Communication and Activation

Medical News Today (MNT) recently published Did I understand you correctly, doc?, an expose of communication between patients and physicians. It is a worthy subject for the workers' compensation industry, because every injured worker becomes immersed to some depth in medicine. For many, it will be both their first and most significant foray into medicine. 

The MNT article contends that patient understanding is a critical element of care, and particularly so when dealing with "chronic diseases." Patients need to be engaged in caring for their conditions, and particularly aware of "potential complications" that are involved with or associated with those conditions. If patients are not "actively engaged in their own care," then we might anticipate an "impact (on) both care and safety."

Effective communication is a two-way street. Over decades of working with a vast variety of people, I have concluded that both speaking and listening are critical skills. Unfortunately, I have often found that listening is a skill that is too often ignored. Sometimes, that is through a personality trait, some people seem to just be inherently weak listeners. Other times, I have seen that to be a situational issue in which the poor listening is associated with the stress or emotion of a particular setting, such as a hearing or a doctor's appointment. 

MNT contends that patients must be engaged in their own care. Becoming engaged will enhance care effects and outcomes. The informational deficit is illustrated by the story's example of diabetes. Studies are cited supporting that less than half of diabetes patients understand the link between this disease, heart disease, and mortality. Even less appreciate the diabetic risks of stroke, and a great number do not appreciate diabetic risks of "kidney disease and amputations." These risks are all well documented, and the Internet is replete with information. Why do patients lack this knowledge?

The point of disease knowledge is directed at care. Patient appreciation for risks and complications "improves patient adherence to treatment," and will perhaps delay or even prevent the onset of various complications. The adherence to treatment may include effective and regular use of medications, engagement of healthy lifestyle choices in broad contexts such as diet and exercise, and avoidance of behavior or situations with a demonstrated deleterious probability, such as alcohol or smoking. 

In the Age of the Internet, there is a great deal of information available. Unfortunately, the Internet is so full of information, that finding appropriate and succinct information can sometimes be challenging. Stanford University recently issued a report that concludes there is untrue information on the Internet, no surprise (how do I get funding for my own study?). But even some of our best and brightest have trouble recognizing bias, or are "duped by sponsored content." Seemingly, if people are duped when they are at their best, they might be more susceptible to being mislead when under emotional strain that accompanies physical injury or illness?

The primary source of information for patients, however, is the physician, particularly the "primary care" physician. Patients have reported frustration at the volume of information received from their physician. And, their perceptions include complaints of (1) a lack of information provided, (2) a failure to understand or remember the information provided, or (3) a combination of the two. Patients have been documented as perceiving their physician's communication skills as lacking. Patients are not faulting their own listening skills, but their physician's speaking skills. 

The MNT suggests that communication skills training for physicians could be of benefit in changing this dynamic. It cites data supporting that doctors with such training have demonstrated a patient "adherence to treatment" rate that is "1.62 times higher than among patients of doctors without training." Patients whose doctors are trained communicators follow instructions better. The focus of this communication skills training is predictably two-fold, focused on both effectively conveying information and equally important the critical task of listening actively to the patient, and thus understanding their perceptions, concerns, and overall comprehension of their situation. 

What impacts patient understanding and compliance? Some suggest that when a patient is provided information is important. They encourage the physician to consider whether the patient is "ready to understand and absorb the information?" It is also likely important how often the patient is provided with information. Repetition can be important in retaining information. We all seem to have a natural tendency to remember things that are repeated often. Sometimes that may be positive, but unfortunately repetitive disinformation may have a significant and similarly effective negative reinforcement.  

MNT suggests that the physician's engagement with, and empathy for, the patient affects how communication from the physician is received and processed by the patient. It cites multiple examples of positive patient reaction to information delivered with consideration and genuine concern, both in comprehension and retention. 

So, physicians will be more successful with well-timed, empathetic, and repetitious communication. And, communication training can enhance their communication delivery capabilities. But, this affects only half of the equation. The patient must be ready to receive and process that communication. Patients must be active listeners also. While physicians can affect that with timing, empathy, and repetition, the patient must still be able, willing, and prepared to receive. The best radio broadcast process is of little value if people lack functional radio receivers.  

The receipt and processing of information is referred to as "activation." Patients with "low activation" may ask fewer questions in the clinical setting. It is estimated that a significant volume of patients suffer from "low activation," for whatever reason. They may be unready to receive and process, that is the timing may be wrong. This may be because of focus on other life issues, focus on primary diagnosis, focus on treatment details, or the simple fact that new and unpredictable situations (the aftermath of an accident) are inherently stressful and therefore probably confusing and frustrating for even the best listener/patient. 

MNT suggests longer patient interaction, that is longer physician consultations. Some physicians are said to offer "double appointments," a more complex interaction with patients, in furtherance of this. There is the suggestion that physicians can enhance care by recommending "reliable sources," of information, thus facilitating patient access to information that is less likely to be "sponsored content" (websites paid for by a party with a financial interest in selling some good or service) or otherwise inaccurate. A patient might be directed, for example, to the web resources of the American Diabetes Association, instead of being left to the mercy of whatever Internet sites a particular browser produces in response to a general query on diabetes. 

As with many issues in life, professional and personal, the critical point in communication is perhaps fairly simple. Recognizing that there is a problem. When patients and doctors understand that communication is a skill, that it must be appreciated, learned, and practiced, then both can become better at it. With enhanced communication skills on both sides of the conversation, patient care can be enhanced. 

