Tuesday, September 17, 2019

If You Could Change One Thing

I hear people periodically wax philosophically about what they would change in this world if they could. There are those who express such thought globally (end world hunger), or very personally (that sunspot on my nose). And, I have heard the question asked in the context of workers' compensation in a variety of venues, as a regulator, an adjudicator, an attorney, and just as an observer. That came back to me recently when an appellate judge in Kentucky expressed some views on workers' compensation in Zoeller v. Amazon, 2018-CA-001511-WC.

The decision was rendered on June 21, 2019, and the Court designated that it was "not to be published." This blog has previously discussed the practice of appellate courts precluding decisions from having precedential effect. See The Publication Distinction in Our Modern World.

The injured worker was disappointed that her claims were dismissed. She sought review by the Kentucky Board, which affirmed the trial judge. Kentucky is one of the states that has an intermediate administrative appellate process through which workers' compensation parties must progress before any review by a constitutional court. Ms. Zoeller, disappointed with the Board affirmation, therefore sought review of the Board's and judge's decision with the Commonwealth Court of Appeals.

The factual setting was not extraordinary. The claimant worked for the employer, Amazon, for about two and one-half years when she "felt pain in her neck and right shoulder" while moving boxes. She sought treatment, returned to "light duty" and then "regular duty work without restriction." Despite the release, one day she was "unable to complete her shift due to neck pain," and again sought care. 

Within a month she had left Amazon. Thereafter she worked in a few places "through temporary employment agencies." and "ultimately filed two claims for workers’ compensation benefits" from Amazon related to the shoulder and neck. When she testified, she admitted there was "no specific event (that) occurred," causing her to return for medical care again and then leave Amazon in 2015. 

The Court provided a summary of various medical records documenting complaints, testing, examinations, diagnoses, and assignment of impairment rating. This analysis included both the shoulder and the cervical spine. There were multiple physicians involved in Ms. Zoeller's care and treatment. The opinions that the various physicians expressed shared similarities, but also exhibited various distinctions. In other words, there were points upon which the various experts seemingly agreed and others upon which they did not. 

The majority opinion concluded that the "ALJ made thorough and specific findings regarding the evidence," including both "the medical and lay testimony." The judge concluded that Ms. Zoeller had "not borne her burden of proving that she suffered a work-related injury to her shoulder(s)." 

The Court noted that one doctor's opinions were "more persuasive to the ALJ because" the physician "went into detail to explain how she arrived at her conclusion as to causation." This was compared to another physician provided "conclusory statements as an explanation of a causative relationship," which were deemed "not as persuasive." The Court mentioned that the first physician "included in her explanation information from treatment records and reports, some inconsistent with one another." Credibility has been mentioned here before, see Experts and Credibility,  Arguments and Emotions, and Blindness blindness

The Court described how Ms. Zoeller, in her appeal to the Board, had "asserted that the ALJ overlooked evidence that supported her claim." But, the Court noted that the standard in appellate review is not that there is or is not contradictory evidence, but whether "the ALJ’s determination" was "supported by substantial evidence." Because there was evidence to support the ALJ's decision, the argument that there was contradictory evidence, The Court noted, was "moot."

The Court noted that Ms. Zoeller's "arguments simply ignore the discretion vested in the ALJ to weigh the evidence and determine witness credibility." It noted that it is possible for an employee to prove one part of a claim, "but fail to prove" another. The Court concluded that Ms. "Zoeller has simply not shown that there was evidence in her favor as to work-relatedness/causation that was 'so overwhelming that no reasonable person would fail to be persuaded by it."

One judge filed a separate opinion, a "concurrence," but noted she "would really prefer to dissent." The judge noted that the majority opinion of the court "is, no doubt, legally correct." Despite it being "correct," the concurring judge wrote to "protest the state of the law." This judge contended that there was "ample medical evidence in this record" that supported the worker 
"suffered a work-related injury, or at least an exacerbation of a pre-existing condition or of an age-related deterioration." 
The judge contented that Ms. Zoeller therefore "had to leave her job at Amazon."  As there was evidence that could have persuaded the trial judge, the "concurring" judge seems persuaded that the injured worker should prevail on her claims. The opinion seems to advocate for a process that is more deferential to evidence that supports a claim as opposed to a defense. 

The Judge took issue with the process by which there is a "finder of fact" that makes determinations as to which witnesses or evidence is most credible, logical, and accepted. She noted that in the America workers' compensation systems laws afford the finder of fact 
"virtually unbridled discretion to 'pick and choose' the evidence, quite often producing the untenable (but legally correct!) result that the beneficient purpose underlying the very genesis of the legislation is wholly undermined."
The judge essentially also laments that the law does not allow the appellate court to re-weigh the evidence; that it instead allows the finder of fact to decide "which evidence to believe." She takes issue with an outcome that fails to resolve the worker's "pain and incapacity to perform the job at Amazon." Judge Combs finds it "lamentable," that an Administrative Law Judge might accept the opinions of one physician (or witness) and reject the opinions of "four other examining physicians." In that phrase, perhaps suggesting that determinations should be more mathematical (four on one side versus one on the other leading to a decision for the position on which there are four). 

Judge Combs concludes that a system in which a judge can make such a determination, accepting one opinions and rejecting others, casts a system that was designed to balance interests of employees and employers into an "insurmountable burden of proof to the employee." Judge Combs advocates that the Kentucky Legislature should conclude that such fact-finding discretion has "emasculated that balanced and equitable legislative intent," and legislatively "correct this situation and restore equilibrium to the equation." Is it possible that what constitutes "equilibrium" of balance might be a subject upon which reasonable people could disagree?

This concurrence is an interesting analysis that casts criticism but proposes no solution. Judge Combs clearly rejects the process in which a trial judge makes determinations as to which witnesses are most credible. But, what system would the judge have the legislature enact in its place? If the Kentucky system is not "balanced or equitable," what alteration would render it so? Is it, perhaps, that the trial judge judicial discretion is "virtually unbridled," and some limitation on the discretion would bring about the outcome the judge wishes.

Or, would another solution be simpler? Perhaps the solution is that witnesses should explain both opinions and the facts that lead to them? Should the law be altered to force the acceptance of opinions that are "conclusory statements" that perhaps lack factual support and explanation? Should the law be altered to somehow imbue opinions with credibility despite not explaining information that is inconsistent or contradictory. In short, is the solution changing the law or for experts to better explain their opinions and the facts that support them?

What would you change, if you could change one thing?


Sunday, September 15, 2019

Blindness blindness

How do human memories work? a psychologist provides insight into "metacognitive illusions," and how our "perceptions and memories" work. There is a contention that people are unduly confident in their ability to understand and remember. Allegedly, "our intuitions about our own cognitive systems can be surprisingly unreliable."

Most will be familiar with the name Arthur Conan Doyle, the author that brought the world Sherlock Holmes. In addition to his literary pursuits, he "was also an illustrious paranormal investigator." In a recent article, the British Broadcasting Company (BBC) highlighted the success some had with deceiving him, contending Doyle "often failed to see the frauds in front of his eyes." The entire article is interesting, but particularly on how our brains process and store information. 

The author describes two instances in which Doyle was "hoaxed." The first is a somewhat famous instance in which he was deceived by some fake photographs, and later by a photographer who similarly produced fake photos before his very eyes. A second instance involved Doyle being engaged to witness a seance, at which he was mislead by slight of hand perpetrated by two magicians. In each instance, Doyle's acceptance of his perceptions was highlighted. 

