So here we go again, “Obama Care” is “unconstitutional”. Michelle Bachman and her peers are trying to teach us all the meaning of the constitution and what it is to be American. They will use big words like “liberty” and “freedom”. They will tell us how terrible the big bad federal government is.

Yes, they are the guardians of the constitution, they are the guardians of our freedom and liberty, but… Where are they in over turning the Supreme Court ruling in Reigel v. Medtronic providing federal pre-emption over states rights.

Where are they when Supreme Court took away my right to sue in a state court, a local state court out my back door with a jury of my peers, a jury my neighbors to decide how we want our community oriented. Where are they in defending my right to go to court?

The Supreme Court said that when the politically controlled FDA approves a flawed design for a medical device and that medical device fails I am not allowed to sue in a state court for compensation.

Where are you in defending the 7th., 6th. or 5th. Amendment? You and your peers have been absent. Maybe you did not see any amendments beyond the first two. There are total of twenty-seven, twenty-five which are ignored.

I have heard it all before, over and over again Mrs. Bachman. You can not BS me with your constitutional rhetoric. I have also been around the block a few times.

Just in case my conservative friends are not as well versed in what the founders were talking about when they added the seventh amendment here it is in a Thomas Jefferson letter (to L’Abbe Arnoux), Jul. 19, 1789. A substantially complete collection of Jefferson’ writings, in manuscript, is available at [1]


[w]e all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does. It is left therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty.

Either Gov. Perry is lying or he is misinformed. Either way it is a shame that a man running for President does not get his facts straight before he speaks.

As the study, The Impact of the 2003 Texas Medical Malpractice Damages Cap on Physician Supply and Insurer Payouts: Separating Facts from Rhetoric, points out, the facts tell a different story.

In this media environment where no one has the time to learn the truth or perhaps wants to know the truth all that is needed is a politician to supply an easy to understand quick statement for people to shore up their beliefs.

His statement should be “We cannot at this time statistically determine as to the effects that HB 4 has had on the number of physicians per capita.”

Following are few quotes from the study.

“Texas was not losing physicians before HB 4 took effect.”

“The principal evidence of faster growth after HB 4 is the number of license applications received by the Texas Medical Board (“TMB”).”

“Not all applications translate into licensed physicians, not all licensed physicians serve the general patient population, and the change in the physician population depends on both entry and exit.”

“Our findings indicate that HB 4 does not appear to have had a large effect on the supply of DPC physicians.”

“We estimate that the non-econ cap will result in a significant reduction in payouts in both settled and tried cases.”

“Lower payouts, and likely fewer suits, imply lower malpractice
premiums on average, over the course of an insurance cycle.”

Governor Perry also states that tort reform enacted in 2003 has also brought more physicians to rural Texas. If that is the case why then did Governor Perry sign Texas Senate Bill 894 into law on May 12th 2011.

As stated in the article “New law lets rural Texas hospitals employ doctors”:

“Texas has lifted a longstanding ban prohibiting rural hospitals from employing physicians, a move officials hope will help attract doctors to medically underserved areas of the state.”

“Rural hospitals sought the ability to hire doctors because of a growing trend of physicians preferring to be employed rather than risk starting an independent practice, especially in rural communities where residents are more likely to be uninsured, or covered by Medicare or Medicaid, he said.”

Or maybe you can blame the shortage of doctors on the American Medical Association: “Medical miscalculation creates doctor shortage” or other policy issues as outlined by the Texas Medical Association.

So why is there a shortage of physicians in rural areas? Maybe it is a choice, nothing more.

“Because physicians are affluent and in short supply, they tend to locate where they want to live — not, as McDonald’s or a Chinese restaurant might, where the most customers are.”

I recently came across the following article,  “Coping with Medical Malpractice Insurance Rates

As with many of these articles they fail to link to the resources that formed their opinion and yet if one reads this article with an open mind, with a mind searching for the truth you have to question some of the statistics and opinions of the reader.