Physicians can be trained, reminded and encouraged to both effectively deliver information and actively listen. Patients can perhaps less readily be trained (by the time they know they will be a patient it is too late to train, and until they are a patient, they have little motivation to be trained). 

But, perhaps there are other ways to overcome potential patient deficits. I have been involved with some very skilled nurses and case managers who accompanied accident victims to doctors' appointments. They were adept at retaining and reiterating information for injured workers. I have seen instances in which spouses and other family members successfully fulfilled a similar role in care and treatment. They can perhaps be a less-stressed set of ears, a dispassionate note-taker, or possibly ask some pointed clarifying questions. 

The point of medical care is recovery when possible, prevention of further decline or complications, and alleviation of symptoms. Those engaged in care must appreciate that patients may not be ready for information, may not understand information, and may simply forget information. Patience, repetition, and empathy may be the keys to overcoming those communication challenges and to the success of the medical care process. And, some may need help from a third person to assist and facilitate the communication process. 

The Successor Judge

A 1989 Florida divorce case provides some guidance for lawyers who find their case assigned to a "successor judge." There, the former husband was challenging a final judgment of dissolution. Batista v. Batista, 553 So.2d 1281 (Fla. 3rd DCA 1989). Litigation can take time, and the reality is that people involved in litigation, adjusters, doctors, lawyers and even judges can come and go. Most attorneys practicing Florida workers' compensation will eventually litigate a case before a successor judge. 

The litigation process in Batista demonstrated neglect. Following the wife's petition for dissolution, the husband filed nothing for over one year. As a result, the wife moved for default, and a hearing was held. The husband, remaining consistent, did not appear for the hearing. The judge entered the requested default judgment. As an aside, ignoring litigation and missing hearings is usually not the way to win in litigation. 

After waiting for another six months, the husband moved to vacate the judgment, specifically seeking to "reduce the amount of child support awarded." The husband claimed he had been mislead, that both husband and wife had been represented by the same attorney, and that he was the victim of fraud. But, by the time the husband filed this motion for relief, "the original trial judge" was no longer on the bench, and the hearing on the motion to vacate the judgment "was held before a successor judge."

The successor judge "denied the motion on the grounds that a successor judge could not vacate another judge's final judgment and that modification was the proper remedy." There were intriguing arguments raised by both litigants, generally surrounding whether the husband was seeking a "rehearing" or a "modification." But, the successor judge concluded that, regardless of the procedural distinctions urged by the parties, "a successor judge can never reconsider a ruling made by his or her predecessor."

The appellate court noted that the Florida Supreme Court "expressly indicated that a successor judge is entitled to entertain a rule 1.540 motion." That Rule of Civil Procedure allows a "court" to address "clerical mistakes in judgments" and to do so "at any time on its own initiative or on the motion of any party." It also allows the trial court to "relieve a party" from a judgment or order for various reasons including "mistake, inadvertence, surprise, or excusable neglect," and more. The appellate court concluded therefore that the successor judge could hear the motion to vacate, and ordered that judge to do so. 

The reader may at this point voice two thoughts. First, the litigation of Florida workers' compensation cases is not controlled (in most aspects other than discovery) by the Florida Rules of Civil Procedure. And, second, that a dissolution of marriage case might not be viewed as very persuasive by a Judge of Compensation Claims who recognizes that her or his authority is limited to that which the legislature affords, see Conferring Jurisdiction. Two valid points for consideration and discussion. 

However, the Florida Supreme Court authority relied upon in Batista was a Florida workers' compensation case, Tingle v. Dade County Bd. of County Com'rs, 245 So.2d 76 (Fla 1971). There, the Supreme Court, relied upon the civil procedure rule and found it persuasive or instructive. While the Court might no longer find that rule applicable in workers' compensation, the arguments remain. And, the Court provided some critical guidance for both attorneys and judges:

There is a limitation . . . on a successor judge's reconsideration of his predecessor's Final judgments and orders, upon the merits on the same facts absent mistake or fraud and upon discretionary final rulings where the facts remain unchanged.

Those final rulings are not subject to reversal, modification or review by a successor judge, absent the grounds in Civil Rule 1.540. 

The successor does have authority even after final judgment to make such further order as may be necessary to effectuate the judgment.

Where the final order or judgment is not complete, the succeeding judge may supply the element which may have been omitted.

The Court provided this advice for judges: 

A judge should hesitate to undo his own work.

A Judge should hesitate still more to undo the work of another (the prior) judge

But, until final judgment, the judge has the power to do so and may therefore vacate or modify the Interlocutory rulings or orders of his predecessor in the case. 

The Court explained that these cautions, this "code" of behavior, are based upon

The law of the case 

Comity (courtesy and considerate behavior toward others), and

Courtesy.

With these cautions in mind, attorneys may wish to exercise restraint in asking a successor judge for such accommodating or relief. Attorneys may wish to think about what a reconsideration might change as to process or procedure, whether the due process rights of some party would be affected by a reconsideration, and whether there is sufficient grounds upon which the successor judge might be persuaded to exercise this discretion. 

Surgery could be b b b b b bad

A Texas story in 2017 documented a tragic situation in which Dr. Christopher Duntsch performed some surgeries. Several patients did not enjoy the outcomes they sought, two were rendered wheelchair-bound and others died. 