The BBC author contends that some of Doyle's acceptance was attributable to a "will to believe." In the instance of the seance, Doyle reportedly even refused to believe he had been misled and fooled when the magicians repeated the trick demonstrating how it was perpetrated. He reportedly contended that the "reveal," which was afterwards staged to demonstrate how the hoax was played, was the trick and that the first seance he witnessed had been real. 

The BBC author cautions us against our memory, noting that many of us believe "memory works like a video camera accurately recording the events that we see and hear." Though he concedes that we are wired for such a belief, it is instead more realistic to view our memory as "processes of reconstruction, rather than one of reproduction." When we "remember an event," the process is "more like composing a story" than "replaying a video." And, since it is a "reproduction" the brain may "erroneously integrate imagined elements" into the reconstruction. 

Another point stressed is what the author refers to as "change blindness blindness." After reading the story, this reference reminded me of Luke 23:34 "Father, forgive them, for they do not know what they are doing." But, as I reflected upon the foundation of "blindness blindness," I sought out a long-remembered but less known quote "He who knows not, and knows not that he knows not, is a fool," Omar Khayam. That is also attributed by some to Confucious. The upshot is that being ignorant is one thing, but not knowing that you are ignorant is worse. 

The term "change blindness" is illustrated by the difficulty we experience in spotting differences in "a visual scene." Years ago, daily newspapers (the news was actually printed with ink on paper and delivered daily much in the way stories are now uploaded to the Internet) would print side-by-side frames of very similar pictures, and the entertainment value was striving to identify some set quantity of differences between the two. 

The BBC author contends that our human perception skills render the detection of differences difficult. It has been demonstrated scientifically, leading to the author's conclusion that "detecting changes" is difficult. When the scientific research was initially published, peer review was critical, concluding that the results of the research were "impossible." That "people could be change blind was so counter-intuitive that even visual scientists were inclined to doubt the reality of the phenomenon." But, in the roughly two decades since that initial reaction, "change blindness is an established part of cognitive psychology." 

But, that science has accepted it does not mean that you or I either recognize or accept it. In fact, the author contends that many of us are "ignorant of their change blindness." And, because we are, there are magicians and illusionists who are successful with tricks and deceptions. The author contends that despite the reasonably recent scientific acceptance of "change blindness," it is an essential underlying part of the history of illusionists. Our "blindness" to our own "change blindness" is thus referred to as "change blindness blindness," a label for our self-denial, conscious or not.

This does not mean that we are "broken" or that our "memory is 'flawed.'" What it means is that even the most sophisticated students of the human psychology do not fully understand the functions and processes of our brains. The contention is that our brains are confronted with "complex and confusing information every day," and our "cognitive system" has aptly adapted to interpret this information for us. The author encourages that we "appreciate the intricacies of human memory and perception, while considering the systems' limits and eccentricities." 

This recognition may help us to understand how multiple people can perceive some event or action and yet disagree with one another regarding details of what happened, how, or to whom. Perceptions might be different based upon the perspective or view of the person later relating their recollection. But, it is possible the person's description in recounting could be different from someone else's merely because of the phenomenon of "change blindness." And, because of "blindness blindness, they may not even be aware they are engaging in a "processes of reconstruction, rather than one of reproduction."




Thursday, September 12, 2019

Truth or Consequences

The Texas Fourteenth Court of Appeals recently rendered Redmond Legal Group v. Chatman and Mitra, NO. 14-17-00835-CV (August 27, 2019).It is not a workers' compensation case, but involves a dispute among lawyers regarding their representation of one of the parties and a subsequent conflict among themselves. 

Mr. Redmond is the owner of Redmond Legal Group, and he had contracted with Ms. Chatman and Ms. Woody for legal services. The dispute between these lawyers began in 2014 and was eventually set for trial in January 2016. However, within weeks of the beginning of trial, Mr. Redmond's attorney moved for a continuance due to Mr. Redmond's personal health. There was a "physician's letter" provided to the court in support of the continuance motion. 

The letter (referred to throughout as the "Hyber" letter) described a November 2015 injury "necessitating 'medical treatment and stay, and rehabilitative therapy . . ..'” It also noted that Mr. Redmond was "unable to travel until he is reevaluated and possibly released by me during his next visit in late January 2016.” The trial was continued. Months later, "Chatman and Woody moved for sanctions alleging the" medical excuse "was fraudulent and was submitted to delay trial and give Redmond more time to respond to discovery."

In December 2016, at a status conference, Mr. Redmond's attorney "informed the trial court that the" medical excuse letter "was 'false.'” Apparently, the letter "was not written by the doctor and there was no clinic at" the address stated on it. The trial judge inquired of counsel: “you are saying to me that this letter was presented to you by your client is a fraud?” To which Mr. Redmond's attorney reportedly admitted. The trial judge scheduled a January 2017 hearing to consider whether to impose sanctions. 

Following the hearing, the trial judge ordered Mr. Redmond to produce "the name of the hospital(s) that treated him for the alleged injury he suffered in November 2015," and his counsel was instructed to "obtain records 'from the identified hospital(s) in admissible form.'" The records were reviewed by the trial judge in March 2017 and the judge then "granted the defendants’ motion for sanctions and dismissed all of appellants’ claims." In the order, the trial judge found the medical letter "is fraudulent," and that it "and related claims of injuries suffered by Jerry Redmond were used to unnecessarily and unreasonably delay proceedings in this case . . .."

The trial judge further found that Mr. "Redmond's sworn testimony regarding the Hyber Letter during the hearing held on January 3, 2017, was not truthful." The judge concluded that Mr. Redmond "failed to fully comply with the Court’s orders made from the bench," and the "written order signed February 6, 2017." The judge concluded that "the Plaintiffs have abused or violated the discovery process, the Texas Rules of Civil Procedure, and the Texas Disciplinary Rules of Professional Conduct."

The Texas court explained the foundation of "sanctions" there, that a 
"sanction is just if there is a direct relationship between the offensive conduct and the sanction imposed and it is not excessive." 
For the "direct relationship," it explained the sanction must remedy "the prejudice caused to the innocent party." The second element is a constraint that the "discovery sanction imposed should be no more severe than necessary to serve its legitimate purposes." That is, "a sanction is excessive if lesser sanctions would have served the purposes of compliance, deterrence, and punishment."

The Court noted that before a dismissal is deemed appropriate, the trial court must have "considered the availability of lesser sanctions." There is a requirement that "lesser sanctions must first be tested to determine their efficacy" in all "but the most egregious and exceptional cases." The consideration of "appropriate lesser sanction" and "an explanation of the appropriateness of the sanction imposed” are required in the trial court's dismissal. 

The Court noted multiple examples in which dismissal had been upheld, including "a false affidavit of indigence," "manufacturing evidence related to damages," "destroyed audio tapes which went to the heart of the proof needed," "produced false contract documents," "testifying falsely and misleadingly," "committed perjury" and others. It concluded that the "trial court clearly had the discretion to sanction Redmond because of the Hyber letter, including the potential use of" dismissal. 

However, the Court noted that the trial judge's 
"order, however, does not state that lesser sanctions were considered, how the sanctionable conduct bore direct relevance to the claims of plaintiffs Redmond Legal Group, PLLC, and Jerry Redmond, Jr., or why fabricating and submitting the Hyber letter justified a presumption that the claims of plaintiffs Redmond Legal Group, PLLC, and Jerry Redmond, Jr., lacked merit."
The Court reversed the dismissal and remanded the case for "further proceedings."

