Newt Gingrich has, over the years, allowed his mouth to engage before he placed his brain in gear.

“Hypocrisy can afford to be magnificent in its promises, for never intending to go beyond promise, it costs nothing.” Edmund Burke.

His recent comments about hauling judges into congress, arresting judges who refused to respond to the “invite” to appear before congress and refusing to follow Supreme Court rulings with which he disagreed, are all simply a thoughtless extension of his and his supporters’ ideology.

There are rulings by courts and judges everyday that allow for plenty of room for disagreement. In not one of those rulings with which sound people may disagree would it be appropriate to jail the judge or haul her into a tribunal like congress for tongue lashings. That, however, is an ideology born from a group who believes they know best and, as a result, should be above the law and the constitution of this country.

Mr. Gingrich is an historical expert. He is fully schooled about the “separation of powers” included in the constitution. He should be sensitive to the need for the branches of government (executive, legislative and judicial) to maintain a balance of power through checks and balances. He should know that any judge may be removed for misfeasance or malfeasance through the impeachment process. He also knows that he President of the United States does not have the power to jail judges or to haul judges in before congress.

So, how can a man, a leader of his party, an historical expert, a former member of congress, make statements about simply ignoring the constitution?

Mr. Gingrich can make statements like he has because we live in a free country in which that freedom is guarded by the Constitution. The very document allowing Mr. Gingrich to set forth statements he knows to be simply untrue or inaccurate is the document he says he will simply ignore if elected to the office of President.

In a Democracy you can not have it both ways. We can not on one hand hold high a constitution that protects freedoms like free speech and on the other hand ignore those portions of the constitution that may be, well, inconvenient to a particular group.

What does this say about Mr. Gingrich? What does this say about the ideals of those behind Mr. Gingrich?

I have written recently about the “Santa Claus of Bikes”: Jack Hairston.

Our firm and many of our employees were a part of the Jack the Bikeman experience on Sunday. Jack was successful in putting bikes in the hands of nearly 800 kids. By the time we had finished, few bikes were left from the warehouse packed full when we arrived Sunday morning.

To watch the kids file into the warehouse housing the bikes and see their faces light up to be given a bike of their very own was like reliving Christmas morning when I was a kid each time. The joy each child clearly experienced made it all worth the hard work that went into moving bikes from warehouse to child.

The Searcy Denney staff collected bikes, both new and used, for three months before this event. We sent employees out to pick up bikes from people who wanted to donate, but could not get the bikes to Jack. Our employees also contributed new bikes and funds to assist Jack the Bikeman in his quest to make as many kids happy at Christmas time as he could by giving them the responsibility and the freedom a bike provides to a child.

Although we were not able to begin distributing bikes until around 9:00 am, some families were lined up as early as 4:00 am to stake their place in line for a bike.

At the end of a very long day, around 800 kids were just a little happier that they had a bike for Christmas and few bikes went without owners.

Many Searcy Denney employees were involved in the preparations to make sure that Sunday’s bike give away went forward and we are proud to have been involved.

Thank you, Jack the Bikeman!

Big Tobacco has recently agreed to pay over $6 million to settle claims with the US Department of Justice.

A summary of the conduct causing the $6 million payment?

US district Court Judge Gladys Kessler, after hearing mountains of evidence, says this about the tobacco corporations:

• They lied.
• They misrepresented the truth.
• They deceived.
• They concealed.
• They destroyed documents.
• They distorted the truth.
• They abused the legal system.

They conspired to keep away from the public scrutiny documents that demonstrate “smoking’s negative health effects, nicotine addiction, and altered cigarette design to increase addiction, light- and low-tar cigarettes and marketing to young consumers”.

Judge Kessler went on to say:

“In short, defendants have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted”.

But, Big Tobacco did not act alone. Judge Kessler also had comments about Tobacco’s lawyers: they “played an absolutely central role in the creation and perpetuation of the enterprise and the implementation of its fraudulent schemes”.

These findings and Big Tobacco’s willingness to pay millions in order to avoid an airing of the evidence in a court of law come as no surprise to attorneys who have had to litigate against them. Simply reviewing the tobacco documents that have not been destroyed or hidden by Big Tobacco leads to only one conclusion. The tobacco industry has spent a hundred years perfecting a talent for hiding the truth and spinning facts to a point that fact becomes fiction.

Big Tobacco wrote the playbook for all other corporations who have held “shredding parties” and data dumping get-togethers in order to hide their wrongdoing.

It is a part of the Florida Constitution.

It seemed fair to patients. With hospitals and doctors claiming the medical negligence problem was over blown, Florida Section 25, “Patients’ right to know about adverse medical incidents”, seemed like a common sense and fair law.

Read it. It is not very complicated.

But, since 2004, hospitals have been spending a great deal of time and money trying to circumvent, dodge and slip under the law. Sadly, hospitals have had reasonable success in throwing up legal roadblocks to the constitutional “requirement”.

What does Section 25 set forth? It seems pretty straightforward:

1. Patients have the right to have access to any records made or received in the course of business by a health care facility or a health care provider that relate to any adverse medical incident.
2. The health care provider is required to redact the personal information of any patient records released in complying with the law.
3. A patient is intended to mean: an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
4. The law was intended to encompass: “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient.