In May 2017, an ABC affiliate in Texas announced that another North Texas Orthopedic Surgeon Faces Lawsuits over allegations that "their lives have been ruined by a surgeon putting profits over patient care." These allegations concern Dr. Stephen Courtney, who is said to have attempted to "profiteer off Pennington" (now deceased patient) by using Dr. Courtney's own surgical implants during surgery. Those implants were provided by Eminent Spine, co-founded by Dr. Courtney; the "company slogan on the website video is 'Bad to the Bone.'"

Some will connect that to George Thorogood's 1982 single by the same name. Others may remember the cover by ZZ Top. In the 1980s, many sought to be "bad to the bone." Of course, only one of these has a Texas origin (ZZ Top), which perhaps integrates into this Texas-themed post better?

In Texas, another patient contends that he was provided surgery by Dr. Courtney before the recommended "six months of non-operative treatment." He alleges also that "supplemental fixation" was not used in that surgery, despite his belief that "FDA guidelines" recommend fixation so the approved hardware "won't slip." In short, he claims multiple deviations from appropriate care. 

There will always be people who are not satisfied with medical care received. For example, Medscape reports on satisfaction among people who underwent "total hip and knee" surgery. Though physicians report that "at least 85% of total hip and knee patients have had completely successful procedures," only about 80% of patients "say they're happy." Statistics vary across practice areas.

Similarly, The Daily Mail reports that one in five plastic surgery patients are dissatisfied. These are merely examples. The degree of satisfaction is also potentially in the wording used; "satisfied" and "happy" may be two different things. However, it appears supportable that some patients are not completely satisfied with their care.

Interestingly, the Texas patients that were not satisfied with surgery results sometimes acquiesced in further surgery with the same physicians to attempt alleviation of complaints. Bryan Taylor, who had surgery before the "six months of non-operative treatment," and had a device called "the Python" installed in his back, without fixation. With ongoing symptoms, he underwent a second surgery with the same physician, again without fixation. Later, Taylor allowed the same surgeon to perform a third unsuccessful surgery on his back. He ultimately came under the care of a different physician, who performed a fourth surgery to remove "the Python." Mr. Taylor is not the only patient who underwent multiple surgeries.

This may raise questions about surgery generally. But, there is a specific focus on surgery to install hardware licensed by or produced by the surgeon.

The ABC affiliate has reported that there is "a 2013 report by the U.S. Senate Finance Committee staff" that questions the appropriateness of physicians implanting "their own devices," a practice known as "Physician Owned Distributorships." The report contends that Physician Owned Distributorships "present an inherent conflict of interest that can put the physician's medical judgment at odds with the patient's best interests." Perhaps this could be better phrased as putting the physician's financial interest at odds with the patient's health interest.

A 2013 report of CBS This Morning referred to this practice as "surgeon salesmen." That report also alleges that "financial incentive caused" a physician to perform "a riskier procedure than necessary." The allegation is that this "riskier" surgery allowed him to "put in more hardware." That allegation involves hardware, but a similar complaint might be about surgery generally, which might be "riskier" than non-surgical intervention for maladies. Perhaps the risks associated contributed to the recommendation cited above for "six months of non-operative treatment?"

Surgery is prevalent in U.S. health care. According to Your Health, there are about 500,000 inter-vertebral disc surgeries in the U.S. annually. And, "as many as 90 percent are unnecessary and ineffective." Let that sink in a moment, 90% equals 450,000 allegedly unnecessary surgeries. According to an admittedly dated 1994 study, the rate of back surgery in the U.S. is "at least 40 percent higher than any other country." To Your Health reports that the least expensive of these surgeries are about $18,000 and the more expensive procedures range up to $44,000. Think about that, 450,000 surgeries at $18,000 each; that is at least $8.1 billion in back surgeries annually, which are allegedly "unnecessary and ineffective." So what, it does not work, but at least it costs a lot of money?

Returning to the Texas story, it notes that there are also even more serious allegations elsewhere. Patients in Wisconsin and California have alleged that a medical device company "knowingly produced and manufactured fake, knock-off implantable hardware" that was placed in over 100 patients. A current lawsuit alleges that patients cannot be sure that the implants in their bodies are not counterfeits. As bad as the success rate is with tested and licensed hardware being used, it is possible that results may be even less satisfactory when unapproved materials are used.

The prosecution in Texas will be interesting to watch. The physicians may be found culpable or acquitted. It is important to remember the old "innocent until proven" otherwise. But, it is also important for people to realize that there are dissatisfied patients out there. Many have recommended being wary of medical care and asking questions of a doctor recommending a procedure or course of care. Perhaps that advice is as apt, or more, when the care involved is surgery.

A patient can ask questions about surgery. What are the alternatives? What are the potential complications? How many of these surgeries have been performed (is it "new" and "innovative" or an "old standby")? How many procedures has the recommending doctor performed? What are the perceptions of patients to this recommended care (both in the nation and in this particular doctor's practice)? Will hardware or special equipment be used in the procedure? Does the recommending doctor have any financial interest in the equipment or hardware manufacture or design? Has the manufacturer of equipment, hardware or medication ever provided any gift or payment to the recommending doctor?

But, perhaps the most worthwhile step for a patient facing any course of care is the second opinion. The cost is simply not that significant. Even if payment is not covered by insurance, it may be worthwhile to schedule an appointment with a doctor not affiliated with the recommending surgeon. The patient should take the medical records and diagnostic tests to the second opinion. Ask about the recommended procedure or treatment, the success rates, complications, and your concerns. Make an informed decision about whether the proposed care is in your best interest. After all, the patient will be the one that must live with the outcome.

