Out-of-the-Box Lawyering

An alert for victims of traumatically-caused chronic back pain and their attorneys

Chronic back pain can shrink the gray matter in a sufferer’s brain. This is one of the conclusions in a study from Northwestern University’s Feinberg School of Medicine, according to healthfinder.gov, a U.S. government website. And that shrinkage, according to the site, can be as much as 11 percent in one year, which is “the same amount of brain density that’s lost in 10 to 20 years of normal aging.”

The article, entitled “Chronic Back Pain Is Associated with Decreased Prefrontal and Thalamic Gray Matter Density,” was published in the November 17 issue of The Journal of Neuroscience. (The date of the issue is sometimes misreported as November 23. An abstract of the article is online in the Journal's website. See below for how to purchase a PDF copy of the entire article online.)

WebMD summarizes the article in non-technical terms:

“In the first study of its kind, researchers from Northwestern University have found that chronic back pain actually shrinks the brain by as much as 11%. Specifically, it shrinks the gray matter, which makes up the part of the brain responsible for memory and information processing.”

More details about the loss

The WebMD article continues:

“MRI brain images and other sophisticated imaging tests, which measured gray matter size, were performed on all patients. After adjusting for age and gender factors, scientists found that, overall, chronic back pain patients lost about 5%-11% of gray matter a year -- about the same as 10 to 20 years or normal aging, the researchers say. Typically, normal aging results in only about 0.5% of gray matter loss each year, they add.

“Those with chronic back pain with sciatica had the largest decrease in gray matter. In addition, the more years someone has chronic back pain, the more brain loss they suffered.”

The researchers’ summary includes more technical information than WebMD, including the researchers’ finding that “The decreased volume was related to pain duration, indicating a 1.3 [cubic centimeter] loss of gray matter for every year of chronic pain.”

The loss of brain power may be permanent

WebMD notes that the researchers found that the loss may not just be temporary: “The researchers hypothesize that as chronic back pain persists it may become more irreversible and less responsive to treatment due to these brain changes.”

For additional details, you can read Northwestern's release entitled “Chronic Back Pain Shrinks ‘Thinking Parts’ of Brain” that includes some details about the article that I haven't listed above, including information about what the lead researcher for this article and his colleagues found in prior research.

“In earlier research, Dr. Apkarian and colleagues found that back pain sustained for six months or longer is accompanied by abnormal brain chemistry, indicated by chemical changes in the area of the brain known to be important in making emotional assessments, including decision-making, and for controlling social behavior.”

So, if you are a back pain sufferer who was injured in an accident or you are an attorney representing a back pain victim, this may help you obtain damages for a real loss which you may not have considered previously.

LINKS FOR PRINTOUTS:

Healthfinder.gov
http://www.healthfinder.gov/news/newsstory.asp?docID=522408

Journal of Neuroscience abstract
http://www.jneurosci.org/cgi/content/abstract/24/46/10410

Journal of Neuroscience complete article
To have a PDF copy of the article sent to you, you can go to www.infotrieve.com, then register and order the article. It is in Issue 46 of Volume 24, the date of the issue is November 17, 2004, and the title begins with “Chronic back pain.” The total cost for the article should be $28, which is a $12 fee for Infotrieve, a $15 copyright royalty fee, and $1 for the electronic delivery.)

Northwestern summary of article
http://www.medschool.northwestern.edu/newsworthy/2004B-November/Back%20pain.html

WebMD article
http://my.webmd.com/content/Article/97/104181.htm

Here's another in a series of ways to decrease medical malpractice suits by decreasing the malpractice — Prevent injuries and deaths due to the illegible prescriptions that physicians write

Have you ever had a prescription where you couldn't even read your own name on the prescription? It's no wonder that patients receive the wrong medications or the wrong dosages from their pharmacists. An article in American Medical News, an American Medical Association publication, describes a case in which a jury found that a patient died because of a physician's illegible prescription and, finding both the physician and the pharmacist liable, rendered an award of $450,000.

The Institute of Safe Medicine Practices in 2000 issued a white paper entitled “A Call to Action: Eliminate Handwritten Prescriptions Within 3 Years!” Well, it's already been four years since the paper was published and not much has been done.

