Oops! What do you Mean She was not Pregnant?

There was a story reported in mid-December of a 37-year-old Brazilian who underwent an emergency cesarean section in Brazil. The only problem was that she was not pregnant. She reported to the hospital complaining of pain and told doctors she was 41 weeks along. Relying on complaints of nausea and the visual perception of an enlarged abdomen, the physicians concluded she was pregnant. As they could not hear the baby's heartbeat, they concluded the child was in distress and elected to perform surgery.

What is wrong with this picture? First, admittedly, there are no details provided as to how sophisticated the facility at which this occurred. Possibly, surgery was the only tool at their disposal when they could not find a heartbeat. The urgency may not have afforded much time for reflection or investigation, regardless of the facility's resources. However, it is a headline that grabs attention and leads back to questions about surgery.

According to MSN "tens of thousands of patients annually submit to costly operations that could be avoided." This assertion emanates from a USA Today article resulting from a review of government records and medical databases. They concluded that "10% to 20% of all surgeries in some specialties" may be unnecessary.

Among USA Today's conclusions were angioplasty, pacemaker, spinal fusion, and colonoscopies. The article concluded that "70% of hysterectomies were inappropriately recommended, often because doctors didn't attempt treatment with non-surgical procedures." The authors broke these procedures "into three groups: the immoral, the incompetent and the indifferent."

A New York Times investigation cited by The Washington Post concluded that unnecessary procedures are performed. They suggest that "doctors may have performed unnecessary procedures because there was a financial incentive to do so." Because physicians are "paid for each service they provide," the more procedures, the higher the salary. They conclude that 78% of health plans pay the physician on a "fee-for-service model" that is consistent with the maxim of more procedures equate to more income.

The USA Today article recommends that patients should question surgical recommendations, ask for non-surgical options, and seek a second opinion. It is ultimately the patient who deals with the trauma of surgery, and the rehabilitation and recovery that follows. It is therefore ultimately the patient that should ask these questions about recommended treatments. Whether the doctor is inclined to surgery by habit, comfort level, or incentives, it is the patient's ultimate responsibility to look out for her or his best interests, ask questions, and make sound decisions.

On Comet, On Cupid, on Donner, on DOAH

On DOAH?

What on earth does that mean, is DOAH one of the reindeer?

I hear this all the time, and see it referenced in pleadings. There seems to be some relevance assigned by attorneys to whether something is or is not "on DOAH."

DOAH is the Division of Administrative Hearings, a state agency in Tallahassee. Since 2001, the Florida Office of Judges of Compensation Claims ("OJCC") has been a part of the DOAH. Both the OJCC and the DOAH have embraced the digital world and have pioneered electronic filing. Each has a web presence, which are similar, but are distinct. 

The DOAH website is http://www.doah.state.fl.us/ALJ/

The DOAH has an electronic filing service that is accessible from their web presence, it is called "eALJ," a reference to the fact that administrative hearings assigned to the DOAH are heard and determined by Administrative Law Judges ("ALJ"). 

The OJCC website is http://www.fljcc.org/jcc/

The OJCC website has an electronic filing service that is accessible from our web presence, it is called "eJCC," a similar reference to the fact that the disputes regarding Florida workers' compensation benefits are heard and determined by Judges of Compensation Claims ("JCC"). 

When something is electronically filed with the Administrative Law Judges, regarding some central panel dispute that is part of the DOAH ALJ jurisdiction, you would file that on http://www.doah.state.fl.us/ALJ/ and you might cogently assert that you have "filed" something "on DOAH," as that is the root of the name of that website. 

When something is electronically filed with the OJCC, you are not communicating clearly or descriptively if you tell someone your filing is "on DOAH." You are, instead, miscommunicating. In either instance, the more effective description would be to state that the filing is "in the OJCC case docket" or "in the DOAH case docket." 

What does "on DOAH" mean? It doesn't mean anything, it describes nothing effectively, and is prone to confusion. It would be helpful if its use was discontinued. 

