Friday, December 11, 2009

Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In

Posted by Jeff Lipshaw

Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence).  Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.

Geoffrey I am prepared to expand the thesis.  I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point:  the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science.  The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in."  That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)

Let me bring this back to the practice of lawyering, rather than just the theory of law.  We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.”  I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills.  But it dawned on Img_dunhamlaura_smme (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering.  Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense).  As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in. 

The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice.  The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility:  it is not an appeal to justice; it is an appeal to authority with the patina of justice.  That’s what we teach first year lawyers:  how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity:  fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority).  Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts).  There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is. 

Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm).  That’s the quality that comes after first year doctrine, contract drafting, and deal skills.  It means somehow teaching the inside-out rather than the outside-in.  Now here’s the tough question:  what are the academic and professional bona fides for teaching that advanced course?

December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 18, 2009

Weight, Not Admissibility

The North Dakota Supreme Court has held that allegations that a psychiatrist who testified as an expert witness violated ethical precepts went to the weight, rather than the admissibility, of the evidence. The testimony was offered in a proceeding that involved the possible release of a sexually dangerous individual. The court concluded:

The district court did not determine whether Dr. Coombs violated the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, and we will not decide this issue for the first instance on appeal. Whether Dr. Coombs violated the ethical rules of his profession regarding conflicts of interest has no bearing on the admissibility of his testimony. Rather, infirmity in a psychologist's testimony affects the weight given his opinion, but not its admissibility.

The contention was the the psychiatrist had a conflict of interest as a result of his role as both treating doctor and expert witness. (Mike Frisch)

November 18, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

Liu and Michelson Complete Latest Survey on Chinese Legal Profession

Posted by Alan Childress

Sida Liu (Wisconsin-Madison [sociology]) and Ethan Michelson (Indiana-Bloomington [sociology and recently affiliated with the Maurer School of Law program in global legal professions, which also sports our coblogguist Bill Henderson]) have completed an exhaustive nine-year follow-up to Ethan's 2000 survey of the legal profession in China.  Results of the newest study are linked here.  Ethan reports, "Our preliminary findings clearly suggest that 'the more things change the more they stay the same.' ”  The report is in English and also Mandarin, entitled 关于中国法律服务工作环境的问卷调查.

November 10, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Interim Suspension Of Medical License Upheld

The Vermont Supreme Court rejected contentions of a medical doctor that his license to practice had been improperly suspended by the Medical Practice Board while charges of unprofessional conduct are adjudicated. The allegations:

On March 31, 2009, the State moved to summarily suspend [the doctor's] medical license based on a simultaneously-filed specification of charges containing fifty-five counts of alleged unprofessional conduct, a State investigator’s affidavit, and an exhibit consisting of [the doctor's] 2004 “letter of assurance” to the Board.  Based on a review of the medical records of ten patients, pharmacy records, and several interviews, the State alleged, in summary, that [the doctor] had repeatedly abused his authority by prescribing excessive quantities of powerful narcotics for patients without noting and copying the prescriptions in patients’ charts, conducting adequate medical histories and examinations, documenting the physical symptoms and medical bases for the prescriptions, considering indications of drug dependency and adverse side effects from the large quantities of narcotics prescribed, or accounting for the risk of drug abuse and diversion, all in violation of acceptable standards of professional conduct. 

 In addition, the charges alleged that [the doctor] had altered patients’ charts, failed to produce medical records requested by the Board, made material misrepresentations to the Board, and violated numerous provisions of an earlier letter of assurance to the Board.  The letter was the product of a State investigation, dating from 2000, into pharmacist reports concerning [his]prescriptions of large quantities of narcotics.  The investigation remained open, and in 2004 resulted in a detailed letter of assurance from [him] agreeing to several conditions, including promises to consult regularly with a New Hampshire-based anesthesiologist concerning the use of narcotics to treat pain; to accept no new patients likely to require treatment for chronic pain; to prescribe no Schedule II drugs for periods longer than fourteen days; to scrupulously maintain patient charts, documenting their diagnosis, condition, and the rationale for prescribing controlled substances; to retain copies of all prescriptions for Schedule II drugs; to require all patients being treated for chronic pain to enter into written agreements governing their receipt and use of prescriptions for controlled substances; and to promptly comply with all Board requests for records.

