her of murder.

The big issue at trial was whether Cole placed the child in danger knowingly, or whether she was merely criminally negligent. If she was acting with knowledge that exposing the child to the boyfriend would result in the child's injury or death, she could be convicted of the felony. If she was merely criminally negligent, she could only be convicted of a misdemeanor which would not invoke the felony murder rule. The evidence at trial was equivocal on a variety of issues, but certainly on the issue of whether the young woman acted with knowing intent reasonable jurors could have disagreed.

Cole asked for a "lesser included offense" instruction which would have let the jury consider the lesser misdemeanor charge rather than the felony charge. The trial judge refused to instruct, and the jury convicted the young woman.

This young woman was in an abusive relationship, and had been told by the boyfriend to lie to authorities when explaining what happened to the child. There was no prior evidence of abuse. There was very little from which a jury could conclude that Cole acted with anything other than negligence. In reversing, the Missouri Court of Appeals said:

Although there was evidence that [boyfriend] had struck William on past occasions in an effort at discipline, there was other evidence that it was not defendant's practice to place William in direct contact with [boyfriend] for discipline. Whether defendant's act of placing William in a position to be in direct contact with [boyfriend] demonstrated an actual risk as opposed to a potential risk to the child is a fact question the jury should have been permitted to decide. Had the jury been instructed on endangering the welfare of a child in the second degree as a lesser included offense, it could have determined whether defendant's actions knowingly subjected William to an actual risk of serious harm or whether her actions were criminally negligent so as to present a potential risk to William. Manifest injustice or miscarriage of justice occurred by the jury not having the opportunity to analyze the evidence in that regard. Point III is granted. The conviction of endangering the welfare of a child in the first degree is reversed. Because defendant's conviction of murder in the second degree pursuant to Section 565.021.1(1) is dependent on a supporting conviction of a felony, that conviction is reversed.

State of Missouri v. Christy Weatherford Cole

While it may sound somewhat technical to distinguish between an intent of "knowing" and an intent of criminal negligence, that is exactly the purpose of appellate courts, and the Court here reached the right result. The loss of a child is a tragedy that transcends mere bereavement. This woman not only lost her child, she lost her freedom when the evidence established at most that she made a bad decision on a bad day. She may have been guilty of bad taste in boyfriends, but she surely never meant for harm to come to her child.

Appellate courts are in place to prevent the justice system from acting out of emotion and a desire for retribution. When trial courts make mistakes, the appellate courts correct them, not by setting the offender free, but rather, by making the courts give the state another chance to prove guilt beyond a reasonable doubt under terms that are fair. An appellate court requiring the state to prove its case under fair terms, and give the accused the benefit of the presumption of innocence is not a technicality. It is a safeguard built into the system to protect innocent persons.

That's one technicality we should all remember.

Depositions 201

Tony DeWitt — Tue, 04 Mar 2008 15:58:00 GMT

It is said that “assume” is the only word that makes an “ass” out of “u” and “me.” In a slightly more earthy comment, a drill sergeant of mine suggested that the word was the mother of all mistakes. Regardless of which way you remember it, remember that assume is not one of those things you want to do as a clinician.

Assumptions get clinicians in trouble in the hospital, and they also cause problems in court.

In dealing with patients, clinicians are taught to check assumptions. If you assume that an obtunded patient is unresponsive due to narcotics, you check that assumption by giving Narcan and by follow up. If you assume that a low pulse oximetry value is due to a breathing problem, you evaluate the chest. You only get into trouble with assumptions when you fail to test them.

A good example can be found in the current lawsuit brought by John Ritter’s wife (Amy Yasbeck) against the hospital where Ritter was treated when he was brought in with chest pain. In Ritter’s case, his chest pain was considered to be of cardiac origin, and a chest film was not obtained. Had a chest film been obtained it would have shown an enlarged aorta. t was an aortic dissection, and not a heart attack, that claimed Ritter’s life. But, because a heart attack is far more common, and because Ritter was not stabilizing, the doctors gave aspirin and anticoagulants – both of which would have been correct for a heart attack patient – and both of which accelerated the aortic dissection.

Another way you can get into trouble in a deposition is to assume that you know more medicine or physiology than the person deposing you. Most attorneys learn the medicine backwards and forwards before they attempt to depose a nurse, physician, or other clinician. While they may not have the same experience in the area of medicine that you as the clinician do, they will know the anatomy, the physiology and the pathophysiology of every issue or disease process in the case.

Recently, in a case, the opposing counsel sought to qualify its nurse witness as an expert on a particular drug. Counsel asked if the nurse was familiar with the drug, had used it, knew its side effects, and similar questions. When it was my time to examine the witness I walked up and placed a yellow legal pad in front of the witness and asked him to draw the molecular formula. He couldn’t. He couldn’t tell me how the drug was chemically described. He could not tell me what the “three compartment model” was with regard to the drug. All of these questions came right off the package insert, and a more seasoned witness would have simply said “we never use any of that stuff when we use the drug.” But instead, he got rattled and admitted he was no expert on the drug. So, never assume that the lawyer who examines you is going to give you softballs to hit.