Its Déjà Vu All Over Again

Zohydro is in the news yet again. This month the new medication will become available. Its manufacturer says it will market this only to a select few physicians whose experience with pain will assure their discretion and restraint in distributing this strong pain killer. 

In November, I noted the approval of this new Opiod formulation, and in December, I wrote when over half the nation’s attorneys general wrote to the FDA urging that the approval receive greater scrutiny and perhaps reconsideration (Zohydro in the News Again).

Well, as Yogi Bera once said “its déjà vu all over again.” Zohydro is back in the news at the end of February. Now, an “activist” group is questioning the Food and Drug Administration (FDA)and has released a letter it sent to the FDA in late February. The group is called “Fed Up!” and their points are interesting. 

They note that Zohydro is being marketed in the “midst of a severe drug addiction epidemic.” They note that Zohydro “will kill people as soon as it is released.” Dr. Andrew Kolodny calls it “a whopping dose of hydrocodone packed in a an easy-to-crush capsule.” Drug overdoses killed 38,329 Americans in 2010. The eleventh straight year in which a new record was set. People are dying, more each year. 

Other Zohydro criticisms are focused on the strength of the new formulation. They note that it is about 10 times stronger than Vicodin. They note that a two capsule Zohydro overdose may be fatal, and that one pill could be fatal to a child. 

The manufacturer claims that Zohydro is safer than other opiods because it does not contain the acetaminophen (commonly referred to as Tylenol) that has been linked to liver damage. Some opium pain killers (Vicodin, Vicodin ES, Vicodin HP, Anexsia, Lortab, Lorcet, Lorcet Plus, Norco, Zydone) are composites that include Tylenol. The Zohydro pill that is 10 times stronger than Vicodin, easily crushed to speed absorption, and free of any anti-addictive precautions is safer for the public because it does not contain Tylenol? The Zohydro which could be fatal to a child in a single dose is safer for the public because it does not contain Tylenol?

The manufacturer, Zogenix, disputes the contention that Zohydro is up to 10 times more powerful than existing formulations of opium. They also contend that within three years a version of Zohydro will be available with the "abuse deterrent formulation," that is the anti-addictive efforts common today in other opiods. With anti-addictive measures and anti -abuse measures on existing opiods are dying. For three years, Zohydro will be on the market without such precautions, while drug deaths continue?

Medpagetoday.com recently ran an online survey, asking if "Zohydro approval (was) the most dangerous decision the FDA has ever made?" On Tuesday, the response was about 60% "yes."

"Fed Up" is not alone. On March 3, 2014, Senator Charles Schumer joined the chorus. "It is baffling that at the same time policymakers and law enforcement officials are waging a war on the growing prescription drug crisis, we are essentially rolling out the welcome mat to a new, more powerful, and easily abused super-drug," Schumer said in a statement, according to medpagetoday. 

He is the third U.S. Senator in a week to weigh-in against the approval of Zohydro. In February, Senators Joe Manchin (D-W.Va.) and David Vitter (R-La.) voiced concerns in a letter to a medical school that is tied to the approval process. 

So, to recap, the Food and Drug Administration had Zohydro evaluated by its own team of experts. That team recommended against approval. The FDA overruled its own team and approved the drug. It will enter the market without anti-addictive and anti-abuse precautions common to other opiods. 

Deaths from opiods have increased dramatically over the first decade of the Twenty-First Century. Opiods are a problem in this country. They are destroying and ending lives. The government that is supposed to protect people has overruled its own team of experts and approved Zohydro. Unless the calls of "Fed Up," the various states' attorneys general, these Senators, and a variety of news outlets are answered, Zohydro becomes a reality in the marketplace in March. 

Time will tell if it is as dangerous as critics assert.

