As I queried after first reading ASH's response to your comments, when did prostitution become legal in the United States?
Mr. Banzhaf is a disgrace to his profession. Protecting the public from malpractice by the medical proffession is one of the purposes of the legal profession, but who will protect the public from the malpractice of the legal profession, for that is exactly what Mr. Banzhaf is proposing to do.
Mr. Banzhaf is just one more item of evidence supporting the contention of people like myself that the anti-smoker cartel has no credibility, is self-serving and corrupt.
Dr. Siegel,
The first words I ever said to you were:
"You are a modern day John Wayne."
Wow! You came out with guns blazing here.
It makes me proud to be an American.
Dr. Siegel wrote:
ASH instead argues that if you flood the courts with enough cases, eventually the heartstrings of a jury, somewhere, will be touched enough to side with the plaintiff.
____________________________________
You have to give Professor Banzhaf credit as a legal genius. He takes advantage of an "imperfect" system. Imperfect because the legal system relies on humans who are inherently mistake prone. BRILLIANT.
Exhibit A:
Banzhaf says:
...is a factual issue for the jury to decide, and the issue must be left to them if reasonably people could possibly differ – as they obviously can on this question.
Translation: If 12 jurors could come to the conclusion that OJ was innocent, despite the fact that his blood was all over place, than anything is possible in the realm of the legal system.
Professor Banzhaf, I admire you despite myself.
Atta boy!
Only glitch is that the anti-smoking forces do, in fact, think that smoking's a disease. I believe they've even gotten it designated as such, at least as a psychiatric disease (behavioral disorder.) And Kessler (remember him?) was referring to teen smoking as a "pediatric disease."
Gotta watch these b------s. They'll get you on a planted semantic technicality if all else fails.
Now may be the time for the AMA to stand up like men, yell loudly from the roofs, and kill this brainchild of the devil in its crib.
The general principle is are professional guidelines legaly enforceable? (Ignoring work proceudres in compliance with law could be, though that is a different issue, the issue here is a 'guideline')
If they are for Doctors then they are for any other profession and this leaves a professional body in the position of making law by issueing guidelines. This can not be the case.
If there is a case to answer, in not following the guidelines, it should be to the professional body in the first instance, not to the court.
If regardless of this point and on this specific instance, it does go to court, it would be neccessary to show that, in not following the guidelines, the patient suffered injury/illness which they would not have suffered had the guidelines been followed. This is an argument along the lines of Dr Siegel's causal chain.
2 points spring to mind.
a) All other advice available.
b) The multifactorial nature of the illness.
From a), the patients own doctor is one place where smoking cessation advice is given. Is this the only advice that should have swayed the person to stop? Why did the person ignore all the other authoritive advice?
From b), it would need to be established that the illness was a direct result of smoking. The McTear case in Scotland shows how difficult this could be in individual cases. (Which is why class actions were required)
The key to getting a result is putting it to a jury, the emotional aspect. There seem to be enough legal questions raised to avoid getting it to that stage. The problem here is that Doctors may fall for this apparent legal blackmail. That would be a sorry state of affirs, not just for Doctors but any health professional or indeed any professional per se. It would actually render the term 'professional' obsolete. Since the professional would no longer be able to exercise independant professional judgement.
west
----
The whole thing reeks of blackmail. Banzhaf needs to be stopped. How much do you want to bet that he also blackmails our Politicians into passing smoking bans? He has them all running scared and if any of them is a Politician for the people, they need to stand up against him and speak out for the Doctors and for every living soul who may be on his next hit list.
Diane
Is this not symptomatic of a judicial system that has been politically coerced into accepting that a person's choice to smoke accepting all inherant risks associated with that choice, does NOT indemnify the Tobacco Company who supplied the tobacco product ?Having CAUSED this ridiculous state of affairs is it little wonder that questionable ethics are attempted by lawyers seeking forever greater pay cheques ?Tobacco Control caused the rot,lawyers who crawl from underneath that rot are merely utilising the current law.Unless you address the root cause,your attempts at sticking a plaster over the problem is doomed to failure.You started the rot 25 years ago,is anything going to change ?
"ASH instead argues that if you flood the courts with enough cases, eventually the heartstrings of a jury, somewhere, will be touched enough to side with the plaintiff."
"Flooding the courts", isn't that what tobacco litigation is all about?
Even if you do not win more than 1 in 1000 cases, each of the 1000 provides a propaganda opportunity, designed to portray the decieved smoker pitted against evil big tobacco. The press runs the rotating machine that dissipates the propaganda.