The Texas patients cited in these stories are not satisfied with their results. Some are now wheelchair bound and others have died. It is the patients who will live with the results of the medical care they underwent. Patients should ask questions and make informed decisions. It is entirely possible that what is advertised as "bad to the bone" might instead just be "b b b b b bad." (cue ZZ Top for closing the music). 

#workers compensation

#surgery

#second opinion

Florida Legislature Mandates Patient Convenience

Most Floridians will not have heard of Senate Bill 800 (SB800), which passed last spring (2017). But it is an important bill and potentially provides us important lessons. 

I have heard complaints about the frustration in obtaining medication through various workers' compensation systems. About a year ago, I wrote Pharmacy Frustration, in which a story about recurrent prescription frustration was highlighted. I have written about drug formularies and Prescription Cost Control. And this post is focused on pharmacy and an improvement brought to Floridians in the 2017 legislative session (without much publicity or hoopla). 

Much of the world we live in is about economics. Most people I talk to are oblivious that they are making economic choices in their daily lives. Oh, they get the money part, and whether they do or do not have enough money to do what they want. But economics is so much broader. When we decide we do not have enough time to watch a particular television show, because we "need" to clean the living room, that is an economic choice. It is supply and demand, too little time and therefore economic choices. 

Several years ago, I lectured a high school class on economics and value. I showed them pictures from my local grocery, paired together. One was of a pre-packaged steak, the other of some specially-prepared steak kebabs with the same meat, some vegetables, on skewers and re-packaged. One was of some sliced meat and condiments, next to another of pre-made sandwiches in the deli case. There were several other examples. My question for the students: "what are you buying in the kebabs and sandwich that you are not buying in the (less expensive)  composite ingredients?

It was a little frustrating. The class did not grasp the answer either easily or quickly. But they eventually came around. The answer is simply "convenience." You can buy ingredients and make food (using your time), or you can buy the food in a more convenient form and save yourself time. The downside is that this option will likely cost more money. An economic choice in which you decide whether you value your time or your money more highly in that particular instant. 

Multiple similar examples could be described, but space is limited. In short, every retail experience is offers a combination of product and service. Arguably, some retailers are majority service or majority product, but all contains some of each. Notably, service is a difficult sector of the economy. I have worked in the service sector for most of my life, and can vouch for the many challenges it includes. 

Returning to pharmacy, there is certainly a product element in medication. The patient is prescribed medication and we need to purchase it in our local community. They travel to a pharmacy. In Florida workers' compensation, the patient travels to their own choice of pharmacy. In other states, workers' compensation patients may be more limited, as recently described in a WorkCompCentral article about Louisiana. 

In this regard of pharmacy choice, Florida workers' compensation is perhaps becoming an exception, as pharmacy benefit management has come into vogue, and many group health carriers are limiting or specifically directing pharmacy care. So, when you purchase coverage from a particular health insurer, you may be forced by that contract to use a particular pharmacy. This kind of agreement delivers the pharmacy company a large and dedicated clientele, in exchange for which it delivers a lower-cost service to the insurance carrier. It is an economic decision about the patient, if perhaps not a decision of the patient. 

Of course, the patient retains some decision-making authority also. You decide from whom you purchase an insurance policy. Sure, purchasing an individual policy yourself, instead of buying the plan offered by your employer or organization, may costs hundreds  of dollars more. However, through such a policy you may have more physician selection, more access to various pharmacy, or other benefits. In deciding which coverage to purchase, you are making a cost-benefit decision, just as the carriers are making cost-benefit decisions in structuring their plans and setting prices. 

A complaint I hear about pharmacy comes from people who take multiple medications. I know one person who takes a daily pill that is filled in 30 day supplies, another that is filled in 90 day supplies, and yet another that is also filled in 30 day supplies. This patient has taken all three medications for years. And here is the rub, you might think that this results in one monthly trip to the pharmacy. No, in this instance, this results in at least two monthly trips to the pharmacy, sometimes three. 

You see, the prescriptions were not all instigated at the same appointment. None of us ever scheduled a doctor's appointment with the thought of making the appointment coincide with the monthly anniversary date of some existing medication. So, we visit the doctor, receive a script, and go pick it up at the pharmacy. Thus, patients end up, over time, with various prescription dates and therefore re-fill dates. 

Pharmacy managers will remind us that most scripts can be scheduled for home delivery and they tout the convenience. I have a friend that has been through many hoops with that, and has utterly failed to connect the Pharmacy Benefit Manager (PBM) and doctors on the "same page." Hours of phone work have resulted in success with mail delivery of one of several medications. Why not keep trying regarding mail delivery of the others, I asked. The response is simple, how many hours will be devoted, and will there be results. This is another example of consideration of your time, a cost-benefit analysis. This friend has given up and finds it less time-consuming (or time wasting) to drive by the pharmacy than waste hours on the phone setting up mail service options that have not born fruit. 

In a world in which customers have freedom to choose, customer service might reign. I know an elderly friend who consumes many meals at a local fast food provider, but persistently complains about the food quality. I asked one day, why do you keep going there. He answered, "they have great service and I enjoy the people." Service rules his decision to persistently eat food with which he is not impressed. The quality of the service drives his consumption choice (another economic decision). 