The Supreme Court Takes a Professionalism Stand

The Florida Supreme Court recently delivered a public reprimand in The Florida Bar v. Jeffrey Alan Norkin, Case No. SC 11-1356. There are those who contend that this case is significant, and others who disagree. The Miami New Times questioned "Is Jeffrey Norkin Florida's Most Obnoxious Lawyer? The State Supreme Court Seems to Think So."

You may find this case interesting reading. There are Rules Regulating The Florida Bar. Many of us studied them back in the day before we took the "ethics bar," which is officially called the Multistate Professional Responsibility Examination or MPRE. Those rules and that test are about ethics, rules, and behavior. One might act within those rules and yet not be courteous or professional. 

There has been a trend to address something larger than ethics, something called "professionalism." Florida has tried to lead in this effort. There have been numerous noteworthy achievements. The Bar established a professionalism center. The Court has adopted an amendment to the oath of admission to remind attorneys of professionalism. There have been innumerable continuing education hours focused on professionalism. These efforts are detailed on page 24 of the Court's opinion. The Court's references to professionalism efforts are interesting. 

But the efforts have not been enough. We can argue about whether any volume of consciousness-raising or education or reminders will ever be enough for some sub-segment of our Bar. Perhaps that is not the point, but instead, we need to be concerned with what volume of education and reminders will be enough for the vast majority of our Bar. Perhaps there will always be some minority for whom only the stick will be successful.

The Court in this instance seems willing to apply that stick when the circumstances are sufficient. 

In this case, the investigation revealed a pattern of combative behavior. Mr. Norkin threatened legal action against a Mr. Tobin, a senior Judge appointed by the court to act as a provisional director of the company involved in litigation in which Mr. Norkin represented a party. He accused Mr. Tobin of conspiracy, and "berated" him.

The presiding judge noted that Mr. Norkin came in "like a bull in a china shop," and "consistently" screamed during proceedings. The Court noted that "eventually" the judge recused himself, but that Mr. Norkin "continued his unprofessional behavior" before the next judge assigned. The Court quoted transcripts of proceedings before the second judge in which she instructed Mr. Norkin "don't yell at me," and noted that he would "yell at me every time we have a hearing." Eventually, the second judge in frustration said "oh my god, I'm done. Good Bye. Not doing this. Not going to be questioned by you."

Mr. Norkin explained to the referee that his voice is "naturally loud." The referee concluded the explanation was "patently unbelievable" and that other explanations of events offered by Mr. Norkin were "implausible." 

The Florida Bar referee concluded the investigation and recommended a 90 day suspension and that Mr. Norkin pay the costs associated with the investigation. Of course, the recommendations to the Court are precisely that, the Court is not bound.

The Court noted that is "crucial to recognize the Court and The Florida Bar have been advocating professionalism and civility for over 20 years." The Court noted that it is "profoundly concerned with the lack of civility and professionalism demonstrated by some Bar members." It noted that Mr. Norkin's behavior demonstrated in this case continued "despite repeated warnings from judges." The Court cited the Rules Regulating The Florida Bar, and it concluded "this profession cannot tolerate such behavior" as demonstrated in this case. 

The Court noted that "competent, zealous representation is required" when representing a client. However, "screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him are not among the types of acceptable conduct, but are entirely unacceptable. It concluded Mr. Norkin's "unprofessional conduct is an embarrassment to all members of The Florida Bar."

The Court rejected the referee's recommended punishment (90-day suspension) and instead imposed "a two-year suspension," and a public reprimand by the Court. That reprimand was delivered in February. 

Is professionalism important? I think so. I am also inclined to believe that I am not alone. I meet so many zealous advocates and fine attorneys out there practicing in our offices. I have rarely had to issue an instruction to remind counsel of their obligations regarding behavior. I cannot think of any time that one such warning was not sufficient in a case to moderate behavior where emotion may have fleetingly overcome decorum. 

Know that your demeanor and professionalism is noticed, is important, and is valued. 

