Читать книгу Who's Killing the Doctors? - Alex Swift - Страница 7

That evening Barbara was home right on the dot by 6:30, with just enough time to get herself into comfortable clothes and have dinner ready for both by 7. After a cup of chicken consommé, she had ready a deep dish of boiled-and-drained green beans with potatoes, lightly dressed with salt, pepper, a generous squirt of olive oil and a simple third plate of lean sautéed-and-caramelized ham (‘Canadian Bacon’?) with a circular thick slice of pineapple; for desert she placed at the center of the table a cluster of seedless red grapes, and as they talked about the day each had had in their respective quarters, she brought two flutes of ‘mosto,’ the celebrated Mediterranean non-alcoholic white grape drink that in bars, with a slice of lemon, often accompanies tapas… if/when you are done with the booze! [This writer, by the way, hears that ‘mosto’ makes too a great mix drink with vodka!]

Both were in a chit-chat mood, first Ken going to his main point succinctly about ‘the annoying case’ that was over, thank-god, himself cutting the jurors deliberations short when he talked the two lawyers into settling, nearly forcing them to do so; “Good for my reputation avoiding repercussions and bad tails.”

“And isn’t that great?”

“Well, yes! But it has left me with a bad aftertaste!”

“Why?” asked his wife.

“Because of the figure agreed-to of 1/2 a million for a case where the woman should have got nothing!… and where her lawyer is a scum-back politician and a known ambulance chaser!… And because the defense, the insurance company agreed to settle too easy, too high. They should not have given her a cent. Perhaps, just for face-saving, a $100k. I’m amazed they gave her 5 times that much! This is highway robbery even if it’s only 1/2 of their initial demand!”

“But of course,” Barbara agreed, “insurance companies for personal injury cases I hear they don’t mind paying. And making huge payments does not bankrupt them. The more they pay, the more money they make by just raising the insured’s premiums a pinch. And the top brass in the company gets a raise! The more they pay, the larger the business! Great for all. All at the consumer’s expense. Sickening!”

“And the lawyers make it all happen for them!”

“You’ve hated those lawyers for a long time, Ken.”

“Not just them. The whole tort and liability system in this country is corrupt and nobody is doing anything about it. The nearly two million lawyers out there are very happy with the riches they bleed out of the system – even if it is horrible for the rest; the crooks, the claimants, their lawyers, get big downfalls. Some blame the judges and jurors for the awards, but it is the money itself. Where there is money to be made, someone will milk it. And lawyers are the big facilitators. And we owe to lawyers too in D.C. our Nasty National Debt! Most in Congress are lawyers!…”

“It sounds as if the system has no solution or cure,” Barbara said.

“No, it doesn’t. And public and political law stinks just as much; It would take a revolution, a whole new system, new legislation and so many changes to the law codes at State and Federal levels, that only a new Constitution would do it. But you know how likely that is to happen in our life times through peaceful means. In general conservatives, republicans, ‘patriots,’ love the Constitution; for them it is untouchable -like the 2nd Amendment!-, it is The Law! It’s another sacred Bible!…”

“Yes, I’ve seen,” said Barbara, “how the ultimate argument for the enforcers, the cops on the road, is to tell you in your face that: ‘It is the Law.’ And of course lawyers have concocted all the laws. Perhaps some major changes (reducing the number of lawyers, closing most or all law schools!) could be tried down the road in smaller countries. Or in the US, only in small confines like some cities or counties -or ONE state!- throwing out all their laws and starting from scratch… Which won’t happen!”

“Not bad, Barbara, not bad! Perhaps you may have something there… But to have less Law schools or to graduate less students -of any profession- you know how unlikely that is these days when colleges and universities have more programs, more schools, more applicants and more graduates for revenue and business, not because society needs this or that number or type of professionals…”

“Actually” she said, “a doctor i’ve heard of, a prolific writer who happens to live in this state, not too far from here, a Dr…… I can't remember his real name… or his pen name… did write about all that in his last books and blasting against lawyers; but they were not blockbusters. I did have a copy, but I gave it to your sister Marie…

Both munched their ham steak and pineapple in silence for a while.