The court found that the preponderance of evidence standard did not violate the doctor's rights. (Mike Frisch)

November 10, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Saturday, November 7, 2009

A Fun Read

Jayanth Krishnan at Indiana (Bloomington) is expanding his ouevre of comparative legal profession studies with his latest on SSRN, The Joint Law Venture: A Pilot Study (here).  As with his other work, this one's an interesting (and, yes, fun) read.  Congrats, Jay!

(Posted by Nancy Rapoport)

November 7, 2009 in Comparative Professions, Current Affairs, Ethics, Law & Business, Law & Society, Law Firms, Professional Responsibility, Rapoport | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 20, 2009

The Twenty Percent Rule

The Maryland Court of Appeals has held that a proffered expert witness in a medical malpractice case was properly prevented from testifying at trial "when the expert devoted annually more than 20 percent of his professional activities to activities that directly involved testimony in personal injury claims."

The proposed witnessed had been educated in France and had practiced interventional neuroradiology (the area of practice at issue) for 45 years prior to his retirement in 2001. He had performed the medical procedure over 30 times, although the procedure is now done with a stint that the witness had never used. He testified that he is retained in 3-4 cases a year and devotes approximately 50 hours a year to expert witnessing. His only income is his expert fees and his pension. He testified that he devotes over 500 hours to professional activities such as reading journals, attending conferences, observing procedures and the like.

The court interpreted the so-called Twenty Percent Rule (which derives from a Maryland statute) to conclude (contrary to the Court of Special Appeals) that the witness may not testify. Activities are considered to be "professional" when the function "contributes to or advances the profession to which the individual belongs or participation in that profession." Excluded are activities "undertaken for personal or leisurely reasons." Reading, attending and observing does not count.

The rule "allows a qualified doctor to continue to utilize his or her expertise, but prevents him or her from launching a second career as purely an expert witness. The primary professional activities (at least 80 percent) must still be in the medical profession that he or she is professing."  (Mike Frisch)

October 20, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 7, 2009

New Institute on Law in Latin America and Related Civil Jurisdictions to Hold Conference in Madrid Nov. 11

Posted by Alan Childress

A prof of the law school of Monterrey Tech, Carlos Gabuardi (who is also a Tulane law grad with a PhD from us in comparative law), shown below with a hopefully wise Latina Justice, passes along this announcement of a relatively new Center and its second program to be held Nov. 11, 2009, in Spain.  Congrats, Carlos, and much success as the Director.  Here is an intro.

The Center for Legal Innovation, Development and Research for Latin America has been established thanks to the generous support of the Instituto Tecnológico y de Estudios Superiores de Monterrey (Monterrey Tech), through the Cátedra Eduardo A. Elizondo, and  the Spanish law firm Garrigues to the purpose of having a forum for discussing those issues that may have legal relevance for the Latin American region.

There are three concrete and interrelated actions, which are being implemented to this Object001 purpose:

     1.    Selecting 100 legal minds of the utmost prestige throughout Ibero-America, Haiti and Quebec (the Group of the 100).  This group of jurists shall be the heart of the Center for Legal Innovation, Development and Research for Latin America.

     2.    Establishing a web-based forum based upon an Internet portal with State of the Art technology for the permanent discussion of the initiatives generated within the forum by the Group of the 100.

     3.    Having an annual meeting of the Group of the 100 of the Garrigues – Monterrey Tech Center for Innovation, Development and Research for Latin America.

Further info on the Center is linked here in a Word document:  Download CENTER - 2009 doc.  And on attending the program in Madrid, just ask Carlos.  Contact info for Carlos Gabuardi is at this link, and his bio is here.

October 7, 2009 in Comparative Professions, Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 6, 2009

Call For Papers: Law & Society Ass'n in Chicago May 27-30, 2010

Posted by Alan Childress

Here is the Law & Society Association's announcement (and a link to conference info here):

Call for Participation --  Due Date: December 8, 2009

The 2010 Annual Meeting of Law and Society Association Thursday, May 27 through Sunday, May 30, at the Renaissance Chicago Hotel.

Theme:  AFTER CRITIQUE:  What is Left of the Law and Society Paradigm?

Born out of disillusionment with the failures of liberal legalism to deliver social justice or equality, law and society scholarship at the time aimed to expose those failures and challenge liberal legalism’s legitimating premises. Twenty years after the founding of LSA, during the decade of the 1980s, the critical impulse of law and society scholarship was itself put under the microscope by some who turned critique inward, calling out law and society scholars for embracing empty empiricism or for their complicity with legal and political elites. In this period, meta-debates raged over theoretical, methodological, and political questions.