But in a world of PBMs and decisions made by others (such as your employer selecting health insurance to offer at an economically advantageous price), we may have less consumer choice. In that instance, the providers or pharmacy may feel they have less motivation for us to be satisfied. Let's face it, if your insurance carrier only allows you to use ABCXYZ pharmacy, you are going back there, and they know it. They may have little incentive for customer service or satisfaction. 

Into this mix stepped the Florida Legislature with 2017's SB800. This bill will:

require health insurers and health maintenance organizations, respectively, which issue or deliver certain policies or contracts to offer medication synchronization to allow insureds and subscribers to align refill dates for certain drugs at least once in a plan year.

See, the patient can now force the insurance company or PBM in Florida to make those refill dates line up. The patient described above with the two 30 day and one 90 day refills, will now be able to go to the pharmacy once month for refills, instead of two to three times. The patient will get some convenience from legislation. Convenience that competition might have brought, but which has required legislation due to the structure of our health insurance system. 

On the surface, this will likely seem a pleasant surprise from our legislature. Certainly, it will be a benefit for those who require multiple medications, particularly those for whom driving may be a challenge. In time, there is certainly the chance that PBMs and pharmacies will raise their price to accommodate for this mandated shift; more patient/customer convenience may mean less pharmacist convenience. As convenience shifts, the price point may also. 

Some will argue that the pharmacy suffers no inconvenience in this, but synchronizing will require personnel time. Time is money. That time invested in synchronization may be recouped by the pharmacy, as the result should be less customers to wait on (with the customer coming only once per month to be served, rung-up and bagged) instead of thrice. In the end, it may be that pharmacies will gain efficiency and save money through the legislative mandate. 

Time will tell whether this legislative mandate affects price. But, in the short-run at least, it appears likely to increase patient convenience. 

Eliminating All Bias

The Bond films are debated. Some see them as classics, others as celebrating a misogynistic attitude that is at best dismissive of women and some feel degrading and biased. More on that below.

In the deep past, 1983 to be exact, Sean Connery returned briefly to the role of James Bond in Never say Never Again. The movie is somewhat a remake of  a 1965 Bond film, Thunderball, in which the lead was also Sean Connery. Never was Connery's return to the franchise, following seven films featuring Roger Moore. It was a curious time for the series with a Connery lead interspersed by a second studio into the "Moore era" of Bond.   

Never introduced a new leader of the British security agency, whose title throughout the series is simply "M." The M character has featured prominently in various films. But the M in Never is a bit supercilious, and from some fan's perspective it was fortunate that this was actor Edward Fox's only opportunity for the part. That might be blamed on his acting or more likely the tripe Never dialogue that was written for the character.

In any event, the opening of the film centers on M concluding that James Bond has become complacent and needs to refocus on his health and physical prowess. In keeping with trends of the early 1980s, this "new age" M explains to Bond "Too many free radicals. That's your problem." What? "Yes. They're toxins that destroy the body and the brain, caused by eating too much red meat and white bread. Too many dry martinis!" M proclaims a new regimen of health for the hero. 

A recurring repartee of this film series occurs between M's secretary, consistently named Miss Moneypenny, and Bond. A most memorable exchange between them occurs as Bond exits M's office following the above-noted free radical discussion. Ms. Moneypenny asks if Bond has been given an assignment, to which he replies "Yes, Moneypenny. I'm to eliminate all free radicals." Affecting a serious facial expression, and obviously not understanding the term, Moneypenny replies ""Ooh. Do be careful." 

That exchange came to mind recently when I read in the June 15, 2017 The Florida Bar News that a new 12-point plan Aims to Eradicate Bias. Eradicate all bias? Ooh. Do be careful. There is indisputable documentation of prejudice and bias in the legal profession. But, despite that, female participation has been growing for years. And, according to the New York Times, in 2016 women were the majority of American law students for the first time. 

According to InfoPlease, Arabella Mansfield was the first woman admitted to practice law in America, in Iowa back in 1869. The first woman to graduate law school was in 1870, Ada H. Kepley, who graduated from the Union College of Law in Chicago. So women in the law is not new, and their presence is growing. The history of females in medicine is a bit deeper, with the first woman earning a medical degree, Elizabeth Blackwell, in 1849. Despite a reasonably long historical presence, there is still a lack of equality among genders in the American legal practice. 

When I attended law school decades ago, there were a great many women in my law school class. I hesitate to speculate as to number, but I perceived it as close to half. I have been taught woman law professors, worked for woman partners, been partners with women, supervised women attorneys, practiced before and worked with exceptional women judges, and interacted professionally with a variety of exceptional lawyers who were women. I would like to think that I am unbiased regarding gender. 

Having written the opening paragraphs of this post, it occurred to me that James Bond, though an iconic action figure of cinematic America, is not perhaps the best reference regarding women and bias. Female characters in Bond films have been given cliche names, and largely relegated to sexist roles and misogynistic characterizations. That has changed, however, with some very strong and capable female characters, perhaps best illustrated by the performance of Judi Dench as the head of MI-6, the same "M" character, beginning with Goldeneye in 1995, and continuing through eight films, ending in 2015.

Dench's "M" is a strong and capable leader. She is an analyst, is savvy, is worldly, and antithetical to a parade of earlier female Bond characters through the years. In the same spirit, characters like those played by Halle Berry and Michelle Yeoh, presented competent, strong and perhaps inspiring female roles. One might conclude that this iconic series of films evolved some with these characters. Some might also argue that there is room for improvement still. Perhaps there has similarly been progress for women in the practice of law, but we could all agree that likewise there remains room for much improvement?

