"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).

“This 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, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"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.

“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.

Wednesday, August 30, 2017

The Human Dx project - medical care for or medical experimentation on the poor?

We have licensing of medical professionals that not many people would challenge.  People with whom I discussed the subject, as well as articles that argue that licensing of medical professionals is a necessity usually ask me the same question - will you allow an unlicensed surgeon to do your surgery?

My answer - yes, and that was already happening in Russia where I am from.

When my relatives had a surgery, when I gave birth to my children in Moscow, there were no licensed physicians there - because physicians were not licensed at that point.

A diploma from a 6-year medical college with a rigorous training schedule and rigorous exams at the end of each semester, year and 6 years, and a residency after that were enough proof of professionalism.

Here in the United States the idea of occupational licensing of medical professionals became some kind of a sacred cow - even if a physician treating you does not really know the drugs he or she is prescribing and cannot adequately explain to you the necessity or possible complications or side effects of the proposed diagnostics or treatment.

And, in the medical profession, same as in the legal profession, the advance of artificial intelligence (AI) raises the question as to - why occupational licensing is needed - more and more.

For example, I recently wrote about a controversy in South Carolina where entrenched optometrists blocked consumer use of a smart phone application accurately diagnosing vision problems in order to get cheaper prescription glasses - forcing themselves upon consumers as the necessary link to get glasses, only through a prescription by a licensed optometrist.  While such a measure provides a zero incremental value for the consumers and deprives the consumer's own choice about their own health, for their own money, it provides protection for optometrists who invested all those years and all that money into education, training and licensing, and could not let go of they grip on a diagnostic procedure that can easily be done now in your own home by a phone app.

The same is happening in the legal profession where, despite the existence of an AI research engine for several years already, and despite the availability of online dispute resolution computer systems, professional bar associations try to draw out the life of their dying profession by blocking (on "ethical grounds", of course) introduction of virtual offices where people having knowledge of the law would be able to practice that law from any point in the world that has an Internet connection, to benefit any consumer who wants to pay for that service, and through criminal "unauthorized practice of law" laws, deeming as "practice of law" what a computer bot can do without a human, trained or untrained, licensed or unlicensed - which makes no sense whatsoever.  The not so funny part is that what constitutes the sacred cow of the "practice of law", is not clearly defined anywhere.

A similar situation, eroding the alleged necessity of medical licensing, is developing now in the medical profession with the introduction of an AI project called "Human DX" which supposedly contains databases, input from participating physicians and an ability to quickly and accurately analyze diseases and conditions remotely.

The interesting quirk in marketing and promotion of the Human Dx project is that all diagnostics can be done remotely.  Supposedly, that is good to provide medical care in "remote rural areas" - in the today's "doublespeak", to provide care for the poor.

Now, would people want to "tap into collected wisdom and gain access to tests, opinions or diagnoses that" "primary care docs at smaller or remote practices" would not have otherwise?


But, didn't all of us, at some point in life, hear from their physician "that is beyond my area of expertise, I will refer you to a specialist"?

And, aren't there disciplinary rules prohibiting physicians and other medical professionals to practice outside of their area of expertise - as a measure of protection of consumers?

Then, what is that "tapping into collective wisdom and gain access" thingy?  Who is going to diagnose "underserved patients" in remote rural areas?  

Office secretaries who would run an AI set of tests based on input of data that a nurse collected?

How would the patient subject to diagnostic procedures, know who exactly diagnosed him/her and who is responsible for that diagnosis?

How much such a remote diagnostics cost - will it up the cost of medical services because of the cost of the Human Dx project which surely does not come free?

And, the two most important questions of all -

  1. will the use of the Human Dx project become mandatory for the poor, as a substitute of a referral to an actual physician, in order to save money, and 
  2. does the use of Human Dx on the poor - instead of diagnosing them, as the rich will, most likely, continue to do, with the use of human physicians - amount to unlawful medical experimentation without consent?
Because it sure looks this way - whenever some supposed medical "innovation" is started not as an innovative measure in rich medical centers, but as a measure to "help underserved populations", those "underserved populations" should be immediately on a "guinea pig alert", that they may be used as part of a medical experimentation that, if it comes out all right and does not cause too many misdiagnoses, injury and deaths, can be then used on the rich.

To promote the Human Dx project, prominent physicians say things that they usually do not say about their professions - because it is prone to backfire, and it sure raises questions:

So, is the esteemed Dr. Sanjay Desay, MD saying that the presumption of fitness of licensed medical professionals claimed by the government when it imposes licensing requirement upon both medical professionals and consumers of their services is actually a lie?

That "we have no current methods for measuring [the fundamental skill of clinical reasoning]" - "aside from using a combination of the subjective opinions of more senior doctors and surrogate markers such as exams".

So, why do we need licensing then?

And, as to licensing of physicians -
  • if any given disease or condition can now be easily diagnosed by "tapping into the collective wisdom", remotely, and by an AI system that has not only a superior way of assessing the "fundamental skill of clinical reasoning", but supersedes it and superimposes itself as a super-diagnostician unsurpassed by single human physicians, and
  • if such remote diagnostics of a patient without seeing him by those into whose "collective wisdom" "primary docs" in remote locations will "tap", if this kind of remote diagnostics is not an ethical violation in treatment of the poor, and the poor will not even know if they were diagnosed by a physician or by an office assistant running a battery of tests on an AI,
a $100 million question is - why do we need medical licensing at all now? 

Who does such licensing protect if it does not protect the most vulnerable population, people who are indigent and, likely, less educated than the rich?

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