This could lead some to conclude that the Court of Appeals condoned misrepresentation. But, the point of the decision is two-fold. First, that before imposing sanctions, judges should follow a set analysis of what sanction is justified by the complained of behavior. Second, the trial court has to take the time to explain the offense, the analysis of considering appropriate sanction, and the supporting facts or conclusions for the ultimate decision. 

The Texas Court of Appeals reversed because the analysis and supporting conclusions in this instance were not clear. That is a reminder as to process, not an endorsement of the complained of behavior. 

Tuesday, September 10, 2019

Courts and Safety

Some Canadian litigation recently came to light in the news. The Canadian Supreme Court has heard the petition of Bela Kosoian. Global News reports that She was in a "Metro station in the Montreal suburb of Laval in 2009." She was apparently using an escalator without holding the handrail when she was confronted by "a police officer" who "told her to respect a pictogram" and to "hold the handrail." Website TheCourt.ca notes that when arrested, Ms. Kosoian was 38 years old and declined to hold the rail because of "germs on the rail." 

Ms. Kosoian declined, explaining to the officer that she "did not consider the image . . . to be an obligation." A "pictogram" or "pictograph" is being used there to refer to a sign that conveys behavior, though those two terms may be less than descriptive. When asked, she also "refused to identify herself." The officer called for "backup" and Ms. Kosoian was "taken by force." She was later released after being issued "two tickets - one for $100 for disobeying a pictogram and another for $320 for having obstructed the work of an inspector" (likely the refusal to identify herself.

Ms. Kosoian proceeded to trial on the tickets and was "acquitted of the two infractions." She then filed a $45,000 lawsuit against the Metro, the city, and "one of the officers." A Quebec court dismissed the lawsuit, and an appellate court affirmed that conclusion. The appellate court "said Kosoian was the 'author of her own misfortune,'" essentially concluding she should have just grabbed the handrail when told to, or perhaps merely identified herself when asked. Some may agree with how easily she might have done so, others will be troubled with someone "taken by force" by multiple officers in response to refusing to identify oneself. 

Notably, the appellate court was divided. One Justice concluded that the police officer was "justified" to arrest her “because she had refused to identify herself.” Another concluded that an “honest but false belief” that the pictogram was some form of mandate did not "clear him (police) of responsibility." It might be that the justices were not even in agreement as to what issue should be decided? 

Ms. Kosoian then sought review by the nation's highest court. The Court's response, and resulting headline made this intriguing: "Supreme Court to hear case of woman arrested, ticketed for refusing to hold escalator handrail." The Supreme Court of Canada will decide whether the police office acted appropriately in enforcing a pictogram that encouraged or perhaps required holding the handrail.


In March 2019, the Court granted the Canadian Civil Liberties Association (CCLA) motion to intervene. In April 2019, the Court docket noted "Judgment under advisement." Ms. Zwibel, a director of the CCLA blogged on the case, asking "What Happens when the Police Arrest you for a Non-Existent Offence?" Ms. Zwibel describes that the police "arrested, handcuffed, and searched the backpack of Ms. Kosoian." She rather sarcastically describes Ms. Kosoian's refusal to provide her name as resistance, and noted that the police "giv(ing) her a ticket for her deplorable actions." 

Ms. Zwibel admits that the "facts sound trivial," and proceeds to outline the Supreme Court appeal as more fundamental. She describes four legal issues perceived as pressing: (1) "When does the law require you to provide your name to the police?" (2) "Can a pictogram form the basis of an offence?" (3) "What happens when the police arrest you for a non-existent offence?" and (4) should the police "bear liability when an error has been made in conducting an arrest?" Another blogger has characterized the police actions as overboard, asking rhetorically "Do cops in Canada bust into people’s houses to see if mattress tags are still attached?"

One perhaps wonders if a Canadian police officer might ticket someone for ignoring more generic signs like: "watch your step," "wet floor," or "do not touch?" I realize by this point that Statler and Waldorf may be asking once again "what does this have to do with workers' compensation." 

Of course, in a workplace there may be many warning signs. Since the creation of the U.S. Occupational Safety and Health Administration in 1970, there has been significant focus on workplace safety. And, that has produced results. in December 2018 IA Magazine reported that "fewer people are getting hurt." It quotes National Council of Compensation Insurance (NCCI) data supporting that workers' compensation "claims frequency" has demonstrated a "4% improvement . . . over the last 20 years." 

Some degree of that improvement may well be attributable to various pictograms and signs that have become commonplace in workplaces, including "hard hat area," "danger forklift trucks," "flammable material," "high noise area," biological hazard," or "pinch point." There have been many signs installed with more generic "caution," "danger" and "warning" messages. And, there are the even broader signs and pictograms that remind us daily to simply "think safety," or similar. 

Signs are not a panacea or "cure-all." It is likely that we all periodically ignore signs that encourage our attention to safety. Few drivers seem to obey the yellow highway signs of cautioning lower speed on a highway off-ramp. Perhaps such warnings are good for everyone to consider, but not so enforceable upon us all? That may be a question answered by the Canadian Supreme Court. Can a pictogram be enforced? Is there a foundation for such a prosecution? 

But, the realm of safety in the workplace is not criminal. That plethora of signs and rules in the workplace is not a foundation, at least as yet, for criminal prosecution of workers that fail to obey safety rules. However, there are potentials for penalties to be imposed upon employees that act in an unsafe manner. Somewhat counter-intuitively, there are fault penalties in these "no-fault" systems in which we labor. 

One provision in the Florida law is the "safety device" provision found in section 440.09(5):
"If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent." 
Thus, there may be financial penalties associated with the "knowing refusal" of either safety equipment or safety rules. There is that "brought prior to the accident to the employee's knowledge," clause that may make us think of a sign or pictogram that reminds and informs of "hardhat," "do not enter," or other rule. 

Obviously, there is benefit to safety rules and to our awareness of safety. We are appropriately encouraged to take care and to be vigilant. If there is an accident, there are a variety of potential outcomes in the analysis of who will pay, but in the end Someone has to Pay, whether that is a financial or physical suffering. In American workers' compensation, it is not uncommon for a jurisdiction to assign fault for failure to comply with safety rules.

In the Canadian situation, there are those who will agree with Ms. Kosoian, and perhaps others will agree with the police. Some will argue that there is clear distinction between financial loss in a workers' compensation setting compared to criminal arrest ("by force") and prosecution. Some will see a distinction in that there was no injury to Ms. Kosoian. If her refusal had resulted in a fall, closure of the escalator to everyone's inconvenience, summoning of a state-compensated ambulance and expenditure of universal medicine benefits, would some feel differently? Or, might some insist simply a rule is a rule?

In time, we will learn how the Canadian Supreme Court sorts out these questions. Many will continue to be amazed that such an issue ever reached a country's highest court. But, regardless of the details and the outcome, we can all likely agree that preventing injury is a positive thing. And, whether we obey them or not, perhaps it is in all of our best interest to at least strive to notice those prolific safety warnings with which we are forced daily to co-exist?


 

Sunday, September 8, 2019

Fundamental Right of Self-Determination

An opioid bill quietly made its way through the Florida legislature this year. House Bill 451 (HB451) passed April 30, 2019 and was signed by the Governor June 24. It adds a new subsection to section 456.44, Fla. Stat. regarding the prescribing of controlled substances. While there is often news in America regarding opioid constraints or complications, this law is about information and education. It became law July 1, 2019.