The Florida Bar News article explains the working of a "special committee" focused on Gender Bias. After months of work, it has presented a "final report, with a dozen recommendations," focused on "a variety of gender biases, from pay inequality to lack of advancement to harassment." After investing hours in understanding the bias issue, the committee proposes 12 recommendations focused on the goal of eliminating bias. They are:

(1) A new subcommittee, the Women in the Profession Subcommittee, of the Bar’s Diversity and Inclusion Committee.

(2) CLE courses addressing gender bias topics

(3) "create and promote online “toolkits” that firms can use to identify bias problems and solutions."

(4) "review Bar rules to see if any additional rules or policies are needed and establishing a confidential means for lawyers to report instances of gender bias."

(5) "a reporting mechanism for individuals and small and large firms, with confidentiality protections for lawyers who are victims of gender bias."

(6) create a “blue ribbon” designation for law firms and other legal employers that show a commitment to diversity.

(7) develop "better information on compensation and promotion for women lawyers, family leave, and leadership positions occupied by women lawyer."

(8) "continue to recruit women for leadership positions in the Bar and encourage the same in voluntary bars."

(9) examine "law school activities that address gender bias and see what other state bars and private industries have done."

(10) "promote the advantages of maternity, paternity, and family leave."

(11) "continue the conversation with large and small firms and experts on eliminating gender bias"

(12) "search for services to add to its Member Benefits Program, such as emergency child care, that support family responsibilities of lawyers."

The report acknowledges that women have made tremendous strides in the legal profession. It notes that in 1970 about 3 percent of attorneys were women, which has since risen to about 36 percent. And, the female participation as law firm managers has increased, but median compensation for women partners has been documented in surveys as about 80% of the compensation for "male equity partners." 

Full time female attorneys overall demonstrate more progress with median earnings of about 90% of male attorneys, an improvement from about 78% in 2005. Certainly, the existence of inequity is troublesome, but the progress is also encouraging. The report notes that the Office of State Court Administrators documents that 39% of Florida judges are female, an increase from 29% only ten years ago.

Some Report statistics are not as encouraging. A notable number of women have left the legal profession. Over half of those "reported that it was due to either a toxic work culture, a job that demanded too much time, a job that was too stressful, work not being meaningful or not being able to do the type of work they want to do." That very broad litany of issues likely deserves greater attention and focus. Notably, I know of males who have left the profession citing some similar complaints. Do we know what those statistics demonstrate? 

I have known a fair few attorneys, male and female, that have departed firms over "toxic work culture." The complaint of work requiring "too much time" has likewise been heard from male and female, as has the refrain of "too stressful." And, as for the complaint of wanting more meaningful work, I have also heard that from a great variety of attorneys, male and female, young and old.

The Bar News reports that Florida Bar President Elect Michael Higer commented recently on the report and the proposals. He noted the professions has "come a long way" and noted advances in participation in practice, the bench, and the bar. He lamented, however, that "we obviously have a long way to go," and suggested that this recent report and its recommendations are the path forward towards greater gender equality. While acknowledging the gender focus of this study and report, he suggests that other bias could be eliminated, or perhaps at least ameliorated, by this new focus.

I have seen bias and prejudice in the perceptions of gender. I have had attorneys call me to complain about a judge's demeanor or hearing room behavior. Some of those calls have been about female judges. I have often asked in those conversations, how the complainer perceive such a statement or behavior as inappropriate.

I have sometimes pressed the point regarding how such behavior compares to male judges, such as "how is this different from the way judge ______ handles similar situations?" In some situations, I have been left with the distinct impression that some lawyers can perceive very similar comments or behavior as unremarkable from a male judge, but offensive or unacceptable from a female. It has surprised, when I reached that conclusion, how the complainer seemed unaware of the bias displayed in their perceptions and comments. 

Is it possible that our personal bias is not readily apparent to us? Can we remedy that by bringing bias to the fore in our own minds? Can we better detect and thereby remedy bias if we are all a bit more aware and a bit more conscious of the potential for bias?

The evidence supports that bias remains in the legal profession. To the extent we can all survive the coming revolution, and a legal profession remains after Ross and other platforms change our world, our profession needs to change. The bias needs to be eradicated, throughout. The approach currently underway is a good start, but is likely too limited in scope. I suspect that there are other bias issues that also deserve attention, such as race.

That said, Confucius is credited with the truth that "to move mountains one begins carrying away small stones." The Bar effort on gender bias is a start. Hopefully it will be a good start and we will all grow in the process of working towards the goal of eliminating all bias. I suspect that the goal of "zero" bias, though attainable, will be quite a challenge. But, without lofty goals, progress would be even more challenging. 

And, perhaps we can learn from the misogyny of Bond. Perhaps it is true that we can learn from both bad examples and good? I for one am impressed that The Florida Bar has begun the process, and I am hopeful that it both progresses and brings results. 

How can you be involved? I think a great start would be to read the final report, with a dozen recommendations. Then, decide how you feel about the recommendations, and question whether your own reactions are intellect or emotion. Then write an email to Michelle Suskauer, who is the Chair of the Special Committee or Bar President Michael Higer, and get involved with this important project. 

Judicial Transparency Advocated

WorkCompCentral reported recently that the Massachusetts Advisory Councils Want Slow-Acting Judges Disciplined or Removed. The Advisory Council issued a report that noted a decline in "cases entering the dispute resolution system," but a persistence of some cases nonetheless not being decided timely. The Council therefore recommended that "appropriate discipline measures, including the process of statutory removal” should be undertaken. 