In describing medication errors as “A Compelling Public Health Issue,” the paper cites a 1999 report from the Institute of Medicine and summarizes a portion of the Institute's report:

“The report notes that medication-related errors alone constitute a sizable problem. Errors related to medication orders and prescriptions and to administration of medications kill up to 7,000 Americans annually, both in and out of hospitals. These errors actually cause more deaths each year than workplace injuries, which have long received considerable public scrutiny. One estimate places the annual national cost of drug-related morbidity and mortality in the outpatient setting as high as $76.6 billion.”

(I have a discussion of and citations to the IOM report in an earlier posting.) Of course, not all of the medication-related deaths and injuries are due to illegible prescriptions. But here's what the white paper of the Institute of Safe Medicine Practices says about what it calls “A Handwriting Crisis”:

“One fundamental source of medication errors arises out of the very act of handwriting prescriptions. These errors tend to be failures of communication between the prescriber and the nurse and/or pharmacist who must fill the order. In far too many cases the underlying problem is clinicians' handwriting . . . Many jokes have been made about doctors' sloppy penmanship, but illegibility is no laughing matter. Virtually all of the prescriptions issued each year in the United States are written by hand. Indecipherable or unclear prescriptions result in more than 150 million calls from pharmacists to physicians, asking for clarification, a time-consuming process that could cost the healthcare system billions of dollars a year in wasted time. At the very least, that process can delay the time until patients receive their medications. At worst, a misread order can lead to injury or even death.”

The white paper includes an example in which a physician intended to write a prescription for a diabetes drug, but, instead, a pharmacist, misreading the prescription, gave the patient a blood thinner. The paper adds:

“Virtually all of the 3 billion prescriptions issued each year in the United States are still written by hand.

“An incorrect understanding of the intended drug, dosage, or route or frequency of administration can quite obviously produce a medication error — not to mention an adverse drug event. Given some doctors' hurried scribbles, it may be hard for dispensers to tell whether a zero is preceded by a decimal point or not; if the decimal is misread, the dose ultimately given may be off by an order of magnitude, and the result could be a 10-fold overdose. Poor handwriting can blur critical abbreviations for weights, volumes, or units; mg may be confused with mg [sic], again leading to an overdose. An order marked as ‘qd’ (once a day) might be read as ‘qid’ (4 times a day).”

The paper also includes a table of what it calls “frequently misunderstood” or “hazardous” abbreviations.

A high tech solution

So what's the answer? One answer is for physicians and other health care providers to use computers when prescribing. Those computers can check for potentially lethal incorrect dosages and other dangers such as contraindications due to other medications the patient is receiving. Additionally, the prescriptions will be able to be printed out at hospitals and offices so that there will never be any problems of illegibility.

That's the high-tech solution, and it is being done, although it is being done slowly — very very slowly — and only in a small number of locations.

What about a low-tech solution?

Now, what about a low-tech solution for preventing deaths and injuries due to those illegible prescriptions? Here's the lowest of the low-tech solutions: Florida now requires that prescriptions for medicinal drugs issued by health care practitioners “must be legibly printed or typed.” As an additional safety factor, Florida also requires that the quantity of the drug prescribed must be set forth both in textual and in numeric formats. (The statute is quoted in full below.) (Tennesse has also passed prescription-related legislation.)

Prescription-related bills have been introduced in the Michigan legislature. Both bills have passed the Michigan House and are presently before a Senate committee. House Bill 5328 of 2003 is a broadly-worded bill designed to prevent “prescription medication errors.” House Bill 5549 of 2004 would require that handwritten prescriptions be “legibly printed in a type not smaller than 10 point, written with ink or an indelible pencil.”

The Detroit News, in a June 13 article reporting on Bill 5549, adds:

“Long a source of humor, messy handwriting is now a semi-serious issue. In 2003, the University of Michigan Medical Center began requiring all doctors to complete courses about the dangers of bad handwriting. Nationwide, some hospitals even teach penmanship.”