Let’s take each of the following statements separately.

But before we get to those statements I have one question surrounding pain and suffering based on an actual case. You are a woman that gets a biopsy for possible breast cancer. Your test gets mixed up and the lab reports back that you have cancer. You have your breasts removed only to find out several months later that the lab mixed up your test and you did not have breast cancer.

So what is your compensation other than pain and suffering. This mistake does not hinder your ability to work nor does it require life long medical care. I guess you would be compenstated 250,00 minus 20% lawyer fees and expenses. If the case is complicated your expenses will be very large which you will have to pay above and beyond the 20% the lawyer collects. (Don’t forget you are suing the insurance company with well paid corporate lawyers.)

I am interested in your take on the above or the statements below.

Let’s take the first statistic that seventy two percent of Americans support limiting the amount patients can be awarded for ‘pain and suffering’.

I have this question for those seventy two percent. Why do you keep awarding these high amounts then if you feel they are a problem? Or, maybe the 72% have not been on a jury. But, how is it then that those 72% can judge the opinion of the 28% if those 72% do not have all of the information to make judgement on each case? Are not those 28% who heard both sides in a better position to make a judgement?

Next, let’s look at the statement  that high med-mal awards force physicians to practice defensive medicine for fear of being sued. Let’s focus on the word fear for a moment though. Should fear be the basis for setting national policy? Maybe we should set national policy based on everyone’s fear. I fear global warming and I fear conservatives will take more liberties away from me even though they like to talk the talk of liberty. Is this fear backed by statistics and peer review?

If “only 2 to 3 percent of cases of medical negligence lead to a malpractice claim” how is this driving the fear? Maybe it is that 24 hours media that needs to hype things to get your attention?

This next statement really has me confused. “Defensive climate also impedes improvements in patient safety that both physicians and patients desire.”

So med-mal drives physicians to perform more tests and that does not increase patient safety? Fear of being sued forces a physician to order more tests and put in place more checks and balances and perhaps discuss risks with the patient and somehow that does not drive up patient safety. I am really confused on that statement because a recent study estimated “that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.”

In the statement below I have highlighted Texas  because Texas has the toughest tort reforms in the country with some very low caps on pain and suffering in place for the past decade. I will leave it at that because you are smart enough to figure this one out.

“The malpractice crisis — characterized by high or steeply rising premiums and scarcity of coverage — is a national problem, but several states have been especially hard hit in recent years. They include Florida, Georgia, Mississippi, Nevada, New Jersey, New York, Pennsylvania, Oregon, Texas, Washington, and West Virginia. In those states, physicians in high-risk specialties such as obstetrics, neurosurgery and anesthesiology, among others, have seen their premiums increase by 35 percent or more in a single year.”

And this following statement about “the cyclic nature of insurance pricing is a factor as well.

On of the reasons offered for this  is that “when many companies are offering insurance, the competition for customers causes a ‘soft’ market, characterized by lower premiums. When insurers leave the market because of tough conditions or steep losses, the market hardens and premiums increase. In professional liability coverage, the permanent market departure in late 2001 of the largest U.S. medical malpractice insurer, The St. Paul Companies, has had a severe effect on both coverage availability and pricing.”

There is more to it than that and in fact insurance company investments may have more to do with it than any one factor.

And finally, Dr. Welch says, “the system as it’s currently structured does not necessarily provide appropriate remedy for injured patients, since only one in eight injured patients actually receives monetary compensation.” This is true because one in eight injured patients file a malpractice claim.

So let me get this straight.  One in eight injured patients actually receive monetary compensation and you are proposing that monetary compensation be capped and in some cases reduced? At 250,000 you will have to find a lawyer that can recover his expenses on complicated cases. Without a lawyer that can not recover their expenses good luck.

So where are the links to the resources that you used to form your opinion? I have trouble with some of those statements because they do not make sense using ones common sense.