I must say that I'm quite impressed with Banzhaf's courage and "foresight" to put these statements out in public with his name attached to them.
One would hope that the next time he's in court with a smoking suit that his opponent enters it into the court record, especially the "concept of using legal action as a weapon" and "put strong pressure on hospitals, medical organizations, insurance companies, and ultimately on individual physicians" parts because that really does imply that what's going on is coercion.
Somehow I can't imagine a responsible judge being very amused with "Sympathy may well be more important in a jury'’s consideration of this issue than dry empirical and statistical evidence" either.
While we're at it, I can't believe that "In most jurisdictions, a judge will charge the jury that there is a legal presumption that the plaintiff would have heeded a warning" would be a valid legal argument in this day and age. With the vast array of media attention and public "education" on the "dangers" of smoking, I would think that a reasonable argument could be made that a smoker has already ignored warning after warning....many of them from "authority figures in white coats" such as the Surgeon General.
Dr. Siegel: In the case of a severely ill patient, for example, who is not put on life support and ultimately dies, it is still malpractice even if the patient likely would not have survived.
Hmmm. Now, would it still be malpractice to not use life support if the patient says no?
Would the patient have to put that in writing beforehand or could it be verbal at the time?
I'm curious because it seems to me that it would only require the smoker saying "get stuffed" once to remove the "grounds" for a malpractice suit.
Or, if it needs to be in writing.... what if I, as a smoker, were to go to a physician with a waiver/contract stating I do not intend to quit, do not wish to hear the lectures, and would consider the issue being brought up as grounds for a harassment suit?
If Banzhaf wants to play games it's about some enterprising lawyers on the other side start playing games back.
If "guidelines" can truly prevent disease then every patient who follows their doctor's guideline directed orders and still gets the disease they were supposed to prevent should sue those who make the guidelines for mal-practice.
* it's about time
"Hmmm. Now, would it still be malpractice to not use life support if the patient says no? - Mike Walsh"
Mike, maybe Banzhaf means for the patient's family to pretend the physician didn't suggest life support (the main witness being gone, who is there to prove the contrary?). This way the inheritants and their litigation lawyer can try to extort some money from the physician or the hospital. It might not work in every case, maybe not even in tens of cases.
But hell, you don't expect every lottery ticket to win either, why not try it, you have nothing to lose!
Dr. Siegel, how do you square your comments that smoking is a choice not a disease? You have stated many times that you believe smoking is an addiction. By defitition an addiction is a disease.
Not everyone who smokes is addicted.Are you suggesting that if you drink frequently you could be suffering from a disease ?Sorry but smoking is not a disease,hell you could say umpteen million americans are diseased since they drink coffee to excess or eat McDonalds.It just isn't logical to define it that way.
Carl,
With questions like that I think you are really just playing Devil's Advocate for fun or nuisance. I confess I'm addicted to checking M-W when people say "by definition X = Y." So let's have a look.
From M-W:
addiction=the state of being addicted
addict(v): to devote or surrender (oneself) to something habitually or obsessively (addicted to gambling)
Is World of Warcraft a disease? Should people have small-print warnings on game boxes specifying everything WoW will prevent them from doing--there being so much to detail, that the print is too small to be authoritative(as per ASH's letter?) Perhaps we need to send a letter of Potential Hazards to WoW players every month with their bill just so they don't forget!
I'm not doing this totally out of self-interest. While this reasoning would let me call annoying cell-phoning a disease, alas, I know it isn't.
It is revealing that you say, "And by its own logic, ASH is out of its field in commenting at all on what is appropriate or inappropriate for physicians to do since its executive director, unlike myself, is not a physician and has never so much as treated a patient."
You've forever called ASH a Public Health Organization.
I guess that label isn't convenient right now.
ASH a Public Health Organisation? You must be kidding, just look at their home page:
" Click here to learn how to raise the issue of smoking in a child custody case."
" Click here to learn about the many class action law suits against big tobacco companies."
" Click here to see how you can sue or join class action law suits against big tobacco companies."
"Click here to urge your state to protect foster children from secondhand smoke."
And this:
"Click here to get a free individualized assessment of your risk of getting 12 different cancers."
Wow, this has indeed to do with health. I wonder how they can assess individual(!) cancer risks. Would be an interesting case for litigation for medical malpractice!