A Coral Springs man, Harlan Ginsberg, has run headlong into a huge roadblock constructed by Northwest Medical Center, owned by HCA (Hospital Corporation of America), in Margate, Florida.

Mr. Ginsburg suffered a kidney stone attack. In the scheme of medical problems – not exactly a four alarm emergency. Certainly a medical condition that should allow health care providers to be deliberate and careful about their treatment, right?

Before leaving Northwest Medical, however, health care providers had been successful in cutting Mr. Ginsburg’s ureter (a tube that delivers urine to the bladder) and removing a completely healthy kidney, according to testimony of a physician.

Mr. Ginsburg was, understandably, upset. I would be if you removed a perfectly good, properly working organ from my body without even, well, asking me first.

He wanted to know how many other similar incidents occurred at the hospital and what the details were of those other incidents. He asked for the records under Section 25 of the constitution. Northwest Medical refused to provide him with the records. Later, probably after getting some good legal advice, the hospital relented and agreed to search its records for Mr. Ginsburg’s requested data. First, though, the hospital wanted $77,550 up front. I think we can look at $77,550 as a pretty big roadblock.

Section 25 of the Florida Constitution does not set forth anywhere that the hospital is permitted to charge to do a search that will produce the information. In fact, one might argue that if a law requires the provision of certain information, a corporation is intentionally violating the law by not maintaining record keeping in a way that allows compliance. But, that is one of the favored excuses from hospitals – “we do not maintain our records in a way that allows us to easily locate that information”.

Let’s think about that a minute. You run a hospital. I mean let’s pretend you are the CEO of a major hospital corporation. You are sitting in your office trying to determine the types of reports you want to regularly look at to accomplish your job responsibly. Wouldn’t a report that tells you how many medical incidents of negligence or mistake occurred in your hospital be one of the top five reports you would want to see? So, how can that data not be readily available to anyone?

How long will health care facilities and malpractice insurance companies be permitted to simply ignore or to dodge a part of the Florida Constitution? When will our lawmakers start requiring corporate compliance? When will someone stand up for individual citizens rights?

So far, citizens are not seeing any standing up from the executive branch or the legislature.

Florida medical malpractice statutes are a great deal about procedure and less about substance.

As in many states, Florida citizens have suffered the removal of legal rights under Florida’s medical malpractice laws by legislators with specific agendas other than the improvement of citizens’ lives. More often, business and insurance lobbies push for legislation to improve their own financial bottom lines.

In Florida, we have “pre-suit screening procedures” for any medical negligence case before a lawsuit may be filed. These procedures require things like an expert affidavit attesting to the negligence and a 90 day investigation period by all parties. The notion of these things appears to be of value on paper, but in practice – not so much.

The expert affidavit is actually a good idea. Why not require the plaintiff to prove, at least initially, that a good faith basis for a lawsuit exists?

The 90 day pre-suit investigation period would also be a good idea, except for a couple of factors.

Whether it makes any sense or not, medical malpractice insurance companies almost never have any interest in settling a case in the early stages. They want to do a couple of things before they even consider a settlement. First, they want to hold onto their money as long as possible so they can continue to earn investments. Second, they want to see if they can wear down the plaintiff or the plaintiff’s lawyer by spending the plaintiff attorney’s money to litigate the case.

For these and other reasons, for the plaintiff and his lawyer, the 90 day period is filled with a great deal of accumulating documents and responses to questions directed from the insurance company for the physician or hospital. There is almost never any real inquiry of significant substance or discussion of settlement, but mostly an “exercise in exercising” the plaintiff.

I provide this backdrop simply to emphasize the disappointment of a recent case dismissal that was affirmed by the Court of Appeals. The case was filed by another law firm and involved egregious medical malpractice. The basic facts are:

• A man is taken to the emergency room of a local hospital with symptoms of abdominal pain, nausea and vomiting blood.
• The man is found to have elevated blood sugar levels and is in the process of diabetic ketoacidosis.

This is an emergency situation. In fact, from a medical perspective, it should be a four alarm fire. Once the diagnosis of diabetic ketoacidosis was made, the hospital emergency physician knew this man would die without timely treatment by a gastroenterologist.

The decision from the appellate court sets forth that: “Every off-site doctor that [the hospital] contacted refused to come to the hospital to treat” this man. The involved hospital eventually transferred the patient to a hospital in Broward County for treatment, but he died soon after arrival.

The estate for the deceased filed its complaint and apparently alleged that the hospital had violated its duty to provide care and treatment of patients such as the deceased and that care necessarily required providing physicians competent to treat various conditions. So, according to the appellate decision, the plaintiff sued, at least in part, for failures in corporate planning – the failure to provide a framework for properly treating patients. The plaintiff was, in other words, saying that the hospital’s failure, which caused the man’s death, was not medical malpractice, but was corporate negligence. As a result, the plaintiff did not undertake to comply with the pre-suit requirements discussed above.

The appellate court dismissed the lawsuit and set forth that the hospital’s failure did, in fact, constitute medical negligence and the plaintiff’s failure to comply with the pre-suit procedures under the Florida Medical Malpractice statute was fatal to their lawsuit.

So, for largely procedural, administrative, reasons, the death of this young man will go unpunished. No one will be held to account for the gross, reckless conduct of the hospital and its physicians. The family of this poor gentleman will never receive any justice for the callous refusal of the physicians and outrageous failure of the hospital.