It makes sense to me that if you believe in “we the people” that this has to start from a base of trust. It appears to me with all of the voter ID initiatives taking place in this country that Republicans/conservatives are having a problem with “we the people”. “We the people” can be trusted to participate in the free market, participate in this Democracy, and to not only be responsible citizens to bear arms but to sell and purchase arms at unregulated gun shows.

Yes, “we the people” can be trusted in all of these human endeavors but we cannot be trusted to vouch for another citizen or participate in a court room out our back door in a state court as a member of a jury.

If we believe in “we the people” then does not that have to start from a base of trust? If we believe in “we the people” then should not “we the people” be trusted to participate in one of the fundamental institutions of free men, the American justice system?

The founding fathers evidently believed in “we the people”. The founding fathers understood that Democracy was no Wal-Mart because Democracy sometimes is not efficient but then again that is not the goal of Democracy.

We forget the origins of America. America was a creation of those people that wanted to escape from religious persecution in Europe. The British North American colonies sprung up from the conviction, held by Protestants and Catholics,  that uniformity of religion must exist in any given society. This conviction rested with the belief that there was one true religion. Religious majority groups who controlled political power punished dissenters.

No, this is not about religious persecution but we tend to forget the origins of America and we seem willing to give it away for our “bright shiny trinkets”. We seem all to willing to give it away for security. We seem all to willing to give it away in pursuit of the “wal-martization” of Democracy.

So I ask you this, do you trust “we the people”?

Recall that the Pinto’s design met all government standards of the time. Had compliance with federal standards been a complete defense of vehicle safety, Ford could not have been held accountable for the many burn victims that the company was later shown to have anticipated.

So why are medical devices different? Why is it that the politically controlled FDA’s approval and standards preempt the medical device industry from accountability? Should the Supreme Court take this argument to drug companies or any type of company that is regulated by the government such as the auto industry? How would you feel if your sixteen year old son were killed in a Ford Pinto? What would you do if you were not able to sue Ford to discover what happened, to discover what Ford knew and hid?

How Our Cars Got Safer

I heard it again. A Republican/conservative talking about the wisdom of the American people and in the same breath talking about capping medical malpractice payouts because the American people are to dumb to sit on a jury in a local STATE court house out their backdoor deciding how they want to orient society in their state.

Well, he did not really say the American people were to dumb to sit on a jury. He was talking about those damn lawyers. Those damn lawyers with their magic wands and fairy dust casting his spell on those wise Americans sitting on the jury.

You see, when you graduate from law school you have two tracks. You can become a corporate lawyer or a trial lawyer. If you become a trial lawyer you are handed a magic wand and fairy dust. If you are a corporate lawyer all you get is tons of money, putting them at a big disadvantage.

So let me see if I get this right.

The system has a lawyer for the plaintiff, the pied piper with his magic wand and fairy dust, and a lawyer or lawyers for the defendant and their tons of money. There is one judge, the referee, and twelve citizens called the jury, the wisdom of the American people. Each side tells their story and presents their facts, unlike talk radio and cable news. When each side has completed their arguments and presented all of their facts the judge tells the jury the laws that must be applied when deciding the case. The jury then moves to deliberate the case in private amongst themselves.

Yes, I can see where this Republican is coming from. I can see the stupidity of  the collective wisdom and judgment of its citizens. Scary stuff, this “we the people stuff”. Why do we even let these pinheads and idiots participate in Democracy if they are not capable of sitting on a jury in a local state court out their back door?

It is time to bring in the Federal government to settle this matter and take these rights away from the states and its citizens.

This is how the Republicans/conservatives define “We the people…” Do not let them sue when the politically controlled FDA “approves” a device because “we the people…” are not smart on enough on a jury in a court room in our local backyard to make decisions as to how we want to orient society.