More recently events in the academy and the world seem to have squelched our appetite for critique either of the legal order itself or of the premises and purposes of our own scholarship. In an era when the rule of law has come under sustained attack, can we go beyond celebrating it and allying ourselves with its projects? At a time when there are no dominant theoretical or methodological perspectives in the academy, should we turn away from epistemological questions and just get on with our work?

The theme of the 2010 LSA Meeting–After Critique–invites us to consider the law and society enterprise today and to think about its future direction. We want to reflect on the various ways that law and society scholarship has been and should be engaged with the threat of terrorism and governmental responses to it, national and global attacks on the rule of law, questions of sovereignty and sovereign prerogative, the contemporary situation of identity politics, and the collapse of the global economy and the crisis of neo-liberalism.

This year there is a new option:  the Work in Progress Paper.  For info on this and any other question, contact Judy Rose.

October 6, 2009 in Comparative Professions, Conferences & Symposia, Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, August 28, 2009

No Tort For Truth

A tenured Spanish professor at Creighton University was the subject of a sexual harassment complaint filed by a junior colleague. The evidence consisted primarily of email exchanges between the two in Spanish and Catalan. The parties differed on the proper translation of the emails. The school's sexual harassment committee found merit to the complaint and placed the accused on probation with a counseling requirement.

The professor then sued the complainant for tortious interference with a business relationship. The Nebraska Supreme Court affirmed the dismissal of the lawsuit, finding that there was sufficient evidence that the complainant told the truth. There is no tort for truthful disclosures.

The emails are set forth in the court's decision, along with the court's view that the Spanish Department was a place where people did not work well together: "It is apparent from the record that the faculty in the Depatment did not get along with one another."   (Mike Frisch)

August 28, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 25, 2009

Subpoena For Patient Records Upheld

The New York Appellate Division for the First Judicial Department held that the State Board for Professional Medical Conduct had sufficient evidence to issue a subpoena for a doctor's records of nine HIV patients. The court further concluded that steps to protect confidentiality were appropriate:

In recognition of the need for confidentiality in this matter, any disclosure order must provide for redactions of material that is not necessary for the conduct of the investigation and must otherwise comply with § 2785(6). At this preliminary stage, the redacted material would include the names and identifying information of the patients whose files are sought (their files can be identified by code), as well as the names and identifying information of other individuals whose names might appear in the file. We caution, however, that the redaction of the names at this stage of the investigation should not be construed to mean the names are to be permanently redacted. There may be a point in the future when the needs, or the results, of the investigation warrant disclosure of certain identities to the OPMC by court order. Respondent also proffers no reason why personal information such as sexual history should be disclosed.

Furthermore, notwithstanding the apparent anomaly in the statute and because the records now are being provided by court order in response to a motion to compel, we direct that each of the nine patients whose files are being sought shall be given the opportunity before the court to submit any objections to the release of certain information in his or her file, and to request appropriate redactions. In weighing such objections the court must be mindful to balance the patients' privacy concerns with the nature of the investigation itself, which involves serious allegations.

(Mike Frisch)

August 25, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Saturday, August 22, 2009

More from Paul Lippe on the Future of Law Schools

Posted by Jeff Lipshaw

Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back.  Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:

* * *

Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.

The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.

That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.

Continue reading

August 22, 2009 in Comparative Professions, Law & Society, Law Firms, Teaching & Curriculum, The Practice | Permalink | Comments (4) | TrackBack (0)

Tuesday, August 11, 2009

Board May Review Portions Of Credentialing File

The Massachusetts Supreme Judicial Court remanded a case involving possible misconduct by a physician. The issue related to access to the physician's credentialing file, which the Board of Registration in Medicine had sought but the trial court had held was protected by privilege.

The relevant facts:

Following a patient complaint, the disciplinary unit of the board initiated an investigation of Dr. Doe. In the course of the investigation, the board "developed information" that suggested that Dr. Doe "fraudulently procured renewal of his medical license by failing to report criminal charges on his license renewal applications," and which "requir[ed an] investigation of whether Dr. Doe has practiced medicine while the ability to practice medicine is impaired by alcohol or drugs." Pursuant to statutory authorization to compel document production "at any stage of an investigation," the board issued subpoenas to each of the hospitals on February 13, 2007, seeking documents related to Dr. Doe's credentialing, employment, and competence to practice medicine, as well as incident reports and complaints related to him.