Whether this case is meaningful or not remains to be seen. Those who question its significance note that Mr. Norkin had a history of disciplinary proceedings, this was not a first offense. They note that the Court concluded that Mr. Norkin refused throughout to concede his behavior was problematic (no regret demonstrated). They note that the "aggravating" factors found here would have led the Court to this severe punishment on the Rules violations alone and that this is just another Rules violation punishment, not really a professionalism punishment.

That may be the case. This may not be a landmark decision. Time will tell. What it is, however, is a case in which the Court makes clear again its feelings about professionalism. It is a case in which a lack of professionalism is held to violate the ethics rules. It is worthy of consideration. 

All attorneys, witnesses, and judges are worthy of the respect and courtesy that marks us all as professionals. If you are not receiving that courtesy or witness discourtesy to others, I encourage you to bring it to my attention. There is no room in our little corner of the practice of law for mistreating people, and there is no need for such behavior to reach the discipline level if a reminder might remedy it. 

We have to get along, it is a small sandbox

I heard a story recently in my travels. The story was of an experienced workers' compensation attorney whose behavior described in the story was not flattering. There are two sides to every story, and therefore I put no particular stock in the story as currently told by only one side. I find it interesting, and worthy of describing because the story helps to illustrate a fallacy that I have heard reiterated too many times over the years. 

In this alleged incidence, the experienced attorney became embroiled in a discovery dispute with another attorney. The situation proceeded through the usual efforts at obtaining the discovery, and devolved through the normal motion process, into the workers' compensation practice's "exceptional circumstances" process that required a hearing.

The root of the dispute described to me was unfortunate at best. This experienced attorney, if the story were true, allowed him/herself to be dragged into the weeds by the inappropriate behavior of a less experienced, but nonetheless tenacious attorney. Essentially, the scheduling of discovery appears to have devolved into a debate about who would get to "go first" in the discovery deposition process, and apparently as important to the two attorneys, who would get to go last, deposing his/her expert just before trial.

From the initial disagreement regarding the timing of the final expert depositions just before trial, the dispute between counsel allegedly flowered into a series of ancillary disagreements. According to the storyteller, by the time of the "exceptional circumstance" motion hearing, the two attorneys were no longer able to agree on what day of the week it was. Frustration had evolved to animosity and then to anger. Professionalism had taken a holiday, and the return ticket had been left open.

The outcome is not important. The behavior is also not important, even if completely true. What is important is that we will all make mistakes of judgement. We are all human and will lose our patience in certain situations periodically. As a Japanese proverb provides, "fall down seven times, get up eight." The point is that we will all stumble, and the secret of professional success is far more about the recoveries we make more than the failures we suffer. 

What I am pleased with in the story is that, as it was related to me, the experienced attorney recognized the fallacy of the anger. S/he rose above the dispute, though it took some time, and was the one in the course of the hearing process to propose a series of professional and mature compromises that allowed the two attorneys to move past the vast majority of their scheduling disputes. As I heard it, the judge still had to make a few decisions about some remaining differences, but was blessed by the presence of two attorneys who by then had grown out of the animosity and who made their arguments about the final disputes on the merits and without acrimony.

I was most proud of the description I got of the conclusion of the process. The judge announced the rulings and adjourned the hearing. As related to me, the two attorneys did what all attorneys should do after such a process, they shook hands. They put the angst and the anger aside and moved forward. That is professionalism. I do not suggest that they parted friends. We may not be able to evolve that far in all relationships. However, if we can't be at the friends end of the spectrum, we must avoid the enemy end also, and at least work in the middle where there is mutual respect and professionalism.

Certainly, not all disputes can be resolved without a judge's order (and sometimes an appellate court or two's opinion) and it is never easy to accept an outcome that you opposed. At the end of the day, however, remember that what is important is that you can only do what you can do. You can only change so much. In the movie Bull Durham, the simple philosophy was explained "sometimes you win, sometimes you lose and sometimes it rains." You will have good days and bad days in litigation and in life. Know these limitations, do your best, keep your chin up and retain your composure. And when it is over, shake your opponent by the hand and put it behind you. 

