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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.”

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

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.”

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.”

Who are these people to make decisions in the lives of our children?

“In interviews in recent days, a top Guidant executive, Dr. Joseph M. Smith, said that the company had not seen a compelling reason to issue an alert to physicians about the defibrillators because the failure rate was very low and replacing the devices might pose greater patient risks.”

So if one of the 24,000 late-model vehicles you purchased had a high failure rate and caused the death of your son what would you do? What would you do if you were not able to sue because the Department of Transportation approved the vehicle for sale?

And if you have one of these vehicles would you call to determine if your vehicle was part of the recall. Maybe my son would have been better off if Chrysler had manufactured his pacemaker.

Chrysler Group is recalling about 24,000 late-model Chrysler, Dodge and Jeep vehicles to fix a defective part that could cause sudden, unexpected brake failure.

Owners of these vehicles can contact NHTSA’s vehicle safety hotline at 888-327-4236 or Chrysler at 800-853-1403

“At Northwestern University’s prestigious research hospital, one heart doctor is making a serious accusation against another. Nalini Rajamannan alleges that Patrick McCarthy, her former professional idol, engaged in "human experimentation" on patients’ hearts without their approval.

I do not know about you but I would like to know when a device has been implanted in me that is being modified in some way. I would like to understand the risks and benefits of such a device and how much better the device is over another device. Is this so much to ask for?

Congressman Cathy McMorris Rodgers stated that the government should not be making recommendation regarding the new breast screening guidelines. Does this mean government cannot be trusted? If this is so then why has she not signed the Medical Device Safety Act of 2009?

So the industry has lacked profits and innovation prior to the Reigel v. Medtronic ruling of 2008? Senator Hatch has told us that innovation would suffer if we passed the Medical Device Safety Act of 2009. If I remember in my econ classes, a sector that is profitable invites new players into the market.

“Medical devices form one of the largest industries in healthcare sector with an estimated size of $250 billion in 2009 and a growth rate of 6%-8%. The industry has been outsourcing medical device manufacturing services for almost a decade now. This trend has brought about huge profit margins, which has attracted many new players. Outsourcing has helped medical device manufacturers reduce product development cost by 10% to 30%. The services outsourcing industry has also gained from the entry of new medical device manufacturing companies, as these players lack experience in the field.”

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