I will be the first to admit that our justice system is not perfect nor is it efficient but what other system is there that each of us has access to out our very backdoor. There is no other system closer to us then our courts; a system that is a core value of what it means to be an American living in this Democracy. The jury system is part of the soul of America. It is a system with the beauty of simplicity and the power of the wisdom of ordinary people. It is this same wisdom that Rep. Spencer Bachus talked about in his recent debate about health care reform. The simple beauty of juries involves the following.

The system has a lawyer for the plaintiff and a lawyer or lawyers for the defendant. There is one judge, the referee, and twelve citizens called the jury. Each side tells their story and presents their facts. When each side has completed their arguments and presented all of their facts the judge tells the jury the laws that must be applied when deciding the case. The jury then moves to deliberate the case in private amongst themselves.

It is the jury that the Republicans, the US Chamber of Commerce and big business are really complaining about, the common man, you and I. Do they not believe we are not capable of making decisions about how to live our lives, that we are not capable of governing ourselves, that we are not capable as fully informed citizens to make decisions about the conscience of our community? Is this what we believe? I would argue otherwise.

Our Founding Fathers recognized the collective wisdom and judgment of its citizens and also understood that each of us unconsciously seeks those bits of information that confirm our underlying intuition. This is why the founding fathers gave us a system that allows for dissent. This confrontation forces us, the majority, to interrogate our own positions more seriously.

Yes, the jury system is not perfect, but neither is any institution that man creates and participates in because we ourselves are fallible. Given all of its imperfections the jury system is a microcosm of the very Democracy that men and woman have died for through our history. Yes, again I will say the jury system is not perfect but it is ours.

  • A jury is made up of local citizens who are in the best position to evaluate how the conduct at issue compares with the standards of the community in which they live.
  • The jury system is spontaneous, it is not known in advance preventing any undue influence on the members of the jury.
  • Jurors are not paid by either side.
  • Jurors complete their service and return to their private lives when the trial has ended. Judges are often on the bench for many years leaving them vulnerable to influence.
  • While it may be easy to find one judge that is out of touch with the community, it is much harder to find a jury of citizens that will come to an outrageous result.

So I ask you, what other place is there to better discover the truth and render justice? What other institution in this country does the common man have access to then a court out his backdoor?

The Founding fathers wanted to create a framework that would allow society to orient itself through dictates of conscience. This framework forces each of us into a communal process of finding the truth, an approach to truth that is experienced. An approach to truth that is more than dogmatic belief or a truth inferred from logical arguments. Are these principles and values something that we truly believe in our hearts as the best approach to society?

America is a nation formed by a set of ideals. America is composed of ideas of freedom, liberty, independent thought, independent conscience, self-reliance, hard work, and above all justice. It is a country that was formed from the injustices thrust upon the people and yet we want to deny ourselves the opportunity to seek justice, to seek the truth.

That is the strength of our Democracy, the people and our access to the courts out our backdoors. The ultimate power of the people can be found as close as the nearest court house. If our laws start to deny society this process of truth then the law is in danger of becoming no less a tyrant. Our founding fathers understood this which is why they gave us this tool of Democracy, the jury system. Are we to deny the wisdom of our fathers?

Is society ready to deny this father? When does it become OK when the life of another is more important than my son? I am told that allowing people to sue medical device manufacturers would harm innovation, innovation that would allow someone to live a better more productive life. My son is not living any life, better or productive. Is this my price for society’s innovation? Who makes that decision? Is it the politically influenced FDA commissioner or maybe the political appointment of Supreme Court Justices?

I will conclude with a quote from Thomas Jefferson, a powerful statement about the soul of America. “I know of no safe repository of the ultimate power of society but people. And if we think them not enlightened enough, the remedy is not to take the power from them, but to inform them by education.”

An interesting article. Medical device manufacturers just keep on giving. These days it is all about the sale.