Hallmark Health Corporation is the parent of Hallmark System, Inc., a licensed hospital facility whose "campuses" include the former Melrose-Wakefield and Lawrence Memorial Hospitals (collectively, Hallmark). The information sought from Hallmark by the board is located in Dr. Doe's credentialing files, which Hallmark maintains pursuant to the requirement that all hospitals have a "qualified patient care assessment program" (QPCAP) to address, among other things, the credentialing of medical staff members. Under Hallmark's medical staff credentialing policy, physicians seeking clinical privileges at Hallmark must apply for an initial appointment and must apply for reappointment at periodic intervals no greater than two years thereafter. An applicant for an initial appointment must provide, among other things, information about prior education, training, experience, and licensure, as well as potentially negative information, including whether the applicant has ever been a criminal defendant, lost a professional license, had clinical privileges withdrawn, or been involved in any professional misconduct proceedings. For reappointment, an applicant must provide, among other things, information about compliance with Hallmark's rules, continuing qualifications, pending malpractice challenges or challenges to licensure, and any limitation, reduction, or loss of clinical privileges. In addition to information supplied by the physician, any incident reports or complaints involving the particular physician become part of the physician's credentialing file. (citations omitted)

The court held:

In determining whether a medical peer review privilege applies in a particular circumstance, we look to "the way in which a document was created and the purpose for which it was used, not ... its content." Carr v. Howard, supra at 531. Therefore, the proper inquiry as to whether a document qualifies for protection under § 204 (a ) is whether it was created "by, for, or otherwise as a result of a 'medical peer review committee.' " Miller v. Milton Hosp. & Med. Ctr., Inc., 54 Mass.App.Ct. 495, 499 (2002). Under that formulation, while the work product of the various committees involved in credentialing at Hallmark--e.g., minutes from meetings, reports, or recommendations generated by or for the committees--are protected by § 204 (a ), documents used by such committees are not necessarily similarly protected. See Carr v. Howard, supra at 522 n. 7 (asserting privilege of § 204 without reliance on § 205 requires evidence that materials sought "were not merely 'presented to [a] committee in connection with its proceedings,' ... but were, instead, themselves, 'proceedings, reports and records' of a peer review committee under § 204 [a ]" [emphasis in original] ); Beth Israel, supra at 183 ("Section 204 does not protect information generated by other components of the QPCAP system or the 'raw materials' relied on by a [peer review committee] if obtained from other sources").

We remand the case to the Superior Court for an individualized consideration whether each of the documents listed on Hallmark's privilege log is protected by either § 204 (a ) or § 205 (b ), bearing in mind that the burden is on Hallmark to establish that each document is privileged.

The case is Board of Registration in Medicine v. Hallmark Health Corporation, decided today. (Mike Frisch)

August 11, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Sunday, June 21, 2009

Reciprocal Discipline For Nurses

The full Massachusetts Supreme Judicial Court rejected as premature a nurse's objections in a reciprocal discipline licensing proceeding. The opinion:

In a reciprocal discipline proceeding, the Board of Registration in Nursing (board) indefinitely suspended Penelope Lankheim's license to practice as a registered nurse in Massachusetts. That proceeding was based on Lankheim's voluntary relinquishment of her license after disciplinary proceedings in the State of Florida. Lankheim sought judicial review in the county court...[a] single justice of this court ruled that the board was authorized to impose reciprocal discipline based on Lankheim's voluntary relinquishment of her Florida license. However, he remanded for "reconsideration of the question of sanction without regard to the vigor with which Lankheim opposed the existence of discipline in Florida." Lankheim appealed to the full court.

The board has moved to dismiss the appeal on the ground that the single justice's decision was interlocutory. It is well established that, in an action seeking judicial review of an administrative agency's decision, no appeal lies from a decision of the trial court remanding the matter to the agency for further proceedings where "the administrative tribunal has choices to make about the result, in nuance and fundamental conclusion." "An order of remand ... is ... not final, particularly when the operative verb in the order has been 'reconsider.' " Lankheim argues that the order of remand is final and appealable because the board's discretion is limited in that it may no longer consider one of the aggravating factors on which it relied. However, Lankheim misstates the principle on which she relies: a judicial order remanding a matter to an administrative agency may be deemed an appealable judgment when "the administrative body [is] given no discretion, being ordered to decide the matter in controversy in a manner specified by the court." The single justice's order of remand did not direct the board to impose a particular sanction on Lankheim. The order merely removed one factor from the board's consideration and left the board with ample discretion to evaluate the remaining facts and circumstances in the case. Accordingly, Lankheim may not appeal from the single justice's order remanding the matter to the board for reconsideration of the appropriate sanction, as it was not a final judgment. (citations omitted)