“And from your side, Barb, the medical world, any news?” he asked.

“Nothing major of today’s news, but plenty, continuously, as you in your judicial position, also in personal dissatisfaction of the docs and the public with the new Obama Care. They hate the costs and profits of pharmaceutical products, and the upper and middle class hate social ‘entitlements’ but most love getting something-for-nothing, anything, everything, especially medical stuff, without paying.”

“And on matters of liability?

“Yes, Ken. All is nasty. You often see the liability issues in your court. Medical malpractice stuff and the horrible oversight of licenses and misconduct by the States’ Health and Education Departments, by OPC: The Office of Professional Conduct, a corrupt and hideous state agency empowered by awful state laws, by legislation aimed only at sacking, wiping out professionals, ruining lives. It is equivalent to legal murder of many, especially doctors; all made ‘legal’ by state legislators, all lawyers.

“Remember, Ken?” We watched together last week, on PBS, Stanley Cramer’s Judgment at Nuremberg. Spencer Tracy, as Presiding Judge Haywood, in his closing comments before sentencing the four villain Nazi judges to prison-for-life, tells them that existing directives from above (called Laws, a Government!) do not justify the individual judges for committing acts, for issuing rulings, against decency, humanity and morality, against basic human rights.

“And now in the US the similarities of how many innocent professionals are also literally destroyed have not been acknowledged; it is all ignored and forgotten! In the same film, the German defense lawyer played by Maximillian Schell, blames ‘others’ -besides Germany- the US, Russia and even the Vatican, for committing too, ‘legal’ atrocities against humanity. Indeed our Constitution, a legislation, the Law, existing nasty but ‘legal’ state laws, justify ‘officially’ evil policies carried out by Government agencies, by its lawyers, to destroy precious, dear professional lives, often innocent. The law enforcers thus enjoy a free hand to kill, wipe out lives…”

Both paused.

“You are really bitter and disgusted with our system, aren’t you?” He asked.

“I think as much as you! I wish I could…” After another pause, she went on:

“By the way, Ken, I have a friend, a woman child neurologist that I don’t think you’ve met yet, being shaken up by our State Health Department. I want to ask your opinion about what I know of her case. She fears for her license, though she does not think she’s done anything wrong -just a disliked report she wrote on a tough kid- but perhaps she has been targeted by state officials for her leaning towards ‘our genes’ as the cause of children’s learning and behavior problems -and she is often against the famous ‘Early Intervention’- and they are after her head. Perhaps you may have some ideas or concrete steps for her to take to shake them off her back. Any advice I can pass along?”

“Those cases are very tough once the State gets their eyes on them. The Department, OPC, is run more by lawyers than doctors. And they have nearly total control of each case rendering the accused professionals, AND the targeted doctor’s own lawyer, totally powerless. They can’t extricate themselves without a stain in their record at a minimum, and often worse, they end up losing their license.”

“Why?”

“Because they have managed to talk their lawyer-colleagues in the state legislature into drafting state laws that are nearly unassailable, meant to call the process ‘legal,’ to facilitate the sacking of the accused with total disregard for their civil rights!… They are like those Nazi judges you just mentioned, with total power to sack, regardless of any exculpatory evidence. Like by getting access to ALL the records of the accused -to build their case against him or her- even when there are no criminal charges, no real professional blunder, illegal or dangerous conduct and they have no proof of anything; they are masters at suppressing evidence. They disregard witnesses and experts who favor the accused. Does ‘transparency’ exist for them? Transparency? What is that!”

“But that is unconstitutional, immoral,” said Barbara, “Isn’t it?”

“Yes, it is,” her husband went on, “and since their ways to hang the doc are written into the state law, they appear perfectly O.K., all’s perfectly legal; the ‘morality’ of such laws does not even count and if the accused brings the case to a law suit, no state judge touches them, not even the Court of Appeals.”

“Why again?”

