"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
case illustrates to me the serious consequences to the Bar itself of not
affording the full protections of the First Amendment to its applicants for admission.
For this record shows that [the rejected attorney candidate] has many of the
qualities that are needed in the American Bar. It shows not only that [the
rejected attorney candidate] has followed a high moral, ethical and patriotic
course in all of the activities of his life, but also that he combines
these more common virtues with the uncommon virtue of courage to stand by his
principles at any cost.
It is such men as these who have most greatly honored the profession of the
law. The legal profession will lose much of its nobility and its glory if it is
not constantly replenished with lawyers like these. To force the Bar to become a
group of thoroughly orthodox, time-serving, government-fearing individuals is to
humiliate and degrade it.” In
Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429
(1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong
dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan,
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
Tuesday, July 4, 2017
When a plumber is given authority to tell you whether you can sue a plumber - why do we need courts?
Yet, it should be.
Now and again, across the U.S., rich and powerful professional guilds, under the guise of protection of our interests as consumers, gain privileges from state and federal legislatures to continue their cozy and lucrative monopolies, at our financial expense and at the expense of injuries to customers.
The last resort of any consumer is the court.
Court proceedings are costly and cumbersome - but still, for injured people sometimes such proceedings do bring remedies.
And that was, apparently, a big problem in the blessed state of Kentucky.
The state of Kentucky has snuck in a law that puts an additional hurdle for people injured by medical professionals to overcome before they can sue - "screening panels".
Apparently, in Kentucky, the legislature does not trust courts with their preliminary procedures, such as motions to dismiss, and juries to screen lawsuits. Or, courts and juries were in fact awarding something to injured consumers of medical services which doctors were not happy about.
The principal sponsor of the new legislation, reportedly, was a Senator who is a licensed physician - which is an irreconcilable conflict of interest, but apparently, State Senator Ralph Alvorado does not care about that.
Moreover, the "screening panels" that are put, by new law, in the position to precede and substitute for courts and juries, must consist of 3 doctors
- which is an even bigger conflict of interest.
How can an unelected panel of three licensed doctors be allowed to usurp the role of the courts to resolve conflicts regarding mistakes of their own colleagues?
And how does that protect consumers?
Does Senator Dr Alvorado care that the declared purpose of occupational licensing (including licensing of any medical professional, which means his own medical license) is protection of CONSUMERS, not doctors?
This legislation very obviously has as a purpose protection of doctors from injured consumers, blocking injured consumers from ever having any remedy.
The flurry of court filings before the legislation kicked in indicates how much patients and their lawyers trust in doctors in these panels "judging" and screening medical malpractice cases fairly.
Contrary to popular belief, it is not that easy for a medical malpractice lawsuit to survive. The main hurdle is to prove causation - that the particular actions of a particular physician have caused injury and damages to the plaintiff. Proof in such cases require expert evidence and testimony.
If it pertains to surgery, when the injured patient was under general anesthesia or sedation, proof can be manipulated by the defendant physicians and their personnel, by manipulating records about the surgery to protect themselves from liability.
If it pertains to any other procedure when the patient was conscious, there are informed consent forms which may be signed without necessary information provided to the patient to form that informed consent - but still can be used against the patient.
And, in general, it is difficult to find a doctor who would be willing to testify against his colleague in court - for fear of being blackballed, disciplined and stripped of his own license and livelihood by his own profession.
Now, when debates about the fate of Obamacare are raging in the federal government, mainstream and social media, such "minor issues" as blocking access to court of victims of medical mistakes fall by the wayside as not so important.
Yet, with any coverage, even a perfect medical insurance coverage, our hope to quality medical care will remain illusory if doctors are going to be allowed to block our access to court to address their mistakes that cause injuries.
It is for people of the state of Kentucky to demand repeal of this shameful legislation.
For people in other states, where similar legislation can be pushed by the medical guild - beware.
And, here is a cautionary tale - of a person who has brought about a $500,000 cap on recovery in medical malpractice lawsuits - only to be later injured through a medical mistake, with damages from the injury amounting to millions of dollars, but capped, by his "own" legislature, at $500,000.
The sponsor of the shameful "doctor panel" legislation in Kentucky, the State Kentucky Senator Dr Ralph Alvorado is young and arrogant,
he occupies all the key positions that conflict with his role as a lawmaker without any scruples, such as a member of the Board of Trustees of the Kentucky Medical Association, American College of Physicians, Kentucky "One Health Med Group", "BD Vice Chair Wealth MD".
Of course, while doing a quite self-interested and un-Godly thing, Senator Alvorado does not forget to rub in his religiosity by putting into his official biography that he is a deacon of Grace Baptist Church.
Senator Dr Alvorado apparently presumes he himself or his loved ones will never be victims of medical mistakes, as it happened to Frank Cornelius in the State of Indiana - or that he can through his weight about at all times to manipulate those doctors in medical panels to pave a path to court that he blocked to everyone else?
Power and authority, and high elective positions come and go.
People are mortal, they retire and die, leaving vulnerable their own family - and everybody else who was hurt by such "laws" created to satisfy self-interested greed of a professional guild at a particular moment.
Nobody can guarantee that Senator Dr Alvorado and his loved ones will not fall victim to the very legislature he crafted and pushed through, for himself and his colleagues.
But of course, who thinks about karma when abusing his power to satisfy his own greed...
What is really bad is that the Kentucky legislation only started on the slippery slope of blocking access to courts for consumers injured by various service providers.
If doctors can screen access to court of consumers injured by other doctors - why can't other providers be allowed to do just the same?
Just imagine - if a contractor screwed construction of your house, you cannot sue him directly, but must first have your case "screened" by a panel of three - gasp! - contractors, who will decide whether you can sue their colleague or not.
Or, if a plumber screwed up your toilet, flooding half of your house with fecal matter, you cannot sue the plumber unless a panel of his 3 colleagues allows you to do that.
Which brings us to a million dollar question - why do we need courts at all in consumer injury cases?
We can just have service providers, in each consumer injury case to gather into TROIKA panels and tell consumers what such TROIKA panels will most definitely tell injured patients in Kentucky - BUZZ OFF.
And abolish all courts.