The case is Lankheim v. Board of Registration in Nursing, decided June 19. (Mike Frisch)

June 21, 2009 in Comparative Professions | Permalink | Comments (1) | TrackBack (0)

Monday, May 4, 2009

Executions And Medical Discipline

The North Carolina Supreme Court has held that a statement from the Medical Board condemning the presence of a physican at an execution was properly enjoined. Physcians may be present without threat of disciplinary action:

This case presents four issues: First, whether a justiciable case or controversy exists between plaintiffs and the Medical Board; second, whether any such case or controversy is ripe for decision; third, whether the trial court impermissibly made a finding of fact without accepting evidence from defendant; and fourth, whether the Position Statement [of the Medical Board] is inconsistent with the manifest intent of the General Assembly in enacting N.C.G.S. § 15-190, which requires a physician to be present at all executions. We hold that plaintiffs have standing, that this case is ripe for decision, that the trial court did not make an improper finding of fact, and that the Position Statement is inconsistent with N.C.G.S. § 15-190. Accordingly, we affirm the order of the trial court.

The Medical Board had issued the Position Statement in which it had concluded that a physician's participation in an execution by lethal injection was a departure from the ethics of the medical profession. The court's majority concluded that the legislative mandate that a physician be present trumped the authority of the board to impose discipline:

 ...the General Assembly has specifically envisioned some sort of medical participation in the execution process, and defendant's Position Statement runs afoul of N.C.G.S. § 15-190 by completely prohibiting physician participation in executions. While defendant would retain disciplinary power over a licensed medical doctor who participates in an execution, see N.C.G.S. § 90-14, defendant may not discipline or threaten discipline against its licensees solely for participating in the execution alone. To allow defendant to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.    Moreover, the language of the Protocol itself, as submitted by the Warden and approved by the Governor and Council of State does not overstep the statutory authority of those officials to determine and approve the exact means of execution. Exceptional care was taken when drafting the Protocol to ensure that it would not cause a physician to violate the Hippocratic Oath. Under the Protocol, the physician is not required to administer the lethal agents, nor is the physician required to do anything other than “monitor the essential body functions of the condemned inmate and [ ] notify the Warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering.” The physician is given authority in the Protocol to ensure that no undue harm is inflicted on the condemned inmate: if the physician determines there is undue pain or suffering, “[t]he Warden will then stop the execution.” Certainly, the Protocol's requirement that a physician help prevent “undue pain or suffering” is consistent with the physician's oath to “do no harm.” The Warden is well within his authority to require such monitoring, and defendant is without power to prevent the Warden from doing so. Defendant's assignments of error are overruled.

A dissent:

 Because I believe that changes in statutory language and definitions are fundamentally tasks for the legislature, not the courts, I respectfully dissent. Here, the General Assembly has given defendant, the North Carolina Medical Board, broad authority to discipline physicians, and in my view, the nonbinding Position Statement at issue comports with that authority. The Statement is also entirely consistent with the requirements of N.C.G.S. §§ 15-190 and -192, in that it indicates that a physician will not be disciplined for “merely being 'present' during an execution,” as required by the plain language of those statutes. Nevertheless, the majority's holding here oversteps our role by fashioning a definition of “present” that would create a conflict between two governmental entities where there currently is none. I would instead find that no genuine case or controversy appropriate for the courts exists between these parties.

(Mike Frisch)

May 4, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Thursday, April 30, 2009

Absence Of Malice

The New York of Appeals held that a defamation action against the New York Post was properly dismissed on summary judgment. The Post had reprinted portions of a lengthy article from the Los Angeles Times about a license revocation action brought against a medical doctor for alleged overprescriptions given to Ozzy Osbourne when he had a reality television show. The headline and a line of text inaccurately suggested that the license had already been pulled. The article also correctly stated the status of the matter.The paper had printed a clarification when requested to do so.