There will be another day, other disputes, other challenges. Live to fight the next battle with your dignity and your self-respect. It never pays to raise your blood pressure over things you cannot change. And remember, it is a relatively small sandbox. You are likely to run into these same people again. 

The Primary Care Provider, an Indispensable Role

A recent article highlighted the experience of a Harvard Medical School physician who got a "crash course" in the way American medical care is delivered.

"After falling down a flight of stairs, breaking his neck and nearly dying, a Massachusetts physician is now speaking out about the stark deficiencies he saw in his own treatment -- and how those shortcomings relate to more general problems he sees plaguing medical care in America."

Dr. Relman takes no issue with the care he received. He called his life-saving care "excellent." He noted that the physicians "simply refused to let (him) die." 

What he was surprised by was the ever present technology. He noted that his physicians were focused more on "the masses of data generated" by testing, than on him. He read the physicians' notes about his care, and "found only a few brief descriptions of how I felt or looked." His conversations with the physicians were "infrequent, brief and hardly ever reported." 

Dr. Relman did not feel like there was a single doctor overseeing the spectrum of his case. He says that "someone who knows the patient oversees their care," essentially coordinating the efforts of the various specialists. This should be the primary care physician. He contends that the absence of primary care from the experience "allows for fragmentation, duplication and lack of coordination of medical services." He laments the "growing national shortage of primary care physicians. 

While his experience is poignant due to his unique perspective as a physician, is it any different for anyone who suffers a traumatic injury and seeks care? Is the current state of workers' compensation medical care subject to the same concerns of "fragmentation, duplication and lack of coordination of medical services." Is there any one more critical element than the primary care physician, the occupational medicine physician, in  achieving the lofty goal of "quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the workers' return to gainful employment . . . .." Fla. Stat. 440.015?

It appears that the primary care physician is critical. That is a "take away" from his article. I would suggest that another "take away" should be that people need to be listened to, heard, and communicated with. I understand the role of diagnostic testing. I understand the role of data. But in the end, we all want someone to talk to about our maladies and illness and complaints. I suspect that this is important from a physical and psychological standpoint. 

Do we really need a doctor to explain this to us?

Will You Be My Friend?

When is it appropriate for a judge to "friend" someone involved in the cases before them? I would suggest that the answer is likely "never." Please disregard the seeming invitation in the title; it was merely to draw you in. The "judge friend" situation was recently illustrated by a Florida Circuit Judge, whose offer of "friend"ship was analyzed by the Fifth District Court of Appeal.

Chace v. Loisel, Case no. 5D13-4449 (Fla. 5th DCA 2014) is a divorce proceeding. During the litigation, the presiding judge sent an offer to one of the parties, the wife, and offered to "friend" her on Facebook. The wife ignored the request.

The use of Facebook by judges has been addressed before. In Domville v. State, 103 So. 3d 184; r'hrg denied, 125 So. 3d 178 (Fla. 4th DCA 2013), the presiding judge there accepted the assigned (in that judge's usual division) prosecutor's "friend" request.

The Fourth District Court noted in Domville that "central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal." Therefore, in that instance, the Court concluded that "a reasonably prudent defendant would fear (because the judge was the prosecutor's "friend") that he or she could not receive a fair and impartial trial so that the defendant's motion for disqualification should be granted."

Essentially, a judge being a "friend" with the attorney for one party creates a problem that is best solved by the judge's disqualification or recusal, according to the Fourth DCA.

The Chace judge was not the invitee, but actually sent the invitation to one of the parties in the case. The judge was thereafter presented with a motion for disqualification (side note, when a judge removes himself or herself it is called a recusal, when a party seeks removal it is called disqualification). The judge denied the motion, but the Fifth DCA reversed and disqualified the judge who sent the offer of "friend"ship.