And more goodies from ASH:
Moreover, many people who has [sic] asthma, hay fever [!], allergies, emphysema, sinusitis, and many other conditions can be severely irritated [aren't they already irritated?] by even small amounts of drifting tobacco smoke. And those with a prior history of heart problems, who are overweight, have a high cholesterol level, or are simply elderly may be at increased risk of a sudden and deadly heart attack brought on by drifting tobacco smoke. http://ash.org/smoking-in-
condos...apartments.html
Emphasis and [comments] by me.
Sorry for the rambling about ASH, but it's just too ridiculous to let it pass:
Twisted science:
5. But aren't many of the studies statistically insignificant?
No. Some of the studies, because of the relatively smaller number of nonsmokers studied, were not able to establish causation to at least a 95% probability -- the rule of thumb usually used before making a decision based upon only one study. But no reasonable person would willingly agree to be subjected to a substance proven to cause lung cancer to "only" a 90% probability (as most of these studies did). Moreover, when all of these dozens of studies all point in the same direction, the conclusion that ETS causes cancer is established to probabilities of well over 99.99% -- far stronger evidence than we have in virtually any other public health area. - http://nosmoking.ws/ashposition/.../
ashetsinb3.htm
So much for the "Ralph Nader of the Tobacco Industry," an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer,” "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and "The Law Professor Who Masterminded Litigation Against the Tobacco Industry,"
How about "Einstein of Legal Malpractice", "Superman of Twisted Logic", or "Donald Duck who Swims in Extorted Money"?
And an answer to Carl's question about addiction, right from the horses mouth:
No one is addicted to smoking, and there are other ways people who are addicted to nicotine can satisfy their craving. http://nosmoking.ws/ashposition/.../
ashetsinb3.htm
if smoking is a disease shouldn't i be protected by the americans with disabilities act? if that is the case, shouldn't i have many more rights and privileges than i currently enjoy? i'd love a handicapped plackard for my car.
" and who has been called the "Ralph Nader of the Tobacco Industry," an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer,"” "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," "
A medical journal PRINTED this? It sounds like something the "Evil Emperor of the Moon People" would say in his introductory speech to Flash Gordon! I don't think even Benito Mussolini opened his speeches with a set of self-praising honorifics that insanely!
These people never cease to amaze.
Michael J. McFadden
Author of "Dissecting Antismokers' Brains"
http://pasan.TheTruthIsALie.com
My submission, subject to editorial review
It seems the courtroom is the last place anti smoking enthusiasts would want to be, in connection with medical interventions. This seems to be much more in line with a campaign to pressure doctor compliance; by allotting a doctor’s liability carrier a reason to have concern. Getting what they want under threat of higher malpractice premiums.
The courts would be the one place the validity of claims could be measured. It is no secret and has been confirmed in multiple studies: NRT products are incredibly inefficient in aiding a smokers chances of quitting. Although highly efficient in sustaining an addiction. With less than 5% cessation average success 6 months out, compared to 95% cold turkey. Interventions are on the wrong track from the outset. Demanding doctors follow a low confidence methodology which seem to only aid in the sales of addictive nicotine products, will achieve little for the majority of their patients. In a self fulfilling prophesy design; the smokers cost to healthcare will actually increase with billed interventions repeated every time a smoker visits a doctor. Mortality risk may even increase as many will associate doctors with a perpetual scold, and not a comfortable environment where help can be found in non judgmental respect, as would suit the situation more befitting patient doctor relationships.
If for instance a spirited Lawyer intended to make a name for himself a huge opportunity exists. Within court process it would be relatively easy to question validity in the actual effects of ETS and health risk. By insisting a proponent explain if the effect of ETS was more related to a linear of non linear ability of the smoke which are seen to be mutually exclusive. If as the threat to children’s health is measured in Epidemiology studies demonstrating various levels of risk [A linear association]. Any references which are absolutely non linear would erode the confidence we have in the “cannon of evidence” currently guiding public confidence. In the same way if the effect was deemed to be non linear as observed in different countries having varying degrees of health effect to identical exposures, linearity could be questioned. If we consider the WHO and CDC research demonstrating the many varieties of Tobacco ingredients which are controlled by the manufacturers at will, it may lead to the reality we are indeed dealing with a variety of products lumped into a convenient category. Products which have a variable toxic ingredient list much more efficiently managed in product regulation than in harassing it’s users. If we ignore the risk of obvious health effect in non regulation, do we not take the responsibility for the millions of deaths which could occur?