The court majority held that the plaintiff could not show actual malice as opposed to negligence. A dissent states:

The undisputed facts are reletively simple: The New York Post took a factually-accurate Los Angeles Times article, which stated that the California Medical Board had "moved to revoke" plaintiff's license, and rewrote the article to falsely state, iin the headline and in the body of the article, that plaintiff's license had been "pulled" and "revoked". In my view, these facts raise, at the very least, a question of fact as to whether the Post acted with "actual malice".

(Mike Frisch)

April 30, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 21, 2009

No Examination Required

The Washington State Court of Appeals, Division II, reversed the one-year license suspensions of three exotic dancers, concluding that the dancers had been denied due process. The conduct that led to the suspensions was described by the court:

On January 20, 2006, three Pierce County detectives participated in an undercover sting
operation at Fox's Adult Nightclub.  Brunson, Johnson, and Tucker performed lap dances for the detectives, touched the detectives, and received money from the detectives.  Two of the dancers allowed the detectives to touch them.  After the detectives received their dances, several police officers entered Fox's and arrested Brunson, Johnson, and Tucker for violations of the county code.  

The court did hold that exotic dancers are not considered professionals who are entitled to the same due process protections for license suspension as, for instance, doctors:

Washington courts have required the higher standard of proof in disciplinary hearings for
the following professions:  physicians, engineers, and nursing assistants. Washington courts have not decided, however, to extend the same due process guarantees to erotic dance licenses, which do not require any schooling or qualifying examination.  The dancers do not cite any authority showing that erotic dance licenses are professional licenses. 

(Mike Frisch)

April 21, 2009 in Comparative Professions | Permalink | Comments (1) | TrackBack (1)

Monday, March 30, 2009

Summary Medical Discipline

A doctor who had entered an Alford plea to charges that he had sexually assaulted a patient was found by the medical license board to have committed a crime involving moral turpitude. He contended, and the circuit court held, that he was entitled to a hearing prior to the imposition of professional discipline. On appeal, the Maryland Court of Special Appeals reversed and concluded that summary discipline was appropriate based on the plea. Although the judgment of conviction was vacated as a result of the sentence, discipline was linked to the guilty plea. The court further concluded that the crime was one of moral turpitude. (Mike Frisch)

March 30, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Monday, March 23, 2009

Bad Treatment

The Tennessee Court of Criminal Appeals held that a criminal defendant who had pleaded guilty to a number of charges including impersonating a medical doctor was not entitled to any relief from the sentence imposed by the trial court. The defendant had attended medical school in Grenada but has never been licensed to practice medicine in the United States. He was "assisting" his father, who was licensed and had a practice.

The defendant had treated a family that included a seriously ill teenage child. he had denied the mother's request for an ultrasound test and balked at referring the family to a real doctor. Eventually he acquiesed and the child was evaluated by a doctor, referred to Vanderbilt Medical Center, and diagnosed with bone cancer.

The defendant was sentenced to six years with all but nine months stayed and probation after serving the nine months in the county jail. He claimed that he should receive a fully probated sentence or diversion. The court here rejected both alternatives and approved the sentence imposed.

There appears to be a problem with the link. The case is State v.  Arellano aka "Dr. Chuck" and was decided on March 19. (Mike Frisch)

March 23, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2009

Study Abroad in Greece and the Greek Isles Via Tulane Law's Summer School, Including Class In Comparative Professions

Posted by Alan Childress

My annual reminder is, thankfully, still true in '09:  Tulane's summer school program to be held June 21-July 10, 2009, on the beautiful and car-free Isle of Spetses is still available for enrollment this month (the sooner the better).  Students from all law schools are welcome to study abroad with us (in English), not just Tulaners.  And there are openings in either of the Rhodes programs before and after Spetses, starting May 31.  Not too late to book a trip (search and attend one or more of the three-week sessions in these playful and historic islands.   

I teach "Comparative Legal Profession" in Spetses and have posted some pics on my website.  Here is the Spetses Hotel where the Spetses program takes place -- nicest people in the world. Its restaurant (meals are included) looks out on palms and sea. There are two bars, overlooking the sea and next to the private beach area.

If you go to the first Rhodos session as well, be sure to take classes from such teaching legends as Thanassi Yiannopoulos and Martin Davies.  In Spetses, book my 8:00 a.m. classBest_panorama (there is always siesta time later) or -- if you must -- a later one taught by such all-stars as Mark Wessman, Anastasia Alexiou, and Kathy Lorio.  Here are the faculty and all the courses.  The view from your room's balcony?  Shown right (click to enlarge).