The Council Report is an extensive 179 pages documenting the current status of the Massachusetts workers' compensation system. It describes their process for resolving litigated workers' compensation claims, which includes conciliation (mediation), conferences (informal pretrial hearings) and hearings. The 2016 report celebrates that many claims are resolved in Massachusetts at the conciliation stage. 

The report notes that 2016 showed a decrease in both the conference and hearing volumes. In Massachusetts, 21 Administrative Law Judges preside over workers' compensation cases. That is one ALJ for each 333,333 residents, compared to about 645,161 Floridian for each Florida Judge of Compensation Claims. 

The 2016 report stresses the need for "prompt adjudication of claims." To that end, it suggests Massachusetts needs "an efficient dispute resolution system." And, it says that measurement of timeliness is appropriate in measuring system success. The focus, it says, should be on the time "between the first hearing and the hearing decision." That is, the time from the trial to the order. The report quotes a Massachusetts statute that requires these orders "shall issue within twenty-eight days of the conclusion of the hearing.” In that regard, very similar to Florida's requirement that the trial order is issued within 30 days. The data collected by the Florida Office of Judges of Compensation Claims supports that this deadline is certainly attainable. 

The Massachusetts Advisory Council then provides anecdotal instances in which that deadline was not met. In one 2016 decision, the time between hearing and the written decision was "over three years." The anecdotal examples demonstrate "a problem with outstanding decisions." In an appellate decision, which in Massachusetts is from a Review Board, a judge noted that the delay had become "the paramount issue in this case," and lamented that "the harm they have suffered has been caused, or exacerbated, by the judge’s failure to honor the letter, and spirit, of the law.” That is an accolade that no judge wants laid on their doorstep; we are not here to let the system or the people down. 

The Council noted that other Review Board decisions have excused delay, concluding that 28 day "ideal unattainable," and noting the volume of responsibilities an ALJ has. The Council noted the difficulty of making decisions, and the process of examining records, weighing testimony and making credibility determinations. And, it noted that "more than three-quarters of all decisions issue within six months, and 95 percent are filed within one year."

Comparing this to Florida, our performance is somewhat more consistent. In fact, in 2016 the Florida Judges of Compensation Claims issued their trial orders within the 30 day statutory period 88% of the time. There have been years in which that performance exceeded 90%. And, the vast majority of those that remain beyond 30 days are entered within 90 days of the hearing. In fact, by the 90th day, 97.4% of cases have a final order rendered. See Florida Office of Judges of Compensation Claims 2016 Annual Report, page 36. 

In 2016, the shortest time between trial and entry of the final order was 0 days. and the longest was 278 days. So, Florida Judges entered 100% of trial orders in less than ten months, compared to Massachusetts judges with 5% of trial orders still pending a year after trial. And the individual times of each Florida Judge are reported annually in the OJCC report. The Florida statistics are transparent and readily available each November in a report filed with the legislature, governor, and others.

The Massachusetts Advisory council recommended that "the Senior Judge examine and define appropriate time frames in which to evaluate judicial performance." Furthermore, that "judges who fail to meet the performance levels of their peers be issued appropriate discipline measures, including the process of statutory removal." Fiscal Year 2016 Annual Report, Executive Summary, "Late Decisions," (pages of report are unnumbered). 

The recommendation of standards and transparency are laudable. It is appropriate for parties to learn the outcome of litigation as rapidly as practical. See A Simple Method for Expeditious Care. But, it is also the fact that delays can occur in issuing final orders, and some of those may well be beyond the control of a trial judge. There are several, but examples include the issuance of a stay of proceedings by a federal bankruptcy court, a judge's illness or injury, and in Florida the engagement of the Expert Medical Advisor statute. 

Any system for measuring performance should be transparent, meaning public, and defined. Such a system should also acknowledge that there are in fact good reasons which would excuse non-compliance in individual circumstances. And, such performance measurement should acknowledge that there is more to being a good judge than making the trains run on time, see The Devil is in the Definitions. However, I am proud of the fact that Florida judges enter those orders within 30 day of hearing in 88% of the cases. That is a great demonstration of dedication, public service, and effectiveness. And, I would posit that if that can be done in Florida, it can be done anywhere that judges decide it will be. 

Maybe that change can come to Massachusetts without the threats of "discipline" or "removal?" Maybe that change, timely orders, can come everywhere if judges just decide that it will be.

Follow Orders, or Seek Relief

The Florida Fourth District Court of Appeal recently rendered an interesting decision in Rosenwater v. Deutsche Bank National Trust Co., 4D16-4015 [June 21, 2017]. The focus of the decision is on a contempt of court order, it is interesting and instructive. Workers' compensation judges (JCCs) in Florida do not have contempt powers. I have heard some JCCs lament that fact, while many do not believe that such powers would be of much benefit to JCCs. 

Those who study the procedural aspects of contempt proceedings recognize why judges who do have the authority rarely use it. Contempt is used fairly rarely. The actuality of contempt is not what Hollywood has portrayed, and there are procedural steps required. In addition, it is reasonably rare that parties or attorneys allow themselves to behave in such a manner as to leave the trial judge no recourse except contempt. 

Rosenwater is a foreclosure action. There, an attorney was ordered to attend a case management conference (CMC). The order required personal attendance by the particular attorney, and clearly warned that failure to attend might result in sanctions. Over the years, I have seen a variety of JCCs enter similar orders for specific events, including mediations, motion hearings, and trials. 