Of course, for the sake of Statler and Waldorf, the subject of opioids is always of interest in workers' compensation. Reports in publications like the Insurance JournalBusiness Insurance, and elsewhere provide overviews of opioid involvement in this particular community of injuries and illnesses. 

HB451 includes findings. In some, but not all legislation the Florida Legislature provides findings to express context for the law. It is a method of explaining why there is a perceived need for statutory action. The findings in HB451 are worth of note:
(1) every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to refuse an opioid drug.
By inference, there is likewise then a right to accept such a drug. In pursuit of more informed decisions in this regard, the Legislature instructed the Florida Department of Health to "develop and publish" an "educational pamphlet regarding the use of non-opioid  alternatives for the treatment of pain."

The purpose and point of HB451 is directed at affording the information and education a "competent adult" could use in making decisions about care and treatment. The law requires this pamphlet to include:
1. Information on available nonopioid alternatives for the  treatment of pain, including nonopioid medicinal drugs or drug  products and nonpharmacological therapies. 2. The advantages and disadvantages of the use of nonopioid alternatives. 
Most Florida medical providers must now "inform the patient of available nonopioid alternatives for the treatment of pain." These alternatives may include other "drugs or drug products," as well as:
"interventional procedures or treatments, acupuncture, chiropractic treatments, massage therapy, physical therapy, occupational therapy, or any other appropriate therapy as determined by the health care practitioner."
That last sentence is reasonably broad ("any other"). Whether any such procedures or treatments are efficacious for a particular patient will likely depend upon both the patient and the provider of that treatment. The Legislature is not mandating any particular modality or approach, but requires that patients are afforded the opportunity to learn and then decide, in most settings. This is an empowering paradigm that will require collaboration between professional and patient. 

The medical professional is required to "discuss the advantages and disadvantages of the use of nonopioid alternatives." The use of the word "discuss" is worthy of note. In It's About Communication, this blog discusses the importance of an interactive communication in litigation. The 60Q Rules require that, not a notification or directions, but a conferring. That is, a collaboration. 

If anything, such an interaction is more important in the analysis of a personal decision regarding medical care than it is in the legal practice paradigm. The new law requires a "discussion." This is not a place for a physician to merely hand someone a pamphlet or "fact sheet" that may or may not be read or understood. The conversation could include such a publication, but the professional shall "discuss" alternatives with the patient. Thus, the patient will presumably be engaged. There will be interaction, statements, responses, and questions. 

This should include subjects such as "whether the patient is at a  high risk of, or has a history of, controlled substance abuse or  misuse." It should include consideration of "the patient's personal preferences." And, it should include providing "the patient with the educational pamphlet" that is now required by law. Too often, we hear from patients that they do not perceive their medical care as being interactive. It may be that patients are under stress (fear, pain, etc.) and may tend not to recall interaction. But, it may also be that some medical providers are not interactive, patient, and conversational. 

Throughout, this post uses "most" professionals. It is noteworthy that the Legislature acknowledged that there will be settings in which such interaction and patient contemplation will be impractical. Therefore, if the physician is providing "emergency services and  care," this educational interaction or conversation is not required. Similarly, the law does not impose this obligation on pharmacists (it plainly says "excluding those licensed under chapter 465"). 

Thus, in legislation and law, there is a Florida requirement now that alternatives are identified and discussed with the patient. The statutory recognition of "self-determination" is critical and praiseworthy. Patients need to be involved in the process of deciding what is best in terms of treatment and care. It is likewise appropriate that medical providers educate and assist patients as they navigate what might be a diverse and complex variety of options. The treatment of any condition will be more likely to succeed if it is a collaboration between patient and doctor with each contributing to the ultimate outcome.  


Thursday, September 5, 2019

Dorian Passes and Reminds Us

On Tuesday, August 27, 2019 I began to worry about Tropical Storm Dorian. That was nine days ago and Dorian was projected to make landfall somewhere around Melbourne, Florida. It was projected to arrive in Florida on Sunday, August 31, 2019. Its development predicted to be nominal, it trajectory rapid. Simultaneously, there was relief as Tropical Storm Erin had formed and taken a northeastern track up the Atlantic. It is always a relief when these storms head out to sea. 



By Thursday, August 29, 2019, Dorian was a different picture. The storm had moved north of Puerto Rico and was now predicted to be a "Major" hurricane as it traversed the Atlantic. Landfall was still predicted to be around Melbourne, Florida (landfall predictions  vacillated). The storm was predicted to push inland from there. The five-day track published Thursday had the storm predicted to be a "hurricane" on Tuesday at 02:00 inland, in approximately Orlando. Thursday, Governor DeSantis declared a State of Emergency in Executive Order 19-189, for 26 counties, essentially the Florida coastline from Miami to Jacksonville. 

On Friday, August 30, 2019, Dorian was predicted to make landfall, still around Melbourne, but now as a Major Hurricane, and then to move up the coastline arriving in Jacksonville on Wednesday. That track prediction looked bad for Florida, but worse for the Bahamas, particularly for Grand Bahama. That island was projected to have the center of the storm present from Sunday to Monday. Governor DeSantis issued Executive Order 19-190 Friday, a State of Emergency for all the counties in Florida. 


And, the holiday weekend for many went from a three day conclusion of summer to a three day waiting game. The predictions and tracks continued. The projected path thankfully shifted from the Florida Atlantic Coast to a path offshore. The prediction of a Florida landfall as a Major Hurricane evolved into a path that had no Florida landfall whatsoever. There was relief and hope. There was also continued anxiety as millions of Floridians, all too experienced with these storms, watched the updates from the National Hurricane Center. Likely the only Floridians to be comfortably relieved at that point were in the panhandle. 

The panhandle, or at least a large portion of it, certainly deserve to be relieved. Hurricane Michael struck around Panama City less than a year ago. It was the strongest hurricane to make landfall in the history of recorded panhandle storms. The maximum sustained winds were 160 MPH, a Category Five storm. There were those who did not evacuate for Michael. There were perceptions that it would not be as serious as it ended up. People waited, and they watched. For some it was too late to leave by the time the gravity of the situation was realized.

The Michael devastation stretched from gulf coast into Georgia. There were significant impacts well inland, in and around Tallahassee. Almost a year later, much of the debris has been cleared, and the deer fence along Interstate 10 has been significantly repaired. But, the rest stop around mile 133, Cottondale, remained closed when I last drove through about two weeks ago. It has been almost a year, and the people of that part of the panhandle have not yet returned to normal. Their rebuilding may take years.

This morning, Dorian is a Major churning just off the coast of South Carolina. This time tomorrow, it is predicted to be a hurricane still and over North Carolina's outer banks. Many in south Florida are already engaged in what will undoubtedly be a herculean humanitarian effort on behalf of the Bahamas; others will join in that relief effort as normalcy returns here. That track for Grand Bahama turned out to be correct, although the storm moved even more slowly than predicted. That island survived an unprecedented and seemingly endless onslaught. It was the first time in my recollection that the National Hurricane Center labelled a storm "stationary."

It has been a long nine days in Florida. And, somehow it seems longer. These storms teach us that the weather professionals have become much more proficient and accurate than was my perception of them in my youth. The storm tracks at five days out are usually reasonably accurate, and they become increasingly accurate over shorter time spans. We learn of their accuracy as we deal annually with the potential for catastrophic weather; it is part of living in paradise. 