“Because the state discipline department -through the dozens of lawyers in the State Attorney General’s office, often a band of heartless hoodlums- manages to easily dismiss every case, just about always, in front of a single judge, without jurors, just on paper, wrapping the dismissal in technicalities that hit the accused and his counsel like an unassailable cement wall.”

“And the federal courts?”

“Neither the federal ‘District’ courts nor the federal appeals ‘Circuit’ courts touch the subject either. They dismiss these cases on paper, without a trial, often bringing up sovereignty, executive privilege of the state -‘eminent domain’ they call it- on which the federal government and its courts supposedly does not interfere with the state.”

“Even if the accused is denied civil rights?”

“That’s right. Even if those state laws are totally against the most basic civil rights -and they are-, the federal courts often look the other way.”

“So the doctor targeted and under investigation, the accused, has no chance with the state courts! Is that it?”

“Yes,” her husband the judge admitted.

“Even in your court?”

“That’s right! In such cases we judges, even if sympathetic to the doctor-in-trouble, find ourselves with our hands tied. Like judge Janning in Nuremberg! So most of my colleagues recuse themselves from taking medical misconduct cases to possibly side against the State, our employer!… I probably would too…”

“But if my friend sues the state, would she have a chance of getting her case at least heard? Wouldn’t YOU let her present her case, hear her out and look at all her evidence or lack of it?”

“Well, like most of my colleagues, I don’t pick the cases. They are assigned to me by our local Chief Judge of the State Supreme Court -here it would be supposedly judge Amalfi- though in reality his court clerks make the assignments for him. And you know that if I happen to know about the case before hand that I could easily recuse myself from taking it.”

“Unfortunately, said Barbara, though my friend has contemplated dropping her lawyer and going public to the press and then sue the State Health Department, she realizes that the public is not sympathetic to ‘rich docs in trouble’ in the first place; that cases like hers make good gossip, and they and the press often take the side of the accuser as the underdog. They always presume that the accused doctor ’must have done something wrong,’ that ‘the state does not go after you for nothing!”…

“And if they end up really staining her record, (‘who cares about a disgraced doc!’), nobody will lift a finger for her,” admitted her husband Ken, “not her colleagues or her med society or the big societies like the AMA or the ACLU or even the Media. And as far as fighting her case in court, she probably will have to contend first with ‘internal hearings’ held -like Internal Affairs in the police force- in front of a Board presided by one of their sacking lawyers, internally called ‘Administrative Law Judges’ to impress and cow the accused. And remember, Barbara, that all this is very legal now as manufactured by the state legislators, by more lawyers!… Sad!”

“It is not just sad, it is unbelievable. If I were a judge I’d find it intolerable!…” said his wife Barbara.

“And I hear,” Ken went on, “that feisty doctors, for simply not admitting having done something wrong, for refusing to cooperate, for fighting them, find themselves into worse trouble as they, at the State Health Department, are really vindictive and retaliate with vengeance against ‘difficult’ docs towards their total destruction.”

After doing the dishes and pans at the sink while Ken at her side was drying them, both had a small glass of sweet Sherry as she went on:

“My friend has told me that those state disciplinarians have what they call ‘A First Count of Misconduct’ against her on account of that disputed report of hers and that they are now demanding from her to have access to ALL the records of her office. She is fighting them on that, but they’ve given her a deadline. If she does not comply, that THAT will be considered a ‘Second Count’ and THAT will be automatically grounds to pull her license… So, what she can do to keep them out of her office?”

“She can slow them down: She can present a Motion, an injunction, stating that they have no grounds for such search of her office records. She will then have to defend her Motion in front of a state judge like myself hoping that HE will stop them or at least limit their search. Their lawyer will show the judge why they need it.”

“But even if their search is limited to just a few records, they will find, nit picking, grounds to impeach her! They for sure find flaws in random records of anybody, even if they are from a saint. Nobody’s perfect!”

“Yes, for sure they’ll find, or invent, the flaws they need! Unfortunately, the hearing Judge, whoever he is, will consider that ‘First Count of Misconduct’ a VALID reason for the search of more records.”

“And she won’t be able to show the judge with her own experts that such ‘First Count’ is baloney, a piece of crap?”

