May 2003 Newsletter- San Diego County Public Law Library

Witkin Lecture Speaker and Date Have Changed!  For more details, click on story "Lunch with a Famous Lawyer- Chemerinsky Replaces Brosnahan" at left.

Focus on Medical Information  With concern over SARS reaching new levels, medical info is the hottest thing next to fashionable medical face masks. Thus, this issue mainly focuses on information about new medical laws, databases, books and web sites. Enjoy!

New Medical Malpractice Reporting Law  Lawsuits against doctors who perform the LASIK eye surgery may be the next big trend in medical malpractice litigation. An interesting article in an east San Francisco newspaper noted that many doctors are being sued for failure to properly inform patients of the risk of the surgery and failure to properly determine if a patient is even a good candidate for the surgery. In fact, the article reports that one LASIK doctor here in San Diego county has had 26 medical malpractice claims filed against him within the past few years. Trying to find out if a physician has been sued for malpractice used to be difficult, as many doctors chose to settle out of court for less than $30,000, because then the case is not reported by their professional liability insurer to either the Medical Board of California or the Osteopathic Medical Board of California (per section 801 of the Business and Professions code). A new law, originally Senate Bill 1950 sponsored by Senator Liz Figueroa (D-Fremont), changes all that. This law now requires a professional liability insurer to "report a civil judgment in any amount in a malpractice action, whether or not the judgment was subsequently vacated by a settlement, if the judgment is not reversed on appeal and would include this information, as well as other specified data, among the items that the Medical Board of California and the California Board of Podiatric Medicine are required to disclose to an inquiring member of the public." The bill also requires the Medical Board of California to post this information on its Internet site.

New Medical Privacy Rule  On April 21st, a new privacy standard, called the Privacy Rule and issued by the U.S. Department of Health and Human Services (DHHS), went into effect to protect personal health information and sent medical offices all over the country scrambling to lock their file cabinets. This new rule, authorized by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. This type of information is called "protected health information" (PHI). "Individually identifiable health information" is defined as information, including demographic data, that relates to: the individual's past, present or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number). The Privacy Rule does have some exceptions, and the DHHS' Office of Civil Rights (OCR) has an excellent brief explaining them at http://www.hhs.gov/ocr/privacysummary.rtf. OCR is also in charge of punishing non-compliant entities with civil penalties ranging up to $25,000 per year. The Department of Justice is in charge of administering criminal punshiment, starting with a $50,000 fine and up to one-year of imprisonment to a $250,000 fine and up to ten years of imprisonment.

Spin Doctor??  This cartoon is one of Stu's Views. These are cartoons by a local lawyer, geared for lawyers. Stu is an entertainment lawyer here in San Diego who represents mostly visual arts creators. As he says in his bio on his home page, "Stu is the lawyer for cartoonists and the cartoonist for lawyers." See other cartoons by Stu at www.stus.com.

CLOSED for Memorial Day - May 26th  In honor of Memorial Day, all locations of the San Diego County Public Law Library will be closed on Monday, May 26th. We will reopen Tuesday, May 27th with normal hours.

Lunch with a Famous Lawyer- Chemerinsky Replaces Brosnahan  Due to a lengthy trial, noted San Francisco litigator James Brosnahan will not be available for San Diego's inaugural Witkin Lecture. In his stead, constitutional law guru and USC Professor Erwin Chemerinsky has graciously agreed to discuss significant decisions by the United States Supreme Court this term. Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School. He has authored four books and hundreds of articles on a panoply of legal subjects, and is a frequent commentator in the popular press, particularly on questions of constitutional law. Professor Chemerinsky also argues high-profile cases before appellate courts throughout the country, most recently appearing before the United States Supreme Court in Lockyer v. Andrade, the case that challenged the constitutionality of California's "three strikes" law. Please join us for a noontime discussion that promises to be both thoughtful and dynamic. As a result of the change in speakers, the date for the lecture has been moved to June 17, 2003. Registration starts at 11:45 a.m., lunch will be served at 12:15 p.m., and Professor Chemerinsky will begin speaking at approximately 12:45 p.m. The place is still the same, U.S. Grant Hotel, 326 Broadway, San Diego, and so is the opportunity to earn MCLE credit*. Tickets are still $25 and include a lunch of soup, chicken caesar salad, dessert and beverage. You can make reservations by calling Amy Conrad at (619) 531-4449 or e-mailing her at aconrad@sdcpll.org. This lecture is being presented by the Witkin Legal Institute in cooperation with the Law Library Justice Foundation. The Witkin Legal Institute sponsors Witkin Lecture speakers at several California cities as part of its distribution of proceeds from the sale of the several law treatises originally authored by the late Bernard E. Witkin. This is the first lecture in San Diego. The Witkin Legal Institute is owned by Thomson West. The Law Library Justice Foundation is a charitable trust, affiliated with the San Diego County Public Law Library. Additional sponsorship costs will be covered by its Fred Lindley Lecture Series Fund. *Thomson West has been approved as a continuing legal education provider of Minimum Continuing Legal Education credit by the State Bar of California. This program will qualify for Participatory Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1.0 hours.