But, Dorian illustrates that these natural events are not subject to absolute prediction and definition. Just as Michael strengthened significantly and unexpectedly before landfall last year, Dorian altered course and did not make the initially predicted Florida landfall. These natural events can be studied and predicted, but there are no absolutes in prediction. The absolutes come only after. In some instances absolute destruction like Panama City, Mexico Beach, and Grand Bahama. In others, absolute relief as I have heard from some on Florida's east coast after the glancing blow of Dorian. 

Too often, our human nature causes us to believe that these storms will not be as predicted. As they approach, we often express denial (it won't really come here, won't really be that bad, etc). And, admittedly we have anecdotal experiences to which we can point. But, ultimately they are a threat Floridians (Texans, Alabamians, Mississippians, Carolinians, Virginians, Bahamians, you get the point) cannot ignore. We are well advised to be thankful when predictions such as the Dorian landfall as a Major are not fulfilled. But we are as well advised to remember the impact these storms can have. 

When the officials tell us it is time to prepare we should prepare. Each June, we should have our personal and business plans in place, having thought through what we would do to secure property and where we would go to evacuate. That planning should include young family members, and account for the elderly, pets and other potential complications. When officials tell us to evacuate, we should heed it. Not because the predictions are always right, but because when they are right the impact can be devastating. 

I will never forget Andrew. The parade of 2004 is likewise permanently fixed in my memory (Charlie, Francis, Ivan and Jeanne). Irma in 2017 seems like yesterday, as does Michael (in the words of Agent 86, I feel like it "missed me by that much"). Now Dorian joins that list of storms that I think I will never forget. It is a mixture of how bad storms can be and how lucky we can sometimes get. 

As I reflect this morning on the last nine days, I feel for those in the Bahamas and worry for those in the Carolinas. And, I am particularly thankful again for the thousands of professionals and volunteers that will flow into the aftermath as they always do. I reflected on that in Because We Need it They Will Come. The humanitarian response to these disasters illustrates the best in us. I was struck by the way social media came alive this week; Dorian had barely begun is turn north when Floridians began to gather material and other support for the Bahamas. It is a testament to who we are. 

If we are smart we will pay attention as storms threaten. If we are wise, we will remember that warnings and evacuation orders are for our own good. If we are honest, we will remember that predictions may not always be right, but they should be heeded anyway. And, if we are able, we should be thankful when we get lucky, remembering that there are usually those each time who suffer the impact, the damage, and face the long recovery. 

Tuesday, September 3, 2019

Personalized Medicine

In the 1989 Cousins, there is an exchange between Vince (Lloyd Bridges) and Mitch (Keith Coogan):

Vince: Can you keep a secret?
Mitch: Yeah.
Vince: So can I. 

The best way to keep any secret is likely to entrust it to no one. That exchange came back to me recently as I read Genetic Testing on the BBC. The BBC contends that genetic sequencing for the masses has arrived. It notes that "the first human genome sequence took 13 years to complete and cost around $2.7 billion." However, today individuals are having their personal sequence mapped for about $600. Some less sophisticated testing is being performed for only about $60.00. The result of the plummeting cost, it contends, is that "the era of personalised (sic) medicine draws closer." 

There are two aims of such testing. First, the origins and risks of various diseases can purportedly be isolated and studied across populations of patients. This may provide wide-population benefit in prediction, diagnosis, and treatment in general terms. But, the individual element may allow scientists "to create personalized medicine based on individuals' particular genetic quirks." That is, medicine designed specifically for one patient either in formulation or perhaps merely in dose. 

Credit is due to those that pioneered the genome mapping process. That certainly was significant work. However, it is likely that technology innovators and the development of artificial intelligence should also be acknowledged. As the BBC notes, the individual testing is resulting in "enormous datasets," called 'biobanks," and they are being analyzed and categorized by computers and artificial intelligence programs. 

There are three concerns with this testing discussed by the BBC: patient privacy, patient reaction to testing, and diversity within the results in these "biobanks." 

The individual mapping may reveal our deepest secrets, secrets that we likely do not even know ourselves. This could range from predisposition for certain maladies to the rate at which a particular person may "metabolise (sic) medicines." From diagnosis to how we might each respond to treatment, our genetic makeup may hold the keys to better medical treatment. If not "better," at least "better informed."

And, when we seek that knowledge for our own individual diagnosis or treatment benefit, the results may also become part of large studies or datasets that could be accessed in the process of diagnosing or treating others. There are those who may find that prospect disconcerting or concerning. That data could become accessible beyond our personal comfort. There are implications discussed in Science, the Right to Privacy and Big Brother

A second concern discussed by the BBC is more personal. It is entirely possible that one might live a lifetime with a "risk" of disease or malady and yet never develop that condition. While our genetics play a role in illness, there are also various lifestyle factors that may also play a role in various circumstances. The BBC notes that informing a patient of a "genetic predisposition" therefore necessarily "requires care." 

Because there is the potential for predisposition news to impact a patient, companies that perform this DNA testing are taking precautions in the process. There are specific disclosures and "informed consent," seemingly to prepare patients for the distinction between predisposition and actual disease potentiality or eventuality. And, there is a practice of confirmation of results through "a second (test) sample." 

The third concern is with the broader application of this technology. The BBC notes the claims of success in identifying predisposition. It notes, however, "a potentially serious problem is emerging." This is a concern with "disparities in health data," that result from a focus group that is genetically narrow. It turns out that most of the study that is ongoing is "disproportionately slanted towards populations of European descent." Thus, what is being learned is seen as too narrowly focused. 

The BBC quotes some involved in this testing phenomenon as suggesting that additional data from "non-Europeans" would assist scientists as it would provide data on "more variations" in genetic information. This seems to suggest that while there is benefit in larger groups of data, often the case in statistical analysis, there may also be benefit in the variety or diversity of the population of that data group. Thus, the criticism of too little DNA testing on non-European patients for inclusion in these data sets. 

The story notes that efforts to include "non-European" populations, including "African-Americans, Hispanic/Latinos, Asians, Native Hawaiians, Native Americans and others" has led researchers to note "27 new genomic variants associated with conditions such as blood pressure, type-2 diabetes, cigarette use and chronic kidney disease." Thus, the inclusion of increasingly diverse samples and results might be expected to result in greater opportunities for identification of variants and further the prospect of individualized patient care. 

Interestingly, the analysis of human DNA has previously yielded the conclusion that all humankind came from Africa. Discover noted in 2016 that We are all Africans. That article explained that from scientist's knowledge of origins gleaned from DNA significant conclusions were drawn. However, much of that data was again "mostly westerners and East Asians." Therefore, scientists found the data somewhat likely to provide recurrent results. That we all have some DNA similarity is not so surprising. That we have developed various differences and distinctions is perhaps more so?

A group endeavored to glean data instead from "more remote populations" in order to discern distinctions. From those distinctions, scientists hope to learn about "evolutionary history" of mankind since that origin in Africa. And, despite the success of their efforts described in Discover, they concluded that "there are still many things to be learned."

It seems that conclusion regarding the human species generally can be as validly applied to the study of our individual DNA. In light of the rapid decline in cost of DNA sequencing, perhaps the future will bring further cost reductions, and the gathering of our information will become ubiquitous. One quoted scientist potentially foresees a time "when babies are routinely genetically profiled at birth." While that may be of broad societal benefit in terms of broadening and enlarging the "datasets," it may invariably lead to some loss of our individual privacy. That it could become an institutionalized practice may perhaps raise anxiety of Brave New World (Aldous Huxley, 1932). 