The Chace court noted that the Judge's offer of "friend"ship was an ex parte communication to the wife. That is not appropriate under Canon 3 of the Code of Judicial Conduct. The Court also noted, however, that the offer placed the wife "between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the 'friend' request."

Although the Chace court ordered the disqualification, it took issue with the Domville prohibition on facebook "friends," saying "We have serious reservations about the court’s rationale." They explained that in social media "friend" is a term of art and that it may not connote a "close relationship;" it could mean instead "virtual stranger." The Chace court noted that "Domville’s logic would require disqualification in cases involving an acquaintance of a judge." This, they concluded, could lead to disqualification under Domville that is "unworkable and unnecessary."

Of course, following the Domville decision, few if any judges remain exposed on the Facebook platform. Many have simply abandoned that platform and similar networking media like LinkedIn. Therefore, the Chace court's concern of unworkable and unnecessary disqualification may be inapplicable except when a judge acts inappropriately as in Chace.

The Court noted that the suggested distinction between Domville and Chace based upon the "friend"ship (offered or accepted) being between the judge and a party versus an attorney is "inconsequential," although the "friending" of a party "in a pending case raises far more concern than a judge’s Facebook friendship with a lawyer," essentially because of the ex parte nature of that communication, and the Canon's clear prohibition.

In the end, Domville remains the law in Florida. Judges should refrain from "friend"ships that could "create a well-founded fear of not receiving a fair and impartial trial in a reasonably prudent person." Chace suggests that this may not always remain the situation, and that "friend"ships may not remain so problematic for Judges forever. But Chace does not change Domville, and the prudent Judge will currently refrain (in case you missed the disclaimer above, the foregoing is in no way intended as an invitation to "friend"ship in any way, manner or description).

How will you take your profit?

Life is a series of cost/benefit analyses. We learned that in macro and micro economics in college. Today, high schools across Florida are offering economics education, a boon to the students that will proceed to college on a non-business degree track and therefore would otherwise miss the cost/benefit analysis education. 

Essentially, these analyses are merely a considered approach to determining how we proceed in life. Is the benefit to us commensurate with the cost of that activity, action or inaction on our part? We do it naturally as humans. A co-worker invites us to lunch ("everyone else is going, come on"). We have  a brief due, need to prepare for a conference call, have a client coming in at 1:00, etc. 

The cost of going to lunch is both financial (the can of tuna salad in our desk is paid for), and time. We analyze, consciously or otherwise, the benefit(s) of camaraderie, office solidarity, friendship, a break in the work, against the cost of lost work time, having to catch-up after (will I have to work at home tonight to make up for this?), etc. 

In this regard, our workday is a limited resource. Do what you may or will, there are just so many hours in the day. As a natural consequence, we each have to make decisions about what we will or will not do and then how we will prioritize what we will do. There is a natural process of excluding what we do not want (or perhaps do not like) to do. It is human nature to avoid the tasks that we do not enjoy. These tasks represent a cost to us, that is whatever else we could spend our time doing instead (called an "opportunity cost" in economics class). We are more likely to accept the costs of activities as the benefit there from increases. 

Benefits are likewise all in the eye of the beholder. One may value higher earnings, and what that will buy, more than another benefit. Some may instead value time. I realized many years ago, after escaping the confines of a law partnership that focused on what the partners valued, that I could decide for myself how I would take my "profit." 

While in the partnership, success and income was measured in billable hours, collected fees, and production of business. Time was expended in pursuit of these through a variety of tasks and efforts including legal work, mentoring of associates, marketing of the firm, and improvement of personal skills. These all were assigned value based upon a collective compromise among partners as to what should be considered important. It is fair to say that partners do not always agree on what is important, and either compromise or consequences are inevitable.

I realized after leaving that environment to form my own firm that I could instead accept my "profit," that is the extra, in time. It was a revelation I reflect upon today with some pride and with significant gratitude. Instead of the next billable hour, the next client lunch, the next seminar, I could take the afternoon off. This facilitated the ability to be integrally involved in the lives of my children. 