Another assumption that leads to trouble is to assume that the case is about what you thing is important, instead of what the lawyer thinks is important. To you, the issue may well be the patient’s hypoxemia. But to the lawyer, the issues might be the failure to do assessments at particular times.

Before a lawyer comes to depose you, he has met with someone in your profession and he has prepared a list of questions based on what that expert wants to know. If you have access to medical records or other documents to prepare for the deposition, it is a good idea to review them and try to remember as much as you can about what happened. The lawyer who will be deposing you has put a lot of time and effort into the process, and he or she will be ready.

The Appalachian Nurses Strike

Tony DeWitt — Wed, 28 Nov 2007 15:26:00 GMT

I have always considered myself an individualist. I do not believe that the human condition is improved by permitting other people to make life-altering decisions for you. If a doctor recommends surgery, I've always felt it was my decision to make, not my doctor's. Similarly, if the boss advises me to commit a federal crime and falsify a record "to make things look good," I preferred getting fired to going to jail. This desire to make my own decisions, to keep my own counsel on matters of importance, has always served me well.

So, reports regarding the nursing strike in Appalachia gives me pause in large part because I can see both sides of the conflict, and I wonder, now that I am removed from health care, how I would handle the situation facing the nurses there.

According to media reports, the key issues in the strike are patient care and staffing. That's what the nurses say. The hospital says that the nurses don't want to take hikes in their health insurance premiums, don't want to have to settle for time and a half instead of double-time for holidays, and that the issues are economic and greed-driven.

As is often the case, the statements by union officials and the statements by hospital officials make it sound as though the two groups were talking about different universes rather than the same strike in a small rural town. The union is trying to be the nurses' advocate, and the nurses are trying to be patient's advocates. The nurses say that staffing is dangerously thin, and that patient care suffers when the staff is insufficient. The hospital says that a mandatory 2.5 hours of overtime a week is just "not that bad," and patient care never suffers. To be blunt, the nurses are far more likely to know whether patient care is suffering than the hospital spokesman who likely doesn't know a band-aid from a steri-strip.

That said, I need to state my bias up front: I do not think unions are good for health care. I believe that smaller service units (like physical therapy, respiratory therapy, dietary, radiology, and similar ancillary services) wind up under the thumb of the nurses union because what the 800 pound gorilla wants, the 800 pound gorilla usually gets. As a result, innovation in health care, new service ventures, and changes in how procedures are done - many of which would benefit the patient - are often bogged down and defeated because the biggest hospital union doesn't want to play ball.

Also, unions tend to be driven and managed by people who are more interested in perpetuating the union than necessarily doing good for the workers. The impact of the unions in the automotive industry, who pushed that industry into near extinction in the 1980s, are one good example.

But, I also understand that it would be easier to negotiate compassion from the leader of North Korea than it would be to get a pay raise from many hospital administrators. Hospitals in isolated market areas (like Appalachia) may be able to command an undue economic influence on wages because in most cases they are the biggest non-factory employer in the region. hey can simply refuse to pay more. No one wants to leave home to get a better job, and in the end people often take what they can get. While the hospital might lose one or two nurses a month for economic reasons, it is likely not to see a major interruption in service because in a non-unionized hospital there is no credible threat of an interruption of patient care. Wages remain stagnant.

But where there is a union, there is economic clout to rival that of the hospital. To get what it wants, the union takes a strike vote. If there are 500 nurses in the union, and 251 vote in favor of the strike, it doesn't matter if there are 249 who voted against it. The union speaks with one voice, and whether they wanted to or not, hundreds of nurses walk off the job.

So here's the question: if there was a problem with staffing before the strike, when all the nurses were working at the bedside, what is the effect on patient care of having 500 nurses walking a picket line instead of tending to patients. The hospital can claim that the nurses really do not care about patients because if they did they'd be on the job. The nurses shoot back that if the hospital paid better, they'd be on the job. And the circle goes around and around. The arguments escalate, producing more heat than light. And federal mediators are called in to try and get a resolution so people can get safe health care in their community.

When a union issues a strike vote, the majority rules. That means that persons of conscience who feel compelled to be at the bedside, and who do what they do because they value their profession and the work, are compelled to stay out of work even though their heart tells them to go in. As noted in media reports, nurses who have crossed the picket line in Appalachia have had their names added to a "wall of shame" and some have suffered tire-slashings and damage to their homes and property. This is why professionals should not join unions.

Tough tactics and intimidation against "scabs" harkens back to the 1930s and the days of labor unrest in this country when unions were needed in many factories to prevent management from abusing the work force. Solidarity with the group was most important because without it, the union could not force change. Times change. Economic conditions change. The role of unions change. Tactics should change with it.

In the 21^st century, when patient care is at issue and lives on the line, intimidation and similar nonsense makes health care workers into little more than armed thugs without conscience. If I did not believe that a strike was the right thing to do, I would cross the picket line, and I would hold my head up high. Following your conscience shouldn't be something you pay a price for. It should not cost you friends. It should not cost you respect. It should earn you gratitude for thinking about the patient first. I salute those workers who crossed the picket line not because I endorse the position of the hospital, but because I believe that as nurses they are acting in accord with the ethical dictates of their profession, and should be accorded respect for that.

As far as the hospital goes, it should negotiate in good faith and remember that as a charitable institution, charity truly begins at home.