The BBC article touts that this DNA testing path leads us to more personalized medicine. The scientists quoted perceive benefit to this progress. Regarding the increasing propensity for such data gathering, one expert is quoted asking "because why wouldn't we?" Some might want to mandate reading Brave New World in pursuit of answering that question as a society. But some may answer that question personally from more of the Vince perspective; some may find the idea of databases crammed with their individual DNA, their very makeup, to be less than an appealing idea. Will the "greater good" override the interest in privacy? Or, will it be our self-interest that does so?

Will this play out the same in an American society with constitutional privacy recognition than in other world societies? Will we trade our privacy for efficacy or efficiency? In the end, will our desire for self-preservation really be any counterbalance to our fears of privacy? What societal impact might come from the knowledge of our individualized pre-dispositions and risks?

Bob Dylan noted years ago: The Times They are a Changin'. That seems perennially true. In one lyric he cautions us to "not criticize what you don't understand." Though that line there is more of a caution to allow youth a say in matters, in the present context we might take it as an encouragement for us to each learn more of the potential perils and benefits of both learning of our personal DNA and having it cataloged for the world to see. "Oh, brave new world" (Shakespeare, The Tempest, Act 5, scene 1).



Sunday, September 1, 2019

"Why we Lie"

The British Broadcasting Company (BBC) recently published a story Why we Lie About Being Retired, an eye-catching lead. The author describes the great efforts on the Internet to portray images of retired folks enjoying their golden years. There is a lamentation that retirement is perceived by some as a goal for which financial planning is necessary, and recognized. However, it suggests that perhaps a broader spectrum of preparation would be more beneficial overall. 

While the BBC acknowledges that there are financial concerns for retirees, it focuses on retirement being a life-change. One professor is quoted characterizing the change as "a very dramatic moment." A study is cited that concluded people who retire may initially relish their new-found freedom and time, but that "the novelty can soon wear off." After it has worn off, the retiree may be left "feeling under-utilised." 

The author reminds us how people have a tendency to describe themselves in work terms. There is an association we have with our occupations or professions. And, when that ends, according to the cited research, people continue to identify with those descriptions like "I'm a retired librarian." They are relating themselves to their work, an identifying anchor of self, of identity. This was explained, according to the author as effectuating a "desire to be a part of something."

People seem to find relevance in themselves, contributed to by the relevance of the occupation in which they invested their working lives. A Nobel Prize winner is quoted concluding "work is so fundamental to the good life." And, that "work is the main source of a meaningful existence for most people." He explains our investment in that regard is life-long and "work is essential to play a role in the discovery of new things." There are rewards to the participation in the workplace, both financially and in the realm of "testing yourself and showing what you can do, achieving and discovering and exploring." 

Likely, by this point, Statler and Waldorf are perhaps asking: "what does this have to do with workers' compensation?" A fair question. But, focus for a moment on the idea of preparation. Many people will focus for years upon their retirement date. They will plan, if only financially, for how they will function after that point. The idea of not being a librarian, but a "retired librarian" will have much time to germinate and mature in the intellect. And yet, according to this article and the study cited, people will nonetheless struggle to adapt to that transition. 

Instead, focus on the person that does not have years, months, or perhaps even days to "get used to" the idea of no longer being a librarian. When a work accident happens, that transition from a vocation, occupation, or profession may happen very rapidly. Is the injured worker any less connected to the identity of an occupation than a retiree? It seems likely that the transition from "librarian" to "former librarian" is as challenging regardless of the cause (retirement versus injury). Therefore, empathy is worthwhile in either setting.

Of course, the retirement issue is much more pervasive. Eventually, the vast majority of us will retire. Conversely, fortunately, most of us will never suffer a debilitating work injury. But it is worthwhile to consider the emotional impact it will have on those who do suffer a work injury. For some, the impact may be temporary. Following an event, as medical care begins, there may be an onset of fear regarding the ultimate impact of injury, disability, or function loss. For the most optimistic, that fear may be some level of additional challenge. If care is effective, and functional restoration is noticeable, fear may diminish or even subside. Is it fair to assume that the sooner such restoration occurs the better?

But what of the worker for whom modalities are less effective? As medicine perhaps struggles to define the exact cause of symptoms and complaints, might that fear strengthen? As time passes, might a worker become disillusioned with the pace or extent of progress? During the effort at recovery, might any occupation begin to question or even fear that this could mean he/she may become a "former" __________? If the BBC article conclusions are to be believed, isn't this transition or potential for transition as anxious for the injured worker, or perhaps more so?

Economically, no one is likely to plan their lives based on "what if I am injured." When we calculate how much house, car, or other lifestyle we can afford, we do not think about whether it is sustainable at sixty-six percent (66%) of our current or even future income. That is not in our nature. In fact, some may make financial commitments that become a challenge even on 100%. I recall a young professional I once knew that felt that way about a BMW purchased soon after graduation; it turned out that the payments, insurance, etc. were more strain to a young family's budget than predicted. Might a sudden decrease in income after a work accident likewise, or additionally, contribute to anxiety, stress, or emotion?

The Author of the BBC article sees potential for societal unrest as the population ages. There is a perception that there will be economic necessity to raising the retirement age, and that may impact certain occupations more than others. There is specific reference to those performing "physical labour," and some conjecture those workers will not "to have the same opportunities to work longer in their late 60s and 70s." And, there is advocacy expressed for policy change to address the perceived inequity of that.

Might the same dichotomy be as applicable in the work accident paradigm? Just as skill sets and occupational physical demands may impact the longevity of career paths in the retirement realm, might such considerations impact the potential for an injured worker to either return to a former vocation/profession or to transition to a new one? Some may argue that there is not equal, perhaps not equitable, access to opportunity. As a worker is confronted with that potentiality regarding retirement, the realization might have emotional impact. Would the potential be any less for a worker confronted with it more unexpectedly in an injury paradigm?

Let's turn back to the conclusions in the article about the value of vocation/occupation. One source noted "work is the main source of a meaningful existence for most people"; explaining "work is essential to play a role in the discovery of new things." If that is accepted, does it support the underlying goal of workers' compensation "to facilitate the worker's return to gainful employment?" Section 440.105, Fla. Stat. If our work, occupation, vocation is so critical to our person, to our identity, are we not reinforced and empowered by return to "gainful employment" after injury in the same manner that we are by maintaining such employment or association to such employment in the retirement consideration?

The overall tenor of this vocational discussion is nothing new. There have been codifications of educational and vocational aspects in various workers' compensation laws over the years. The recognition of benefits to retraining and vocational efforts seems persistent, even if one might find less than unanimity or even consensus in what the details should, could, or would be. Perhaps the BBC author's conclusions about the value of feeling "utilised" bears our consideration and discussion. If we could, through any such change, find a path to dropping the "former" by either returning to a previous role or finding some new role with which to identify and contribute, there would be benefit.

But, the BBC article suggests that change can be hard emotionally. When that change is long predicted and planned for, it can remain difficult to accept nonetheless. Unexpected change, it is suggested, may be as, or more, difficult to process, accept, and overcome. That there is emotion to change seems plausible, but it has seemingly only recently become a subject that is discussed. Perhaps more attention to emotional challenges of vocational change, or even interruption, merits attention following a work accident?