I rarely missed a ball game, and never missed a concert. I spent weekends on camping trips, and hours judging debate tournaments. Each such effort was an economic opportunity "cost," in that each minute spent thus was minute I did not work and earn money. Each also had a great benefit to me, and more so to the family which depended upon me (and more still which I depended upon). 

There has to be balance. You have to work enough to live, and to support those dependent upon you. You have to live enough to justify the work however. How do you take your profit? As much as I might wish for a convertible sports car, I think that the rewards of the family with which I have been privileged far outweigh the dream car I might have otherwise purchased.

Today, I see people continuing to struggle with the questions of how much time to spend working. I hear stories about missed family time and feelings of over commitments at work. Each of us will face the analysis of how we will take our profit. In the end, we are really answering the question of what is important to us. What is important to you?

An Example of Judicial Discipline

When do judicial duties and retail mix? That is a trick question, they don't. Judge Hawkins is a County Court Judge, first elected in 1996. The Judge was accused of using her judicial office to promote a private business, failure to respect and comply with the law, failure to act in a manner promoting public confidence in the judiciary, failure to devote full attention to judicial office, and lack of candor with the Florida Judicial Qualifications Commission (JQC). The JQC was asked to investigate.

The JQC is a fifteen member panel. Two members are chosen by the District Court of Appeal Judges, two are chosen by the Circuit Judges, and two are chosen by the County Court Judges. Four must be lawyers chosen by The Florida Bar Board of Governors. The final five are non-lawyers chosen by the Governor.

According to the JQC website, the "Commission is an independent agency created by the Florida Constitution solely to investigate alleged misconduct by Florida state judges." On January 27, 2014, the JQC issued its Findings, Conclusions and Recommendations in the Inquiry Concerning Judge Judith Hawkins.

The JQC concluded the Judge was guilty of promoting the sale of her private business' products in the courtroom, in the courthouse, to attorneys appearing before the judge, and using the judicial position to promote the sales.

Judge Hawkins was also accused of reading magazines while presiding over jury trials. "when questioned," the judge explained that there was no harm in this as she "could cover" her "lack of attentiveness by asking counsel to rephrase the objection."

Judge Hawkins was accused of devoting "less than (her) full time and full attention to (her) judicial duties." The Judge allegedly has "a great deal of time" and so felt "free to use judicial chambers and out-of-court free time to conduct (her) for-profit business . . .."

After allegations were made, the Judge was accused of deleting subpoenaed financial records, misleading the investigative panel, refusing to turn over financial data, misleading through incompleteness, lacking candor, and obfuscating discovery.

The JQC stated that "The instant case presented a very close call between "removal" and "discipline." They concluded that she "made knowingly misleading statements to the FJQC investigative panel and its investigator," destroyed evidence" and "refused to produce subpoenaed records even after multiple orders." They concluded "this conduct is the antithesis of respect for the law that Judge Hawkins has sworn to uphold.

The JQC recommended that the Supreme Court impose:

(1) a public reprimand;

(2) a three month suspension without pay; and

(3) a $17,000 fine.

According to records of the Florida Department of Management Services, judge Hawkins earns about $138,019.92 per year. This equates to about $378.14 per day. So, ninety days of pay is about $34,032.60.

Recently, the Supreme Court has taken a tougher stand regarding attorney discipline. More on that coming in a post soon. Will the Court accept the FJQC recommendation in this instance and impose this significant fine and public reprimand, or will the Court remove this judge whose chosen behavior "is the antithesis of respect for the law?"

Medical Fees "out of whack"

The phrase "out of whack" is interesting. According to the Urban Dictionary, this means "something that doesn't make sense." Periodically, there are stories in the news that suggest American medical care is out of whack.  

The New York Times reported January 18, 2014 that "Patients' Costs Skyrocket; Specialists' Income Soar." The story follows the tribulations of a patient that had a tiny spot removed from her face at the Arkansas Skin Cancer Center. The removal ended up with billed charges of $25,000, and to some extent was accomplished by forcing the patient to participate. In the words of the patient, she "felt like a hostage."