“Probably not. The judge will recuse himself from contemplating all her evidence to determine if she is guilty or not; he will tell her that he is there just to allow the search or not; not to condemn or exonerate her on the more general issue of misconduct, even if such search is only to facilitate such. He won’t even make room for a full trial. Perhaps, if he feels bad for her, to show understanding, he may limit their search to just a few cases or dates, ignoring the sure, eventual bad outcome of such search. Allowing only a small search will annoy OPC and its employees, especially those ‘Administrative Law judges.’ But by ordering her to submit ‘just a handful of charts’ he will extricate himself from risking his job and his position as a state judge.”

“So at this point, with such bleak picture, what should she do?”

“If she does not want to let the state wolves search all or part of her records, she has to file a Motion for an injunction right away. Yes, tomorrow. That will give her some time, a couple of months. OPC’s lawyers will have to reply -within 30 days- with a Motion of their own, to dismiss hers. After that, the court clerk will give her a date in court -in another 30 days or so- to defend her Motion in front of a single judge, whoever is assigned to it. Then she can get extra time by requesting a delay. And while this is happening, the Wolves of OPC won’t be able to touch her records.”

“But eventually, even if she delays things a few months, she’ll have to comply?”

“Yes. She could get further delays after the judge’s decision, most likely unfavorable, by appealing it to the State Court of Appeals, but that will only give her a little extra time, and to gain each delay she will have the headache and work of the paper work and trips to the clerk -if she does it herself- or the mounting costs of each step if she uses a lawyer, which most doctors do. State judges won’t just ‘cancel’ OPC’s request to search of her records. In most cases, only the lawyers are in front of the judge; and often, just the papers. At some point she will have to comply. So if she files that Motion now she will have approximately 8 months or so before she has to allow the search of at least a bunch of records.”

“That’s nasty!”

“My friendly advice for her right now is -if OPC has nailed on her that ‘First Count of Misconduct’ and already wants her records- that she moves away ASAP finding a job in another state (or country) before they come up (or manufacture!) a ‘Second Count.’ I hope her family, social and economic situation lets her do it and that she can abandon everything she has here. I see no other way. And she should hurry to do it while her record is still officially clean. As it stands, ‘One Count of Misconduct’ won’t be on her public record, it won’t stain her irreparably, so she has to move right away, now!”

“Wow! That’s drastic! And such advice of yours -of moving away- is not given by most defense lawyers, that I am aware of!” said Barbara. Why not?”

“Because malpractice and misconduct lawyers do not want their active cases to just move and disappear so they lose too soon important clientele who generally pay. And if she does not disappear from this state, I am 99% sure that within a year or so they’ll pull her license. Then, once that happens, she won’t be able to switch or get her license in any other state – or country. Other countries medical boards and societies these days also check your professional background and contact the disciplinarians here before they reciprocate you in their place or country, like the EU!”

“But that’s horrible!”

“Yes, it is, of course assuming one’s innocence. But it is understandable, and protective of the public, if one is guilty. A truly lousy or dangerous person who may hurt others in medicine -or teaching, for that matter- once convicted, should not be able to just set up shop some place else”…

“I can see that. But I have hard time accepting it as it is now done, all without impartiality, one sided! Calling now a physician lousy, incompetent or dangerous is often untrue in all fairness, at least as it is done now here by this state…”

“You actually have a point there, Barbara, it is all one sided! But -besides leaving the state as soon as the accused can- there is one other important point: Lawyers don’t tell their physician-clients early enough to keep their mouths shut in front of OPC workers. When they are called for an interview by OPC a doctor can invoke the 5th Amendment and say not a word. Unfortunately the doctor himself is too naïve at the beginning and does not even think he needs a lawyer or have a lawyer present in those interviews – especially if he thinks he hasn't done anything wrong…

“You are right, Ken. If I were called by OPC to answer any questions about a patient complaint against me, I probably would feel initially ‘no sweat’ and innocent. I would go there and blabber carelessly!… With what you tell me, if one day they are also after me, I probably would be wiser now and keep my mouth shut!”