Thursday, August 29, 2019

Constitutional Standards Explained

The Florida First District Court of Appeal recently rendered Department of Health v. Gainesville Woman Care, LLC., No. 1D18-623 [August 1, 2019]. The case is not about workers' compensation, but about a statute imposing a specific informed consent regarding a medical procedure. The appellee (Gainesville Woman Care, or "GWC") challenged the statute on constitutional grounds, contending that it "on its face, violates the Florida Constitution’s right of privacy provision." Constitutional analysis has been the focus of various challenges to the Florida's workers' compensation statute, and the Court's explanation of constitutional analysis here is worthy of discussion. 

The history of this challenge includes the appellee (GWC) challenging the statutory amendment shortly after it was enacted, seeking to "temporarily enjoin" enforcement of the law while the substantive challenge proceeded in the courts. This injunction was granted by The Florida Supreme Court. As the substantive challenge proceeded in the Circuit Court, "Appellees moved for final summary judgment and prevailed," meaning that the trial court concluded the law was unconstitutional on the merits of the Appellees challenge, and did so before the case made it to trial. 

The First District Court reversed that conclusion, and explained the distinctions between "the temporary injunction phase" and the substantive challenge. It described how the Appellees (GWC) presented evidence, in seeking the injunction. At that time, however, "the State didn’t offer any rebuttal evidence." See If You Are Not Perry Mason, Bring Evidence. Based only upon the evidence submitted by the Appellees, the injunction was granted and the challenged informed consent statute could not be enforced while the trial court proceeded with considering the merits of the challenge. 

In that later consideration of the merits, Appellees sought summary judgement (without a full trial). In support, GWC argued their allegations and the fact that the Supreme Court had granted the temporary injunction. The State responded to that motion by "producing evidence supporting the law’s constitutionality." This evidence "hadn’t been offered at the temporary injunction stage of the case." Despite that evidence, the "trial court granted Appellees’ motion for final summary judgment," and concluded the informed consent statute "to be facially unconstitutional." The First District reversed that decision and remanded the case back to the trial court. Note, the District Court did not say the law is "constitutional," it said the trial court should have proceeded to trial rather than ruling without trial in a summary manner.

The District Court explained that the evidence adduced by the State in the summary judgement proceedings established issues of "material fact as to whether the" law was constitutional. The trial court had rejected those facts, discounting the persuasiveness of the proferred evidence. Notably, the decision of the trial court was not entirely clear as to whether its decision was based on a "facial" analysis, and it cited "particular circumstances in which the law might not constitutionally apply," suggesting an "as applied" analysis. The District Court explained the distinction between the two, "facial" and "as applied," in this discussion of clarity. 

The Court reminded that "summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” It explained that the State opposed the initial "temporary injunction," but at that time "failed to present any evidence" of a "compelling state interest" that justified the statute. The Court described the State's evidence at that injunction stage as "feeble," in explaining why the temporary injunction was granted by the Supreme Court and the enforcement of the statute prohibited while trial court litigation proceeded. 

To the contrary, the Court noted, the Appellees (GWC) did not respond to the State's evidence on the merits in the trial court. In response to the State's evidence, the District Court concluded "Appellees are standing pat." This is critical, according to the Court, because the preliminary injunction decision is precisely that, "prelimary." It is not generally a full analysis of the facts and law, which occur in a trial on the merits, but a decision made for a temporary period based upon preliminary evidence and allegation. As such, the Supreme Court decision granting the injunction was not a decision on the merits of the law. And, furthermore, the Court noted that decision was in some part due to "the State’s lack of evidence." As there were factual issues for resolution, the Court concluded that summary judgement was inappropriate.

Thus, the conclusions seems simply. First, the State did not adequately address the request for temporary injunction and thus the injunction was granted. Second, the GWC did not adequately address the State's evidence in the trial court, and thus granting judgement without trial was inappropriate. The process and history demonstrate the need for full and focused prosecution and defense at each stage of a proceeding. 

The Court then addressed the trial court's analysis of the constitutional question, drawing distinction between a "facial" and "as applied" determination. It reiterated the "established test for assessing facial constitutional challenges": "whether it violates the rights of all women in all circumstances." The Court compared that test to the analysis that would be appropriate for a particular person "claiming particular harms," the "as applied" analysis: whether the "Law violates the constitutional rights of some women in some circumstances." The Court reiterated this distinction and stressed that in a facial challenge the Court should "consider only the text of the statute, not its specific application to a particular set of circumstances." 

Phrased differently, the Court explained, "facial challenge (test) is not whether the . . . Law can be lawfully applied to a particular set of facts," but "whether no set of circumstances exists in which the law is constitutionally valid." The Court noted that: 
"The trial court did not state whether it was invalidating the law under Florida’s traditional no-set-of-circumstances test for facial challenges. But it highlighted particular circumstances in which the law might not constitutionally apply," 
Thus, the findings of the trial court regarding facts and circumstances of some leads perhaps to a lack of clarity in the decision. The failure of the trial court to affirmatively state its reliance on the "no-set-of circumstances" standard could perhaps leave confusion as to what standard the court applied and thereafter cause confusion as to the applicability of the court's decision to other constitutional challenges.

The District Court, in evaluating the trial court's conclusion is thus left with questions. This illustrates that it is critical in constitutional analysis to both state the standard of review applied, and to explain the factual findings pertinent to that analysis. That reminder is relevant in any trial proceeding. The decision should be sufficient to explain the outcome to the specific parties (who are already familiar with their facts and circumstances) and to any member of the public that thereafter may read the decision, and who lack any context or knowledge of the case beyond that provided by the judge in that decision. The judge's decision must be complete, accurate, and clear. 

Without such clarity, a reviewing court, as well as those in other future litigation that may seek to apply the court's analysis similarly, are left without clarity as to the constitutional, or other decision, analysis. Clarity provides predictability and effectuates review and stare decisis. Stare decisis is a legal maxim that essentially holds that courts will respect and follow previous judicial decisions in deciding present disputes. It is discussed further in A Kentucky Constitutional Analysis

Whether a constitutional decision is "facial" or "as applies" is critical in light of stare decisis. Whether a decision binds only a particular case and its parties, specifically because of the facts of that case ("as applied"), or whether the decision applies to all parties in all cases regardless of the facts ("facial") is critical information for both those parties and the public. Courts have a responsibility to be clear on the standard applied as well as the breadth and scope of such a determination of constitutionality. 

The opinion in Gainesville Woman Care was not unanimous. Judge Wolf dissented. It is focused on another element of constitutionality, which requires in challenges such as this that the state prove it has a compelling interest in constraining individual rights, and that the law is "the least restrictive means of serving any compelling state interest.” Judge Wolf concludes that trial court correctly concluded that element was not demonstrated by the State and therefore Appellees (GWC) were entitled to summary judgement.

There follows a detailed explanation of the challenged statute, and its application to various potential challengers and potential factual situations that a person "may face," situations in which the statute might be applied. Judge Wolf concludes that "a law that forces a patient to delay medical care to the detriment of her health cannot be the least restrictive means of furthering any compelling state interest." The dissent asserts that the State has not provided evidence to "explain how a law that sweeps so broadly can be found to be the least restrictive means of serving any compelling state interest." 

Academically, the decision and dissent each provide interesting reading. The perspectives offered illustrate that constitutional analysis is sometimes complex, nuanced, and subject to various perceptions. However, the value of clarity of analysis and conclusion is perhaps clear in any event. The constitutional analysis of a court is of greater value if the standard applied and factual conclusions are clearly stated and explained. This benefits the parties and the public who may later encounter the decision in seeking guidance and predictability on their own issues and disputes. 