March 5, 2009 in Comparative Professions | Permalink | Comments (2) | TrackBack (0)

Wednesday, March 4, 2009

State Must Prove Doctor Trafficked in Drugs

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio ruled today that, to convict a licensed health professional of trafficking in drugs under R.C. 2925.03(A), the state bears the burden of showing that a statutory exception for licensed health professionals does not apply by proving beyond a reasonable doubt that the defendant violated statutes or regulations that define the standard of care for dispensing controlled substances.

The Court’s 7-0 decision, authored by Justice Evelyn Lundberg Stratton, affirmed a ruling of the 2nd District Court of Appeals.

In 2004, Dr. William Nucklos of Springfield was charged with 10 felony counts of drug trafficking under R.C. 2925.03 for allegedly prescribing a prescription pain-killer drug to patients in an illegal manner. As a defense against those charges, Nucklos cited an exception in the drug-trafficking statute, R.C. 2925.03(B)(1), which provides that the criminal offense of trafficking in drugs “does not apply” to a licensed health professional who dispenses controlled substances as long as that person’s actions fall within the minimum standard of care set forth in specified sections of state law.

During Nucklos’ trial, the judge instructed jurors that they should consider the licensed health professional exception to the drug trafficking statute as an “affirmative defense,” i.e., that in order to find Nucklos not guilty based on that exception, they must find that Nucklos proved by a preponderance of the evidence that he acted within the minimum standards required by law. Nucklos was found guilty on all counts and sentenced to a total of 20 years in prison.

Nucklos appealed his convictions. Among other claims, he argued that the trial court erred in instructing the jury that he bore the burden of proving that his actions were lawful. The 2nd District Court of Appeals reversed Nucklos’ convictions and remanded the case for a new trial, holding that the licensed health professional exception set forth in R.C. 2925.03(B)(1) does not establish an affirmative defense that a defendant must prove, but rather establishes an additional element that the state must prove beyond a reasonable doubt when it pursues drug trafficking charges against a health professional. 

The state sought and was granted Supreme Court review of the 2nd District’s ruling.

Writing for the Court in today’s decision, Justice Stratton noted that under R.C. 2901.05(D) an “affirmative defense” applies where a defendant’s actions would normally constitute commission of a criminal offense, but the applicable statute provides “an excuse or justification peculiarly within the knowledge of the accused” that, if proved by the defendant, exempts him from criminal liability.

“Had the General Assembly intended R.C. 2925.03(B)(1) to be an affirmative defense as defined in R.C. 2901.05(D)(1), it could have stated that a licensed health professional who complies with applicable regulations is excused from criminal liability for trafficking in drugs, or is justified in distributing a controlled substances. However, it did not use either of these terms,” wrote Justice Stratton. “Instead, R.C. 2925.03(B)(1) states that the offense of trafficking in drugs ‘does not apply’ to licensed health professionals who comply with applicable statutes or regulations.”

“Physicians legally and legitimately prescribe drugs to treat their patients on a daily basis. To accept the state’s argument that R.C. 2925.03(B)(1) is an affirmative defense would place an unreasonable burden upon all doctors who prescribe drugs to prove compliance with statutes or regulations to avoid criminal liability for merely practicing medicine. We do not believe that the General Assembly intended to criminalize legitimate medical treatment. Rather, we believe that the General Assembly consciously avoided such an absurd result by stating that trafficking in drugs ‘does not apply’ to licensed health professionals who comply with applicable statutory or regulatory requirements.... Accordingly, we hold that proving a health professional’s compliance with statutes or regulations does not fall within the definition of an affirmative defense in R.C. 2901.05(D)(2) because it is not an excuse or justification, and proof of compliance is not peculiarly within the knowledge of the accused.”

Citing the U.S. Supreme Court’s 1970 holding in In re Winship, Justice Stratton concluded: “The state cannot convict a licensed health professional of trafficking in drugs under R.C. 2925.03(A) unless the licensed health professional has failed to comply with applicable statutory or regulatory requirements.  R.C. 2925.03(B)(1). Proving noncompliance is therefore necessary to prove the offense of drug trafficking when a licensed health professional is charged. ... Accordingly, we hold that a licensed health professional’s failure to comply with statutory or regulatory requirements is an element of the offense of drug trafficking that the state must prove beyond a reasonable doubt.”

The court's decision is linked here. (Mike Frisch)

March 4, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)