However, The Detroit News has editorialized against the handwriting requirement. Interestingly, the title of its editorial was “Neat Handwriting Bill for Doctors is Overkill.” Actually, I believe that I think the bill should really be described as “underkill” rather than “overkill,” for, although it does do some good, it only goes a small part of the way toward saving lives. But, at least it is a good start toward physicians not killing their patients, albeit unintentionally.

There is an interesting medical term that fits here. That term is “iatrogenic.” One online dictionary defines the term as “induced inadvertently by a physician or surgeon or by medical treatment or diagnostic procedures.”

Let's hope — and work — so that, one day, there will no longer be any iatrogenically-caused deaths and injuries due to illegible prescriptions.

A personal experience

I was in Amsterdam in 2001 — three years ago — when I took my grandson to a pediatrician's office there. It was a small two-physician office. After the pediatrician examined him, she gave me a prescription. And guess what! She had used her standard desktop PC to print the prescription.

LINKS:

American Medical News article
http://www.ama-assn.org/amednews/2003/08/04/prl20804.htm

Detroit News article
http://www.detnews.com/2004/health/0406/18/d01-181854.htm

Detroit News editorial
http://www.detnews.com/2004/editorial/0406/16/a12-184341.htm

Dictionary definition of iatrogenic
http://www.emedicinehealth.com/dictionary/dictionary.asp

Florida statute
http://www.flsenate.gov/data/session/2003/Senate/bills/billtext/pdf/s2084er.pdf:
Florida statute, Section 456.42, Florida Statutes:
“456.42 Written prescriptions for medicinal drugs. — A written prescription for a medicinal drug issued by a health care practitioner licensed by law to prescribe such drug must be legibly printed or typed so as to be capable of being understood by the pharmacist filling the prescription; must ontain the name of the prescribing practitioner, the name and strength of the drug prescribed, the quantity of the drug prescribed in both textual and numerical formats, and the directions for use of the drug; must be dated with the month written out in textual letters; and must be signed by the prescribing practitioner on the day when issued.”

Institute of Safe Medicine Practices white paper
http://www.ismp.org/msaarticles/WhitepaperPrint.htm

Institute of Medicine report “To Err Is Human: Building a Safer Health System”is discussed, with citations to the report, in this weblog at http//www.outoftheboxlawyering.com/archives/000042.html

Michigan House Bill 5328 (2003) history and legislative analyses
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=2003-HB-5328

Michigan House Bill 5549(2004) history and legislative analyses
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=2004-HB-5549

Tennessee statute on prescriptions by podiatrists, dentists, physicians, optometrists, and osteopathic physicians
http://www.state.tn.us/sos/acts/103/pub/pc0678.pdf

How to win by NOT filing a winning lawsuit — There are times when you shouldn't file suit even if you think you can win it

What if you know you could win a suit — to have a state law or a provision in a state constitution that's against you declared unconstitutional under the U. S. Constitution? Should you always file the suit?

As you might expect, I wouldn't be asking the question if the answer would be: “Always file a suit if you're going to win.”

The question of whether to file is coming up in the gay rights arena. The November 12 edition of the New York Times has a lengthy article about the issue. Following its headline of “Caution in Court for Gay Rights Group,” is the article's lead paragraph:

“Fearful that aggressive action could backfire and generate public hostility, gay rights groups are planning to limit the scope of their legal challenges to the constitutional amendments banning gay marriage that were passed by 11 states last week.”

After describing the potential backlash if the groups would win the suits, the article continues:

“So challenging the new state amendments by arguing that gays have the right to marry under the federal Constitution is unlikely anytime soon. Instead, gay rights groups will move cautiously, mostly on procedural matters in states whose measures appear to infringe on civil unions and benefits for same-sex couples.”

The article, continuing, quotes Matthew Coles, the director of the American Civil Liberties Union's lesbian and gay rights project:

“ ‘The consequences - the risks - of losing are great,’ Mr. Coles said. ‘And we're unprepared for the consequences of winning.’ In his eyes, he said, winning in court too soon could mean losing in the court of public opinion, in Congress and under the United States Constitution.”

The article adds that, according to gay rights leaders, “the challenge is to change public attitudes.”

(The full article is free after registration for 7 days from the date of the article.)

