Is There A Lawyer In The House?


Since the Supreme Court decision upholding the constitutionality of the Patient Protection and Affordable Care Act, otherwise known by the vulgar term ‘Obamacare’, we have all commiserated over the breadth and scope of the Act and the abominable nature of many of it’s provisions.  The regulatory agencies and cabinet departments, chiefly HHS, started promulgating rules and procedures even before the Act was ruled on by the Supreme Court, and are now churning them out, even as some states resist by declining to install health care insurance “exchanges”, expand Medicaid, and so on.

We were pretty much resigned to suffering the consequences of Obamacare, which really doesn’t pick up steam legally until 2014.  Horror stories about Death Panels and doctor shortages and massive funding shortfalls, pointing to severe hardship,  denial of care, outrageous expense of medical ‘devices’ due to new taxation, et cetera,  weigh heavily on everyone’s mind.

The most depressing development in all this was the complete and abject surrender of Republicans, who had vowed, when they were seeking election and re-election, to fight Obamacare tooth-and-nail and forego all other pursuits until it was overturned.  Weren’t their speeches just ….heroic?

The final straw in our long national nightmare perhaps was the other day when word came from the State of California that doctor shortages out there would become so severe that Opthalmologists and some certain categories of Nurses would have to be pressed into service to take up the slack.  It wasn’t immediately clear whether Veterinarians would be called to the front.  Wanna play doctor?  It’s so simple a chiropractor could do it.

SACRAMENTO — Facing a doctor shortage in California, state lawmakers want to fill the gap by redefining who can provide healthcare in the Golden State.

As detailed in Sunday’s Los Angeles Times, they are working on proposals that would allow physician assistants to treat more patients and nurse practitioners to set up independent practices. Pharmacists and optometrists could act as primary care providers, diagnosing and managing some chronic illnesses, such as diabetes and high-blood pressure.

And that’s when it struck us.  Forget Congress, forget the Tea Party, forget States Attorney Generals, our eventual salvation may yet come from the shyst  barristers.  The operative word is “malpractice.”  Enlightened self-interest on the part of the ambulance-chasing set may yet save us all, if only we can make them see the light.

We couldn’t get the doctors to protest;  we lost the journalists eons ago.  But the members of The Bar have always been amenable to any argument affecting their cash flow.  And here it is:  If the doctor shortages are as severe as predicted, in California and across the nation, and if shortcuts are taken, mistakes are going to be made, as well as plain old bad decisions. Lots and lots of bad decisions. Whether first-year med students, assuming any volunteer to be abused by the system,  are supervised or not, they will screw up.  A lot.  Ethics?  You get an inveterate tooth-puller in there doing delicate internal organ repair and he might first do a lot of harm.  Oh, liability most foul!  Can you say “Gold Mine?”

We have not yet heard in summaries of the 2,700-page  Affordable Care Act or anything coming out of California about immunities or waivers with a view to getting around large damage suits.  Isn’t it ironic that in red states which have passed tort reform, Obamacare might have fared better because sloppy care wouldn’t be punished as severely?  Of course, in theory, we’re not yet at single-provider, we’re merely headed toward single-payer.  But if it gets as bad as some think it’s going to get in this country, with doctors resigning in droves and  replacements and reinforcements hard to come by, a National Health Service on a scale not even matched by the British, maybe even the Soviets of the good old days,  may become de rigeur in the US.

Everyone knows you can’t sue the government, right?  Well, that rule has been suspended for a while under Barack H. Obama and Minister of Regulation Cass Sunstein as Cabinet-level Departments and Agencies have gone so far as to give  grants to special interest groups to use to turn around  and file federal suit against the very same agencies to obtain a political objective.  That practice is about to come to a screeching halt because a. the revenue stream is drying up and b. the Fundamental Transformation is almost complete and tree-huggers and bleeding heart sociologists will soon no longer be needed.  If suing the government was once possible, looking cross-eyed at the government is one day  going  to become a capital offense.