Medical Databases  Need medical information or experts? Try these sites. Two of them charge a fee (indicated by $$) for access to certain parts of their site. MedJournal.com- http://www.medjournal.com- This free site links to full text medical journals such as JAMA and LANCET and also provides the latest headlines in the medical world. If you need to find out about a particular disease or current treatment, this is the place to go! MDEX Online ($$)- http://www.mdexonline.com/ This site is designed primarily for the plaintiff's personal injury bar, but there are helpful resources here for the defense side as well. Two of the highlights of the site are the "Daubert Tracker," which lists every Daubert-related opinion issued to date, opinions, dockets, and transcripts in cases with Daubert issues, and a free Wage Impact Calculator. MDEX also has experts available to review medical records, perform litigation support, assess economic damages, and consult on various medical issues. Daubert on the Web- http://www.daubertontheweb.com/ Speaking of Daubert, most of you know that a Daubert motion (pronounced Dow-burt) deals with the admissibility of expert opinions at trial, but did you know about this website? Simply put, it is one of the best sources of Daubert information on the web. Maintained by Peter Nordberg, a Philadelphia lawyer, it not only features a section interpreting the Daubert opinion, but also has an area describing the various procedural steps to take in federal court, a listing of Daubert opinions by federal circuit (including the Ninth) , and suggested tactics for getting around a Daubert challenge. Questionable Doctors ($$) This database, run by the Ralph Nader foundation Public Citizen, covers 27 states (including California) and contains information on doctors who have been disciplined by state medical boards and federal agencies in the past ten years. It contains data on disciplinary actions taken for medical incompetence, misprescribing drugs, sexual misconduct, criminal convictions, ethical lapses and other offenses. You don't pay upfront-- you are allowed to search for a particular doctor's name and see if there is a report about them first. You can view a free summary report of the physician, which tells you what agency or licensing board has disciplined the doctor, but to see the full summary you must be a subscriber. The cost is minimal-- $10 for 10 disciplinary reports or for a one-year membership.

Internet Posting is Out of Reach of CA's Long Arm Statute  Many people have been scratching their heads wondering if posting information on the Internet would subject them to prosecution or lawsuits in every state. The answer, at least in California, is no. Recently the California Supreme Court handed down the decision Pavlovich v. Superior Court, 29 C4th 262 (2002). The case concerns a university student who wrote and posted a program on the Internet that would permit people who downloaded the program to get past the encryption on DVDs that protected them from illegal use. The DVD Copy Control Association sued Pavlovich in state court, claiming that he had misappropriated trade secrets, and argued that he was subject to jursidiction using California's long arm statute. The superior court allowed it and the court of appeals affirmed the decision. They both got reversed by a narrow 4-3 decision by the Supreme Court, which ruled that California could not exercise jurisdiction over Pavlovich since his sole contact with California was the passive posting on his website. He doesn't own property here, have a phone number in California, have an office here, and his site did not expressly aim or target the information at the state of California. The Court used the Zippo (952 F Supp 1119 (1997)) sliding scale analysis to justify its decision, but also said this was a close call. Factors affecting their decision included noting that "...web site merely posts information and has no interactive features. There is no evidence in the record suggesting that the site targeted California. Indeed, there is no evidence that any California resident ever visited, much less downloaded the DeCSS source code from, the LiVid Web site." Does that mean that other Internet site authors can be hauled into court if their site is interactive and aimed at Californians? Perhaps. Stay tuned....

In Trouble  The Trevor Law Group is in serious trouble. Not only has the California Attorney General filed suit against them, alleging that the firm attempted to generate more than $20 million in out-of-court settlements by filing baseless unfair-competition lawsuits against immigrant business owners in order to extort settlements, the California State Bar is looking at disbarring the firm's three partners. Read more about it here.

New Books- May 2003  Here is our newest acquisition dealing with medical information. Please note that while this set is located only at Main, it does circulate and can be sent to our branches upon a request from the branch. ATTORNEYS MEDICAL DESKBOOK by Dan J. Tennenhouse, 3rd edition, West Publishing, 2003. The author of this three volume set has both a JD and an MD and is a nationally recognized expert on risk management education. This set is nicely indexed and cross-referenced and provides attorneys with the necessary medical background for cases involving personal injury, medical malpractice, wrongful death, and workers' compensation. Discusses how diagnostic tests are administered and what the results mean as well as explaining how to interpret medical records. Available at Main at RA1028 .T46 1993.

Law Day 2003  Every year on May 1st, the San Diego County Public Law Library participates in Law Day, a nationally recognized day praising the presence and value of law in our government. Originally conceived in the 1950s by Charles S. Rhyne, former president of the American Bar Association, Law Day was formally recognized via a Proclamation by President Eisenhower on Feb. 3rd, 1958. This year, the theme of Law Day was "Celebrate Your Freedom-Independent Courts Protect Our Liberties." The Main Library and each branch of the San Diego County Public Law Library celebrated Law Day this year by serving refreshments, presenting programs and free legal advice clinics, and giving away prizes for answering legal trivia questions.

Weird Names of Doctors  Would you want to see a doctor named Dr. Hurt? What about Dr. Payne? A list of doctors with funny, strange, or weirdly coincidental names has been compiled by some medical librarians and posted here. The names are listed according to specialty. For example, Dr Smellsey is a podiatrist, Dr. Moodie is a psychiatrist, and Dr. Dick Tapper is a urologist.

We hope you've enjoyed our newsletter. We're hard at work on the next edition. In the meantime, please visit us online at: http://www.sdcpll.org/. And come see us in person at one of our locations. For locations and hours please click here: http://www.sdcpll.org/location.htm. For more information contact: Amy Hale-Janeke ahale@sdcll.org Media Coordinator / Reference Librarian (619) 531-3900