The Rosenwater defense attorney failed to attend the case management conference. The judge rescheduled, and the attorney again did not appear. The judge therefore called the attorney on a speaker phone during that last hearing. After "resistance" from office staff, an associate of the attorney took the call and told the judge that counsel "did not feel the need to attend" the conference because he and opposing counsel had "worked out an agreed order." This seems to illustrate a judge's patience, rescheduling repeatedly, and then eventually attempting to proceed despite the non-appearance.

The Judge, on the phone call, "informed the associate that compliance with court orders is required." Eventually, the defense attorney took the call and verbally expressed his reasons for not attending as ordered:

1. He had worked out an agreement on the defendant’s pending Motion to Dismiss with [the bank]’s counsel and that [the bank]’s counsel was presenting the proposed order.

2. That he did not feel the case was in a sufficient “posture” to “warrant” a case management conference.

3. That he did not feel that CMC was worthy of having even coverage counsel attend.

4. That he essentially ignored the CMC order and had no qualms about ignoring the same.

The judge "then issued an order to show cause," which is basically an opportunity for an attorney or party to explain a failure or action, like not appearing as noticed/ordered. The attorney "responded to the order, 'sincerely apologizing'” and taking full responsibility. The attorney explained however that he believed his behavior to be reasonable in Palm Beach County when the parties have reached an agreement. He also explained that he was making an effort to save his client attorney fees. 

There was a hearing on the order to show cause, and the defense attorney pled no contest, "again apologized and testified that he was unaware the trial judge was placed on hold" (when he called during that last hearing). Counsel explained that "he had the utmost respect for judges and has never had a problem with any court proceedings in the 28 years he has been practicing."

The Judge "appreciated the apology," but "found the attorney guilty of direct criminal contempt for purposefully and willfully and with contumacious disregard to the court's authority ignore and willfully disobey a court order." The Judge also found support for his conclusion in the attorney's comments "that the posture of the case did not warrant the Court having a case management conference." As a side note, the way to express your opinion that a hearing is not required is to file an objection, not simply refuse to appear. 

Counsel was fined $500, and sentenced to "jail for 10 days, suspended." The attorney "moved to disqualify the trial judge from the entire case," which was denied, and the sanctioned attorney appealed the contempt decision and the Fourth District. 

The appellate court agreed with the attorney, citing Florida Rule of Criminal Procedure Rule 3.840(e). It says that “If the contempt charged involves disrespect to or criticism of a judge, the judge shall disqualify himself or herself from presiding at the hearing. Another judge shall be designated by the chief justice of the supreme court.” The Court concluded that the trial judge holding a criminal contempt proceeding, in this setting, was fundamental error. The Court ordered the case remanded for a new hearing on contempt before a different judge. That demonstrates one of the procedural aspects that may discourage contempt proceedings.

A similar contempt proceeding was reported by Florida Record earlier this year. That case involves an Assistant Public Defender and disclosure of some transcripts. The article explains that there is a process for responding to a judge's orders. It quotes attorney Dorothy Easley that "when a trial judge enters an order, the order is to be followed. If the order is in any way ambiguous, the solution is to ask the trial court for clarification. Not to exceed the order and hope the attorney’s interpretation was a correct one." That is very sound advice. By the same token, if a party perceives an order as inappropriate, the solution is to object and point out such infirmity. 

The same is true in workers' compensation proceedings. When an order is entered, compliance is required. An order is not a request. This is true whether the order says that the parties will come to a status conference, a mediation, a hearing, or a trial. And, when it says specifically who will attend, those persons are then under an obligation to do one of two things (1) attend, or (2) seek relief from the order by filing some sort of motion or objection, see Rule 60Q6.115. Ignoring the order, substituting your own judgment for the judge's in terms of whether a proceeding or your presence is actually necessary, is not the way to go. 

Florida workers' compensation judges do not have contempt authority. However, there are a number of other potential direct sanctions that might be discussed, including dismissal of motion(s) or petition(s), striking of defense(s), and monetary sanctions such as attorney's fees or costs. Before imposition of direct sanctions in workers' compensation, an order to show cause or a motion for sanctions is appropriate, Rule 60Q6.125. Mistakes are going to happen; when they do, and a sanction motion or order to show cause is issued, it is time to correct the mistake. That is generally not the time to "double down" on the behavior (refuse to get on the phone when the judge calls from a hearing). 

It is also worth considering that an attorney might see a complaint filed with The Florida Bar regarding disregarding an order. That action can be taken without any motion or "show cause" order. A lawyer is "a public citizen having special responsibility for the quality of justice," and "should be competent, prompt, and diligent," Preamble to The Florida Bar Rules of Professional Responsibility. Ignoring trial judge orders may not be seen as fulfilling any of these responsibilities. 

In the end, it makes sense to follow Ms. Easley's advice. If an order is issued, take it seriously. If there is disagreement with the order, take appropriate action by objecting/responding. If you conclude the order is inappropriate, and your attempts to have the trial judge address your concerns fail, seek appellate review. But, it is simply not advisable to simply ignore the order with which one disagrees. Ignoring the order may lead to further misunderstanding, and potentially to sanctions. It is not likely that ignoring the order will assist in moving the issue or the case forward. And in the end, the whole point of litigation is to move the issue forward, to resolution or adjudication.