This has to be the most intriguing headline that I've seen in years: RICO doesn't apply to crime-family shootings

The National Law Journal, in its September 27 issue, had the following headline:
“RICO doesn't apply to crime-family shootings”

The lead paragraph, continuing, looked like something out of a Sopranos script:

“SHOOTINGS of two members of the Genovese family were not motivated by the shooters' desire to advance within the family, the 2d U.S. 2d Circuit Court of Appeals ruled on Sept. 14, overturning convictions for murder in aid of racketeering. United States v. Bruno, nos. 03-1349 and -1351."

Here's the first paragraph of the Second Circuit's 42-page opinion:

“These appeals arise from the November 24, 1994 shootings of Genovese Crime Family associates Sabatino Lombardi and Michael D'Urso by John Imbrieco and Anthony Bruno while the victims were playing cards at a Genovese Crime Family social club. Although Lombardi was fatally wounded, D'Urso survived and subsequently became a cooperating witness for the Government. Bruno, Imbrieco, and the ‘getaway' driver, defendant Angelo Cerasulo, later pled guilty to various crimes and agreed to cooperate with the Government. The remaining participants in the November 1994 shootings — defendants-appellants Mario Fortunato and Carmine Polito — were subsequently tried for, and convicted of, violating various federal statues relating to the Violent Crimes in Aid of Racketeering Act ("VCAR"), the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and obstruction of justice for their roles in planning these shootings and subsequently obstructing the federal investigation of the shootings by attempting to influence the testimony of two grand jury witnesses and lying to the FBI.”

And here's the Court's conclusion:

“In sum, for the foregoing reasons, we reverse the convictions under Counts I, II, III, V, VII, and VIII in toto, and the convictions under Count IV for obstruction-of-justice conspiracy. We vacate the convictions under Count IV for false-statement conspiracy and the convictions under Count VI in toto. And we remand for a new trial consistent with this opinion.”

(The full squib in the Journal is no longer online.)

A solution for when you have a long trial in a small city and can't find adequate hotel and office space

The ABA Journal, in its November 2004 issue, tells how Houston attorney W. Mark Lanier solved his problems when he had a trial in a small city and the accomodations weren’t sufficient for lodging and trial prep: He bought an RV. “[His] ‘trialmobile’ [one word] is a 38-foot Fleetwood Excursion with slide-out office that seats eight, a bedroom, satellite TV and Internet service, washer/dryer, full kitchen and bathroom.”

It really works for him: “Without it, a small town could be exceedingly tough for working. With it, it becomes an adventure.”

Lanier, among his other credits, has been named by The American Lawyer magazine as one of the top 45 attorneys in the nation under the age of 45. He has also been named as a "Texas Super Lawyer" in 2003 and 2004 based on nominations from other attorneys who were asked to identify the top lawyers in Texas. You can see an article from the March 2004 issue of The American Lawyer that details some of Lanier's “war stories” and describes what the article calls his “trial mobile.” [Two words in this article.]

Raising out-of-the-box equal protection and related arguments in child custody cases -- 41 class actions have been filed

The National Law Journal reports in its October 25, 2004 issue, page 4, intriguing arguments that have been raised in 41 class actions around the country:

"Fathers' rights advocates are pushing legislation and class actions across the country in an effort to correct what they see as a judicial bias that overwhelmingly awards custody to mothers." "Since last month, constitutional challenges have been filed as class actions in 41 states to assert divorced fathers' rights to equal custody of children."

(Subscription or 30-day trial subscription required for web viewing.)

The article continues:

"[F]athers' rights groups claim that 84% of custodial parents are mothers. The pro se class actions filed in 41 states purport to represent 22 million fathers and 3 million mothers who have been denied equal access to their kids. An identical complaint was filed in federal courts in each state, said Torm Howse of the Indiana Civil Rights Council, a nonprofit fathers' rights group which is coordinating the effort."

You can go to the Council's site ( http://www.indianacrc.org ), obtain information about the class actions, including a listing of the states in which they have been filed ( http://www.indianacrc.org/classaction.html), and even view a 43-page sample complaint ( http://www.ffvisual.com/ncpshared/examples/TheMainComplaint.pdf ).