Consumers currently take the brunt of the blame on both sides of disease and cost of disease without any information on the package indicating Content, Origin and Toxins produced, could be realized to be the victims and not the assumed perpetrators. Those we currently punish for non compliance in demands, they quit an addiction? They have little control compared those who should be enforcing more stringently regulation of the so called “targeted industry”, who’s profits have never been higher since we began to punish them. In this light TC has been a dismal failure in expressing campaign initiative in denormalizing smoking. In actual observations; this plays out as denormalizing smokers. Perhaps finding it easier to punish those who can not defend themselves. It would be very easy if a multitude of trials did commence to see TC as the co-conspirators in a good guy bad guy coercive scheme. Participating with tobacco manufacturers to mutual benefit to the peril of their uninformed victims.
Who would then be facing huge lawsuits, if such were demonstrated in numerous proposed malpractice lawsuits targeting doctors?
Kevin wrote
"were demonstrated in numerous proposed malpractice lawsuits targeting doctors?"
IMHO he is not targeting Doctors, just using them to refuse to have people that smoke on their books due to the threat of lawsuits and higher malpractice insurance premiums.
He is once again targeting smokers by any means available, the fact that he is using Doctors is imaterial.
I wonder how the medical fraternity now view this man? Still a "hero" Doctor Siegel?
GreatScot
Carl: You've forever called ASH a Public Health Organization.
Since when does using the term "public health organization" mean they're physicians, have physicians involved, or even know any physicians?
GreatScot--
How's your wife doing, and what's happening with the cops?
Best wishes to you both.
:
Walt,
thanks for asking.
She was back at the Doctors yesterday, she has a very large Haemotoma (sorry about the spelling Doc)on her hip from being knocked over the wall. She is on anti-biotics and pain killers. She can't bear any pressure on the swelling and can't even put a pair of jeans on. She has been charged with assault and has to live with this charge for monthes until the Proculator Fiscal decides if he will procede or not.
Observation,
Not a word of concern or sympathy from any anti...guilty conscience???
Thanks again to all the good people out there.
GreatScot
Walt,
Forgot to mention the state of the rest of her injuries.
Stitches now out from nose and elbow, she will be scarred for life. Broken nose and forehead still tender to the touch but should make full recovery, maybe a slight mis-shape to nose. Chiped tooth will be fixed by our Dentist. Black eyes all better. Her confidence will take longer to heal.
GreatScot
Your wife's injuries sound horrific GreatScott,i bet the little s**t hasn't got a mark on him.I thought we lived in a reasonable society but this country has been dragged down and become so politically correct that it has totally lost sight of the real world and what is happening in it.It makes my blood boil .Have you spoken to your MP to see if they will help at all ?You have my full sympathy,i just wish i could do more.
Thanks si,
Her injuries are pretty horific, and more I think about the more I blame the smoking ban in pubs. That is not to excuse the little darling, his behaviour was shocking and without a doubt the fabrics of society are unravelling. BUT we would never have been exposed had we been able to have a smoke inside.
BTW I bought some of that American spirit rolling baccy. Tastes good but my rolling skills leave a LOT to be desired.
GreatScot
GreatScot i have to use a rolling machine (for woodbine size) or a rollbox which is what i always use to make the old export gauge.Choice of paper makes a big difference as well.www.ryomagazine.com is a great website.Hope this helps.
Great Scot--
Not only am I deeply sympathetic, I'm broiling mad. More than ever I suggest you get a private detective to investigate the kid, and take pix of him too that show him unblemished. Then too, he could learn if there's a history of incidents near this...club, or whatever the place was?. I'd also be busy gathering depositions favorable to your wife. And how bout getting in touch with the folx at Forrest ? MPs are on their board, they're pretty well wired, and might be able to get you some pro bono help.You badly need a lawyer.
PS: Your wife is beautiful and the scars don't show.
:
I've read the rapid response letters by Mike Siegel and by John Banzhaf, and I think Banzhaf's letter is more accurate.
More accurate to whose agenda Bill ?
The question is not if it is more accurate. The question is if one person should be given the right to twist legislation to achieve his personal goals.
What democracy is this? It rather looks like dictatorship by an unelected individual to me.
Bear in mind that 90% of the lawyers that I am associated with (myself included) believe that banzof should be removed from practice. In essence those of us in Wash. D. C. already consider him as such. All one has to do is stand up to the wimp and he folds. All yap and absolutely no substance. At George Washington University (his current home) he is known as "the walking cancer". Not a cure for cancer.
Welcome to our rants, BostonRay.
Is there anything DC lawyers can do about him? Or even about IT (the whole bloody mess)? Lobbying congress? I get to DC with some frequency. Have, in fact, once testified at a hearing (debating Banzaf) and would be more than happy to do...whatever, if I knew where to do it, and to whom.
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