The Times notes that "Many specialists have become particularly adept at the business of medicine by becoming more entrepreneurial, protecting their turf through aggressive lobbying by their medical societies, and most of all, increasing revenues by offering new procedures — or doing more of lucrative ones."

In this particular instance, a dermatologist removed the tiny spot, then declined to suture the wound. For that the patient had to visit the office of a plastic surgeon across the street. Despite the fact that the patient did not want a plastic surgeon. 

At the plastic surgeon's, she got an IV tube placed, and met the anesthesiologist, was anesthetized and the wound closed. The charges included $1,833 for the removal of the skin lesion, $14,407 for the plastic surgeon, $1,000 for the anesthesiologist, and $8,774 for the hospital. Though she preferred the dermatologist put in a few stitches or that the wound be allowed to close on its own, she received all of this care. She felt she had no choices. Afterward, she spent months negotiating the bills and eventually paid much less. She also declined to return to those physicians for follow-up care. Apparently making your patient feel like a hostage does not build confidence or loyalty.

Use of this removal surgery, called Mohs, has "skyrocketed in the United States," increasing about 400 percent in the last ten years. Hospitals have offered an average of about $600,000 to hire dermatologists to perform these Mohs procedures. The article cites other examples, almost $1,000 to scrape off a mole (no stitches required) and $500 to freeze off a wart. Dermatologists are now the "fourth-highest earners in American medicine." The lowest earners? That would be the primary care physicians that are on the front-line of medical care, managing a vast array of conditions and complaints. 

The Times notes that "specialists earn an average of two and often four times as much as primary care physicians in the United States, a differential that far surpasses that in all other developed countries." They note that "more specialists mean more tests and more expensive care." According to a health economics professor at Georgetown University, there is an inclination to maximize reimbursement and "each patient is like an ATM machine."

There are cost drivers mentioned also. The Times notes that "new doctors graduate with an average of about $150,000 in debt" and that "some specialists face malpractice premiums of over $100,000 a year." These are noteworthy factors. But why are there not more medical schools opening, why is the supply of doctors not increasing to meet the demand or perceived demand?

The reimbursement allowed for various procedures and specialties is tied in some part to the reimbursement that Medicare allows. That valuation is "based on a complex algorithm that is intended to take into account the time and skill required to perform a medical task, with an adjustment made for a specialty’s malpractice rates." 

Is the process out of whack? Medicare has a list of "potentially misvalued," which the Times characterizes as "overused or overpriced." Medicare has put the Mohs procedure at the top of this list. So there is a process in place to identify and perhaps deal with pricing issues. But they note that "750 lobbyists represent groups of health professionals in Washington, pushing back on any effort to limit their incomes." According to the Times, these groups spend about $80 million annually to promote their interests and their incomes. 

Eighty million dollars! Would there be a need for such expenditures if the procedures were appropriate, necessary, justified? Well, there will always be a pressure to reduce costs, and so there is the argument that payers would resist even those that are necessary and justified. Ultimately, the system we have chosen, in which the consumer (patient) is not the payer, creates and facilitates dysfunction and discourages normal market economic effects. In such a system, lobbyists have assumed a major role.

From the descriptions in the article, it seems that the reimbursement system is indeed in need of revision. Whether that is possible with the competition among the vast array of competing interests remains to be seen. With the United State's annual medical bill at $2.7 trillion, the motivation to assure that our expenditures are appropriate and necessary seems obvious from some perspectives. 

In a system driven by lobbyists is any true reform practical, or will we continue with a process of ever shifting regulation, with armies of consultants paid to teach doctors an hospitals how to correspondingly shift their practices to maximize reimbursement within the confines of each new iteration of regulations? 

What if consumers (patients) had more of a say in what care they consumed? Can supply and demand ever become relevant to American medical care?