Tuesday, December 6, 2011

SHOPLIFTING (alleged) and LAWMAKING (also alleged): how careless legislation becomes law

Mary Hayashi's current conflict with the law is based on her having reportedly been nabbed in the act of shoplifting. Her defense so far is that she inadvertently stepped outside the store with a shopping bag loaded with expensive clothing and that she did so because she'd been distracted by cell phone calls. Sounds careless, doesn't it? But not necessarily done with criminal intent. How does this personal behavior jive with her professional conduct as a legislator?

Remember that during the debate re peer review over AB 655 Hayashi repeatedly stated that there was no opposition. It turns out that this statement is false. The California Society of Industrial Medicine and Surgery sent an advisory letter about defects in the bill while the Alliance for Patient Safety openly opposed the bill. Hayashi had plenty of time to correct the deficiencies in the bill, namely, that as written the legislation allows false and defamatory allegations against good doctors to be transferred from one hospital to another. Hayashi ignored advice to clean up this language. Instead, she belittled doctors who filed protests. Prestigious doctors such as R.V. Rao, MD, Chief of Surgery, the subject of a previous blog of ours, did their level best to advise Hayashi about her folly.

The California Medical Association wanted the bill as is -- in due course investigation will tell us why since the fact is that the chief beneficiaries of the bill are the clients of the California Hospital Association. Hayashi could have written a better bill, at least, some of us think she could have done so. On the other hand, if she's as casual and distracted about bill writing as she claims she is about shopping, maybe not.

Let's look at AB 25, another Hayashi bill signed into law, also well intentioned and also flawed. This bill, signed into law by Gov. Brown who also signed AB 655 into law, takes effect on January 1st, 2012. It will require school districts with extracurricular sports activities "to immediately remove ... an athlete who is suspected of sustaining a concussion or head injury ... the bill would prohibit the return of the athlete to that activity until he or she is evaluated by, and receives written clearance from, a licensed health care provider, as specified."

"As specified" as what? Is neurological or neurosurgical attention required?
Will any ol' "licensed health care provider" qualify for the job? The bill doesn't "specify" that physicians must make these decisions. Prior to passage of this bill, physicians who volunteered for this function put their practices on the line even though they may've worked on a pro bono basis. They risked being named in civil liability suits, e.g., malpractice accusations. Now they're also eligible for criminal accusations. One would have expected the California Neurology Society to seek malpractice waivers for physicians who accept these assignments on a pro bono basis and at the least to have tried to exempt them from criminal responsibility.

As devotees of the Conrad Murray show know, malpractice and criminal liability are separate and distinct. In the Murray trial, the judge stated that the trial was not about malpractice. It was about criminal activity. So it is now with AB 25 for concussions and head injuries sustained by high school athletes. Healthcare providers who accept these assignments may now risk double jeopardy: civil litigation for malpractice and criminal litigation thanks to Hayashi's other folly.

As to Hayashi herself, we're saddened and sorry but not surprised. Anybody who strolls out of a store with a coupla' grand of clothing in a shopping bag doesn't surprise us when she's equally careless with legislation.

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