Tuesday, August 27, 2019

Aggressive Without Being Obnoxious

In early 2018, The Florida Supreme Court rendered its decision in The Florida Bar v. Ratiner, 238 S. 3d 117 (Fla 2018)(Case Number SC13-539). Note that is a 2013 case number decided in 2018. It is an intriguing instance of attorney discipline. 

The reader will remember in Florida, the Supreme Court has the constitutional responsibility to decide who may and may not practice law. Article V., Section 15. When allegations of misconduct are raised, they are investigated by The Florida Bar, under the authority of the Court, and the bar may decide to pursue formal charges. In the event that it does so, the Court appoints a Referee (usually a Circuit Judge) to conduct hearings, determine the facts, and recommend both the conclusions as to guilt and what punishment would therefore be appropriate. 

The Court noted that Mr. Ratiner was a twenty-eight year attorney, admitted in 1990. There had been "Three disciplinary cases brought against" him including the one under consideration. In 2010, one had resulted in "a sixty-day suspension and a public reprimand, to be followed by a two-year period of probation," and the second in 2015 "resulted in a three-year suspension." 

One allegation in the 2013 case was that Mr. Ratiner had said “Lie, Lie, Lie” in a hearing "while opposing counsel conducted the direct examination of Ratiner’s law partner." Mr. Ratiner denied saying this, then denied remembering saying that. However, the judge presiding at that hearing testified that she had heard him say it. The "referee found Ratiner guilty of violating Bar Rules 4-3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct)."

In the same hearing, the Bar alleged Mr. Ratiner "repeatedly kicked the leg of counsel’s table where he was seated." One of the opposing attorneys testified this was “in a manner that was disruptive of the proceedings.” The referee concluded that the kicking was “very loud.” The presiding judge testified that she addressed this with counsel in a sidebar, and then "ended the post-trial hearing" as a result. The Referee concluded that Mr. "Ratiner intended to disrupt the proceedings and was therefore guilty of violating Bar Rules 4-3.5(c) and 4-8.4(d)"(see above). 

The Referee also noted "testimony from various witnesses" regarding misconduct. This included Mr. Ratiner exceeded the agreed upon time for closing argument in the case. When he "exceeded his time," the judge "gave him a few additional minutes," but Mr. Ratiner "stated that he would take whatever time he needed." 

The trial judge also saw Mr. Ratiner "wrinkling and throwing’ documents." When the judge "reprimanded Respondent,” he denied doing so despite her seeing the behavior. The trial judge "described Ratiner’s behavior at trial as 'awful,' that he was not respectful to the court or obeyed orders, and that she was ‘appalled.’” She described him as "disruptive, that he was a ‘bully.’" The Referee concluded that his behavior was "rude, overly aggressive, unprofessional and at times appeared to try to intimidate the witness.” 

Ultimately, "the referee recommended that Ratiner be suspended for a period of three years." Because Mr. Ratiner was at the  time of the referee's decision serving a "three-year suspension" from another of the cases, the referee recommended that the two suspensions be served simultaneously (at the same time, effectively minimizing any punishment for these allegations and findings). 

The first discipline for Mr. Ratiner was rendered in 2010, The Florida Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010). That involved a deposition during which there was discussion of certain documents or information that were/was on a laptop computer, rather than printed on paper. The situation devolved after another attorney tried "to place an exhibit sticker on the Respondent's laptop computer." That led to lost temper, "speaking forcefully," and was described by that referee as "conduct . . . outrageous, disruptive, and intimidating to the witness, opposing counsel, and other persons present." The exchange was recorded, and thereafter was viewed on the Internet by others in Florida. 

The referee in 2010 "made two alternative recommendations as to discipline." The first was disbarment, in support of which the referee concluded that is appropriate if someone exhibits "unfitness to practice law," which the referee concluded The Florida Bar had established. The second recommendation was a "two-year suspension" with the condition that he "attend mental health counseling to address anger management," that he be accompanied to future depositions unless co-counsel was present, and that he apologize to those involved in the deposition that deteriorated so. The Court elected a 60 day suspension, two years of probation with specific conditions (similar to the referee recommendations). 

Thereafter, the Court suspended Mr. Ratiner for three years in an unpublished disposition recorded at 177 So.2d 1274 (Table)(Fla 2015). It was this suspension that Mr. Ratiner was serving when the 2018 decision of the Court was published. 

In 2018, the Court opinion discusses Mr. Ratiner's history. The Court concluded that the referee's findings of fact were "fully supported by competent, substantial evidence." Noting that Mr. Ratiner disagreed with that evidence (other witnesses testimony), the Court reminded “an attorney cannot meet his burden (of proof) by simply pointing to contradictory evidence when there is also competent, substantial evidence in the record to support the referee’s findings.”

The Court then addressed the recommended "sanction, a three-year suspension to run consecutive to Ratiner’s current three-year suspension." The Court noted it "will generally not second-guess the referee’s recommended discipline." The Court, however, concluded in this instance the recommendation was "contrary to Standard 2.3"; “Suspension is the removal of a lawyer from the practice of law for a specified minimum period of time. . . . No suspension shall be ordered for a specific period of time in excess of three (3) years.” By imposing a second three year suspension, the Court concluded it would effectively be imposing "a six-year suspension." 

The Court in 2018 then discussed the second discipline, the three year suspension in 2015. There, Mr. Ratiner was in a document review when he referred to one of his opposing counsel "as a “dominatrix” and stated “you must enjoy dominating people.” The Court noted it had concluded that comment "whether knowingly or with callous indifference, did disparage, humiliate, and/or discriminate against another lawyer." Having been shown a document in that review, Mr. Ratiner demanded a copy. When that was refused, he "attempted to grab the document." He thereafter "continued to attempt to forcibly take the papers." A security guard had to intervene. 

The Court concluded that there was "a pattern of similar misconduct." Despite Mr. Ratiner's consistently proclaiming his innocence, and denying "objectionable, disrespectful conduct over the years," the Court concluded that his conduct was "completely unacceptable." It concluded that his "intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards." The Court noted that "one can be professional and aggressive without being obnoxious." It stressed the value of "treating judges and opposing counsel with civility."

The Court admitted that it "has been discussing professionalism and civility for years." It explained that "if we are to have an honored and respected profession, we are required to hold ourselves to a higher standard." And, thereupon, the Court concluded it was "left with but one course of action, and that is to disbar Ratiner."

The decision is worthy of review for several reasons. First, tempers will flare, and it is not uncommon for feelings to be hurt in litigation. Everyone involved should learn to recognize the onset of such emotions, and would be well advised to take a break to avoid them. Second, childlike behavior has no place in a legal proceeding. Editorializing during someone's testimony and disruptive noise making are but two examples. Third, behavior in hearings is important, but other behavior in correspondence, discussion, and depositions is also important. 

Fourth, it may be that we are all perceived by others in a way that we do not perceive ourselves. How other witnesses to our behavior perceive us may be critical. And finally, a lawyer should take heed when there is some incremental punishment imposed. A warning has a purpose, but may be worthless to us if we fail or refuse to acknowledge it. Continuing a course without correction may lead to increasingly serious implications, including loss of the privilege of practicing law.

How we treat others is critical to the practice of law remaining a profession. The profession is dependent upon our recognition of and adherence to the Rules of Professional Conduct. The Court acknowledges the obligation of zealous advocacy and even the need for aggressive pursuit of a client's rights. But, it cautions us that advocates can be "aggressive without being obnoxious." It is a quote worthy of periodic consideration.