So.  Unless some of our more trend-observant lawyers like the divorce attorney salt lake city wake up in the very near term and use their cunning and legal skills to put a stop to the long train of usurpation of private professional practice and the obliteration of codes of conduct, they are themselves essentially going to be out of business.  Simply put, if the government is paying the salaries of the paramedics it is going to employ to practice medicine (sic) in this country, it isn’t going to allow them to be sued when Harriet’s hip refuses to rotate after being manhandled by an incompetent.  Wrongful death?  Ha!  The government can do no wrong.

When you ladies and gentlemen in private practice come to your senses and finally realize that  Hillary Clinton and Barack Obama are no longer godsends  to your profession, you,  by taking back what two hundred plus years of case law and contract law and precedent and Constitutional provisos have given you – the ability and the right to make a comfortable living while representing the oppressed and the abused and the wronged – will be doing not only yourselves a service, but a service to your country.  For while we joke and scold about “you -who – hang – out – shingles” being ‘ambulance-chasers’ and opportunists and yes, even blood suckers sometimes, we must in all candor cede that there have been many times when your efforts, whether  pure in motive or not, have resulted to the benefit of society.  Not all improvements in methods and measures and standard operating procedures resulting from litigation have been unworthy of the time and expense to remedially incorporate, in medicine or industry or routine business.  When the boot on the neck gets weighty, of course, we protest.

At any rate,  It’s all up to you folks, now.  We The People have given it our best shot – at the ballot box, in our social and political forums.  We have been met with  nothing but disappointment, both in our elected officials and in our appointed jurists whom we thought were ‘on our side’ and on the side of law and constitution.  We have no recourse now but to turn to you, to appeal to your self-interest and perhaps tangentially your patriotism and to urge you to …….START SUING!  NOW!!!  BEFORE IT’S TOO LATE!!!!!!

And …….get ………creative.    In our research (well, such as it is) for this article we came across something in the ABA Journals referencing the Anti Injunction Act, which is supposed to keep citizens from suing to prevent the collection of taxes before the fact.  Quizzically, this provision was barred from being in force in the monstrosity known as Obamacare, if we are not mistaken (and we are often mistaken).  So in addition to suing for damages, restitution and punishment for wrongs,  there are probably all kinds of avenues to not only convince  medical providers it would be in their best interest to join the Anti-Obamacare Crusade, but possibly even to stymie the tax man and bring the whole disgusting episode crashing in upon itself. Put your clerks and paralegals to doing the research and prepare to do battle.  (BTW, if you can put some Democrats in jail while you’re at it, feel free.)

In any event,  if you thought tort reform in Texas was too cumbersome for your tastes,  you ain’t seen nothin’ yet.   You will be unpleasantly surprised when your practice of contract law, personal injury specialty and class-action suits withers up and blows away under the Fundamental Transformation. But if you were in an accident you should contact the best personal injury lawyers. See, there are “the several States” and then there is “The State.”  The Statists are not about insuring that you make, or enjoy,  or get to keep, everything you have become accustomed to.  They are about destroying the  old system and its practices, the good as well as the selfish.  The Devil you and we all know in civil litigation would be infinitely preferrable to the lawless authoritarian arrangement they have in mind.

So think about it.  Or, you could just go to work for Heinrich Holder. 


{Crossposted at Grumpy Opinions}




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February 16, 2013 2:54 pm

The lawyers always thought they’d be the ones the alligator eats last, Bob. Just not this soon. Boy, if Bill Mazerowski just hadn’t hit that home run.

February 17, 2013 8:08 am

I’m all for lawyers making a stand against this horrible law. Have you read the Rivkin and Casey newest proposition to derail the law, basically challenging it on the Uniformity Clause? It’s behind the paywall on WSJ, but here is the gist from: “If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’s “Uniformity Clause” (Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” “ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new,… Read more »

February 17, 2013 7:52 pm

All attorneys are creative just like Jarrett. I have no doubt they are seeing this as a gold mine and are plotting now.

Ohio has tort reform thanks to a bunch of docs, including me having a rally on Columbus court house steps about 10 years ago. We will see how this fairs under Obamacare.