“It is alleged that the deal Dr. Burnam, Burnam, and St. Jude struck was that Dr. Burnam would prescribe St. Jude defibrillators for his patients as a quid pro quo for hiring his son. Burnam also would receive commission points with a guaranteed floor of $200,000 per year. As part of the deal, it is alleged that the doctor would receive compensation for engagements and so-called research projects.”

Why have companies behaved so badly this past decade? Was it cost cutting? Was it greed?

DC and the US Chamber are continuing their march to destroying all middle class protections. The next battle is to get generic drugs preempted from state tort laws because the politically controlled, conservatively underfunded FDA has approved the drug. This is the perfect situation that big business loves. They have the power and the influence to squeeze every ounce of profit out of life.

So who is going to protect the middle class? It is not the Democrats/liberals, Republicans/conservatives or libertarians. No one believes in the power of citizens to determine how they want to orient their society.  We have given up on juries in deciding how citizens want to orient their society. We have given up on ourselves. Maybe we really to need a king since we are not smart enough to determine what is important and what is not?

“Food and Drug Administration inspectors found in April that McNeil Consumer Healthcare, which has voluntarily recalled certain lots of its children’s and infants’ Tylenol products, knowingly used bacteria-contaminated materials to make them, a report posted Tuesday by the agency says”

An interesting discussion on “loser pays”. For all the talk of reducing lawsuits I have to ask two questions that I have not found an answer to?

  1. What is the definition of a frivolous lawsuit? Is this in the eye of the beholder?
  2. What percentage of all lawsuits are frivolous? If this is a small amount than why would we want to make it harder for the middle class to protect themselves?

A warning letter?! It is up to the manufacturer to provide information to the FDA. I also did not hear of any fine against Medtronic. What will force them to cleanup their act or is Medtronic to big of a ship to steer?

“It took almost two years from when the missing propellant was initially identified to conduct a recall.”

“In a statement, Pat Mackin, president of the Cardiac Rhythm Disease Management business and senior vice president at Medtronic said, quoted the Business Journal, “Medtronic remains committed to providing the highest quality products to our customers and is working with FDA to resolve all remaining issues as quickly as possible…”

“FDA is concerned with your failure to initiate a recall for devices affected by the propellant problem in a timely manner,” the warning letter, dated June 1, states. “It took almost two years from when the missing propellant was initially identified to conduct a recall.”

“According to the letter, training records indicated that the employee who evaluated MiniMed pump reports only had a high school diploma with some additional in-house training.”

I believe many electrical devices are UL approved in the same manner devices are approved by the FDA. Yet, Medtronic believes it should not be sued because of a faulty medical device approved by the politically controlled FDA as the Supreme Court ruled in Reigel v. Medtronic. Are their two standards here? I suppose, as Senator Hatch said of trial lawyers, some creative corporate lawyer will find some sort of neat logic to defend these two opposing legal arguments. If we allow this to happen would we not be imposing “fifty” different requirements on Petco. How do these frivolous lawsuits ever make it to court? Is “stuff” more important then a human being.

“’The defendant negligently failed to provide Plaintiffs with reasonable warnings of defects and hazards which it knew or should have known were present in the aquarium heater described herein, which negligence was a direct and proximate cause of the fire and damages,, the suit claims.

Medtronic contends that because the heater was defective, Petco should be liable for the damage that resulted from the fire.”

The Republicans are not on board to pass the Medical Device Safety Act because they say the industry is regulated by the FDA. Allowing people to sue will place 50 requirements on these device manufacturers and yet they will not fund the FDA.

You draw your own conclusions. If I was in charge I would not let this company sell drugs for one year. Of course with caps they can more easily calculate the cost of doing business unethically.

Diabetes Drug Maker Hid Test Data, Files Indicate

I firmly believe that Democracy and the Justice system is only as good as the people. We get what we deserve.

“Sometimes people wonder if bloggers should be called journalists. But this blogger wonders if certain journalists should be called journalists.”